     Case: 12-60431       Document: 00512302621         Page: 1     Date Filed: 07/10/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            July 10, 2013
                                     No. 12-60431
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

MANOJ KUMAR KARKI,

                                                  Petitioner

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

                                                  Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A087 592 123


Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Petitioner Manoj Kumar Karki, a native and citizen of Nepal, petitions for
review of the decision of the Board of Immigration Appeals (“BIA”) dismissing
his appeal of the Immigration Judge’s (“IJ”) order denying his applications for
asylum, withholding of removal, and protection under the Convention Against
Torture (“CAT”). Karki concedes that he is removable as charged. He argues
that his mistreatment by Maoists rose to the level of persecution and was
principally motivated by his association with the Royal Nepalese Army, and that

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
    Case: 12-60431     Document: 00512302621      Page: 2   Date Filed: 07/10/2013

                                  No. 12-60431

he has a well-founded fear of future persecution in Nepal. We review the BIA’s
findings of fact for substantial evidence, and its conclusions of law de novo. Zhu
v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007).
      The BIA affirmed the IJ’s denial of Karki’s asylum claim on three
independent grounds. First, the BIA held that the mistreatment alleged by
Karki—specifically, that he was slapped on two occasions and threatened on
three occasions—“was not sufficiently severe to constitute persecution.” We
agree. See Tesfamichael v. Gonzales, 469 F.3d 109, 116 (5th Cir. 2006) (noting
that “extreme conduct” is required to establish persecution); Eduard v. Ashcroft,
379 F.3d 182, 188 (5th Cir. 2004) (holding that petitioner who was “struck in the
head with a rock while walking to church” and exposed to “denigration,
harassment, and threats” did not establish past persecution); see also Chen v.
Ashcroft, 46 F. App’x 732 (5th Cir. 2002) (per curiam) (holding that fines, slaps,
punches, and kicks by agents of the Chinese government did not rise to the level
of extreme conduct necessary to compel a finding of past persecution). Second,
the BIA endorsed the factual finding of the IJ that Karki’s mistreatment was not
motivated by his “political opinion or any other protected characteristic.” This
finding is supported by substantial evidence.         Although Karki’s former
membership in and support for the Royal Nepalese Army may qualify as a
protected characteristic, In re C-A-, 23 I. & N. Dec. 951, 955 (B.I.A. 2006), the
record supports the BIA’s finding that his mistreatment was motivated not by
his association with the army, but by a desire to convince him to join the Maoist
cause. Third, the BIA concurred with the IJ’s determination that Karki “did not
demonstrate that he has a well-founded fear of [future] persecution in Nepal.”
We perceive no error in the BIA’s weighing of the Chen factors. See Chen v.
Gonzales, 470 F.3d 1131, 1135–36 (5th Cir. 2006). In sum, we conclude that the
denial of Karki’s application for asylum is supported by substantial evidence.




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                                  No. 12-60431

      Karki’s failure to satisfy the lower burden of proof necessary to obtain
asylum prevents him from satisfying the higher burden of proof for withholding
of removal. See Majd v. Gonzales, 446 F.3d 590, 595 (5th Cir. 2006).
      With respect to his CAT claim, Karki provided no evidence that he was
tortured in the past, and his three unfortunate encounters with Maoists do not
establish that it is more likely than not that he would be singled out by the
government for torture if he returns to Nepal. See Tamara-Gomez v. Gonzales,
447 F.3d 343, 350–51 (5th Cir. 2006) (“[R]elief under the [CAT] requires a two
part analysis—first, is it more likely than not that the alien will be tortured
upon return to his homeland; and second, is there sufficient state action involved
in that torture.”) (internal footnote omitted); see also Alcantara v. Holder, 493
F. App’x 511, 514–15 (5th Cir. 2012) (per curiam) (holding that substantial
evidence supported the BIA’s determination that petitioner did not show that it
was more likely than not that he would be tortured by state authorities upon his
return to Mexico).
      The petition for review is DENIED.




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