                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                     No. 09-2270
                                    _____________

                     PURANDHAR DHITAL; SHANTI DHITAL;
                       ASMITA DHITAL; AYUSH DHITAL,
                                      Petitioners

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                    Respondent
                             _____________

         On Petition for Review of Order of the Board of Immigration Appeals
      (Agency Nos. A098 903 113, A098 903 114, A098 903 115 & A098 903 116)
                     Immigration Judge: Hon. Rosalind K. Malloy
                                   _____________

                     Submitted Under Third Circuit L.A.R. 34.1(a),
                                  January 25, 2011

    BEFORE: FUENTES, CHAGARES, Circuit Judges, and POLLAK, District Judge *

                            (Opinion Filed: April 05, 2011)
                                   _____________

                              OPINION OF THE COURT
                                   _____________
FUENTES, Circuit Judge.

       Petitioners, Purandhar Dhital ("Dhital"), his wife Shanti Dhital, and their two

children, Asmita Dhital and Ayush Dhital, seek review of a Bureau of Immigration


*
 Honorable Louis H. Pollak, Judge of the United States District Court for the Eastern
District of Pennsylvania, sitting by designation.
                                            1
Appeals ("BIA") order affirming the immigration judge's ("IJ") ruling that they are not

entitled to asylum, withholding of removal, or protection under the Convention Against

Torture ("CAT"). We deny their petitions, for the reasons set forth below.

                                            I.

      Because we write for the parties, we discuss the facts only to the extent necessary

for resolution of the issues raised on appeal. Dhital entered the United States from his

native country of Nepal sometime around September 1, 1997 on a student visa. His

family followed shortly after.   Ultimately, the Dhitals' visas were set to expire on

December 18, 2004.      They filed petitions for asylum, withholding of removal and

protection under the CAT on January 18, 2005.          Hearings on their petitions were

conducted on September 14, 2006 and November 28, 2008.

      Dhital testified that he was afraid to return to Nepal for several reasons. First, he

testified that ongoing conflict between Maoist guerillas and the Nepalese government

makes Nepal a violent and unstable place to live. Second, in November 2004, Dhital's

brother—who lives in Nepal—received a letter, addressed to Dhital, threatening violence

against Dhital unless he gave a Maoist leader 25 lakhs, which is equal to approximately

$34,000. Third, Dhital testified that the Maoists might be targeting him because of his

past membership in the United Marxist Leninists ("UML")—an organization promoting,

among other things, democracy, women's rights and social services—or because of his

past membership in Nepal's University Teacher's Association ("NUTA"). He also stated

that university-educated friends and colleagues associated with the West had been

harmed upon their return to Nepal.

                                            2
       The IJ recognized that the Maoists are a violent terrorist organization that has

created strife for the Nepalese government and its citizens.          Nevertheless, the IJ

concluded that Dhital was not eligible for relief because (1) there was no evidence that

Maoists had persecuted Dhital in the past; (2) there was no evidence that Maoists were

targeting the "western educated," only evidence that they had targeted individuals with

wealth; (3) there was no evidence that Dhital was targeted because of his membership,

over a decade ago, in the UML or the NUTA; (4) the extortion letter Dhital's brother

received was sent seven years after Dhital left Nepal—just a few months before he

applied to remain in the United States—even though the Maoists were active in Nepal

before 1997; (5) there was no follow-up or harm as a result of the failure to comply with

the extortion letter; and (6) Dhital's oldest son returned to Nepal in March 2004 and, just

like Dhital's brother, has not been harmed.

       The IJ also found that Dhital's testimony about the extortion letter was not entirely

credible because of variations in the story about the extortion letter, its timing, and the

fact that the authors of the letter never followed through on their promise to demand more

money if the initial amount was not paid.           According to the IJ, Dhital's fears of

persecution were purely speculative.

                                              II.

       We have jurisdiction under 8 U.S.C. § 1252(a). To qualify for asylum, the

petitioners must show that they are “unable or unwilling to return to [Nepal] . . . because

of persecution or a well-founded fear of persecution on account of race, religion,

nationality, membership in a particular social group or political opinion.” 8 U.S.C. §

                                              3
1101(a)(42); see also 8 U.S.C. § 1158(b)(1)(A). A petitioner's failure to demonstrate

eligibility for asylum necessarily means that he failed to meet the higher burden of proof

for statutory withholding of removal. See Mudric v. Attorney General, 469 F.3d 94, 102

n.8 (3d Cir. 2006). For relief under the CAT, the petitioners must demonstrate that it is

more likely than not that they would be tortured if removed to Nepal. See 8 C.F.R. §

208.16(c)(2); see also Pierre v. Attorney General, 528 F.3d 180, 186, 189 (3d Cir. 2008)

(en banc).

       Because the BIA’s original final order of removal summarily affirmed the IJ, we

review the IJ's decision directly. Mudric, 469 F.3d at 101. Our review of the IJ's

decision is for substantial evidence, considering whether it is “supported by reasonable,

substantial, and probative evidence on the record considered as a whole.” Lin-Zheng v.

Attorney General, 557 F.3d 147, 155 (3d Cir. 2009) (en banc) (internal citation omitted).

Adverse credibility determinations are reviewed under the same standard, and must be

upheld "unless 'any reasonable adjudicator would be compelled to conclude to the

contrary.'" Id. (quoting 8 U.S.C. § 1252(b)(4)(B)).

                                            III.

       Dhital argues that the IJ's ruling is not supported by reasonable, substantial and

probative evidence. We disagree. Dhital's generalized fears of violence in Nepal are not

enough to obtain asylum. See Al-Fara v. Gonzales, 404 F.3d 733, 740 (3d Cir. 2005)

(recognizing that "harm resulting from country-wide civil strife is not persecution on

'account of' any enumerated statutory factor"). Nor is his speculation that he might be

targeted because of his education and stay in the United States. The IJ concluded that the

                                             4
evidence demonstrated, at most, that Maoists are targeting people of means, not the

"western educated." The wealthy are not a protected class. Neither are the "western

educated." And even if the western educated are a protected class, the IJ's conclusion that

Dhital was not targeted because of his membership in such a class is supported by

substantial evidence. (See, e.g., Admin. Rec. at 161 (Dhital referring to attack on student

as "crookery") and 192 (Dhital admitting that he ignored the extortion letter at first

because "there may be some crooks in the community . . .")).

        The IJ's conclusion that Dhital does not have a well-founded fear of future

persecution also finds substantial support in the evidence. Dhital's son returned to Nepal

without suffering harm, no harm has come to pass as a result of the extortion letter, and

Dhital's brother has not been the target of violence. See Lie v. Ashcroft, 396 F.3d 530, 537

(3d Cir. 2005) (“[W]hen family members remain in [the] petitioner’s native country

without meeting harm, and there is no individualized showing that petitioner would be

singled out for persecution, the reasonableness of a petitioner’s well-founded fear of

future persecution is diminished.”). Moreover, we cannot conclude that "any reasonable

adjudicator" would be compelled to find Dhital's extortion-letter-related testimony to be

credible. The IJ found that it was not credible and we uphold that determination.

        Dhital's contention that he is entitled to relief under the CAT fares no better. 1

There is no evidence that Dhital has been tortured or would be tortured upon his return.

The extortion letter does not threaten torture. Dhital speculated that he might be subject


1
 The government argues that Dhital waived this issue by not presenting it to the BIA. We conclude that he did.
(Admin. Rec. at 37 (noting that Dhital sought relief under the CAT)).

                                                        5
to generalized violence upon his return to Nepal. But this, too, does not constitute

torture. And even if it did, the CAT requires that the torture be inflicted “by or at the

instigation of or with the consent or acquiescence of a public official or other person

acting in an official capacity.” 8 C.F.R. § 208.18(a)(1). There is no evidence that public

officials might torture Dhital. In short, we find no reason to disturb the IJ's ruling on

Dhital's CAT claim.

                                             IV.

      The IJ's conclusion is supported by substantial evidence.        For the foregoing

reasons, we deny the petitions for review.




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