          United States Court of Appeals
                      For the First Circuit


No. 13-1582

                        KISHAN THAPALIYA,

                           Petitioner,

                                v.

      ERIC H. HOLDER, JR., United States Attorney General,

                           Respondent.


              PETITION FOR REVIEW FROM AN ORDER OF
                THE BOARD OF IMMIGRATION APPEALS


                              Before

                     Howard, Stahl and Lipez,
                          Circuit Judges.



     Steve J. Gutherz on brief for petitioner.
     Stuart F. Delery, Assistant Attorney General, M. Jocelyn Lopez
Wright, Senior     Litigation  Counsel, Office     of   Immigration
Litigation, and Margot L. Carter, Trial Attorney, on brief for
respondent.



                          April 24, 2014
            HOWARD, Circuit Judge.            Petitioner Kishan Thapaliya, a

native of Nepal, suffered a single beating by a group of Maoists in

April   2003    and   now   challenges     the   decision      of    the    Board   of

Immigration     Appeals     ("Board")    which    affirmed      the     Immigration

Judge's ("IJ") denial of his request for asylum.                        The record

evidence does not compel a conclusion contrary to the agency's

decision,      even   though    the   Maoists    also    may    have       threatened

Thapaliya with a gun during the isolated event.                     Accordingly, we

deny the petition.

                                I. Background

      Thapaliya entered the United States from Nepal in August 2004

on a student visa.      Because he failed to carry a full course-load,

the Department of Homeland Security eventually initiated removal

proceedings against him.        Thapaliya conceded removability, and, in

May 2010, sought asylum, withholding of removal, protection under

the   Convention      Against    Torture      ("CAT"),   and,        alternatively,

voluntary departure.

      In support of his petition, Thapaliya presented evidence to

the IJ regarding an incident that occurred in Nepal on April 15,

2003.   According to his testimony, a number of armed Maoist-rebels

came to his family's home that night looking for his father, who

was an active member of an anti-Maoist political group.                         Since

their target was not home, the armed rebels set their sights on

Thapaliya, who also was active in the anti-Maoist movement as a


                                        -2-
student-member. Thapaliya testified that the men beat him severely

and pointed a gun at him.           When Thapaliya's brother tried to

intervene, the Maoists beat him as well.                   Thapaliya suffered

injuries to his head and chin, as well as bruising all over his

body.

        A little more than a year later, Thapaliya followed his

father's advice and left Nepal.            The rest of his family stayed

behind.    From the April 2003 incident to the time that he left for

this country in August 2004, Thapaliya suffered no threats or

further harm.       According to Thapaliya, the Maoists later became

part of the Nepalese government in 2006 and gained control of the

government in 2008.      Still, no harm has come to his family members,

who have remained in Nepal.

       Although crediting Thapaliya's account, the IJ denied the

application for asylum.        The IJ concluded that Thapaliya failed to

establish that he was a victim of past persecution because the

April     2003   event   was   isolated    and   the       government     neither

participated nor acquiesced in it.           The IJ further decided that

Thapaliya had failed to demonstrate a well-founded fear of future

persecution because (1) he remained in Nepal for over a year after

the incident before coming to the United States without suffering

any additional harm, and (2) his family (including his father) had

not suffered any harm since the 2003 incident.               The IJ concluded

that    Thapaliya   also   failed   to    establish    a    claim   for   either


                                     -3-
withholding of removal or protection under CAT, and granted his

alternative request for voluntary departure.

     Thapaliya appealed to the Board, which affirmed the IJ's

decision, largely reiterating the IJ's reasoning. The Board agreed

that Thapaliya's claims did not establish past persecution and that

he did not have a well-founded fear of future persecution.             Like

the IJ, the Board emphasized that Thapaliya remained unharmed in

Nepal for more than a year after the April 2003 encounter, and that

his family has resided in Nepal without incident since 2003 despite

the Maoist government takeover in 2008.            Accordingly, the Board

affirmed the   IJ's   decision   to   deny   his    requests   for   asylum,

withholding of removal, and protection under CAT.                Thapaliya

petitioned for review, challenging only the denial of asylum.1




     1
      Thapaliya's brief is silent on CAT and, although it refers to
withholding of removal, it offers no advocacy on that issue.
Therefore, we consider these claims abandoned. See Anacassus v.
Holder, 602 F.3d 14, 19 n.5 (1st Cir. 2010). In any event, an
argument for withholding of removal would necessarily fail as well
given our analysis on his asylum claim. See Stanciu v. Holder, 659
F.3d 203, 208 (1st Cir. 2011).
     The IJ additionally concluded that Thapaliya's asylum
application was untimely, rejecting his claim that material
circumstances excused the delay. The Board expressly declined to
address Thapaliya's challenge to this aspect of the IJ's decision,
choosing instead to square up on the merits alone.      Before us,
Thapaliya continues to argue that the IJ erred in finding that his
asylum application was untimely, which the government both
dismisses as moot and further questions our jurisdiction to review
the IJ's time bar conclusion. We, like the Board, center on the
merits.

                                  -4-
                                 II. Discussion

       Where, as here, the Board "affirmed the IJ's ruling while

discuss[ing] some of the bases for the IJ's opinion, we review both

the IJ's and [the Board's] opinions."                   Costa v. Holder, 733 F.3d

13, 16 (1st Cir. 2013) (first alteration in original) (internal

quotation marks omitted).             The agency's factual conclusions are

reviewed under the deferential "substantial evidence" standard,

and,   thus,    we    uphold    the    decision      if    "it     is   supported     by

reasonable, substantial, and probative evidence on the record

considered as a whole."         Sunarto Ang v. Holder, 723 F.3d 6, 10 (1st

Cir.   2013)    (internal      quotation     marks       omitted).        Reversal    is

warranted only "if a reasonable adjudicator would be compelled to

conclude to the contrary." Id. (internal quotation marks omitted).

       "As a prerequisite to asylum eligibility, an alien bears the

burden of establishing that he is a refugee," which is defined as

a   "person    who   cannot    or     will   not   return     to    his    country    of

nationality or avail himself of that country's protection 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."            Aguilar-Solis v. I.N.S., 168 F.3d

565, 569 (1st Cir. 1999) (internal quotation marks omitted). Thus,

an alien must prove past persecution, which gives rise to an

inference      of    future    persecution,        or     otherwise       establish   a




                                         -5-
well-founded fear of future persecution based on a protected

ground.   Sunarto Ang, 723 F.3d at 10.         This frames our discussion.

     A. Past Persecution

     Thapaliya takes aim at the Board's decision that the single

April 2003 event does not amount to past persecution. Establishing

past persecution, however, can be a "daunting task" for which

petitioners "bear a heavy burden."        Butt v. Keisler, 506 F.3d 86,

90 (1st Cir. 2007) (alteration omitted) (internal quotation marks

omitted).      "The baseline rule is that past persecution requires

more than mere discomfiture, unpleasantness, harassment, or unfair

treatment."     Id. at 90 (internal quotation marks omitted).           "The

severity, duration, and frequency of physical abuse are factors

relevant to this determination, as is whether harm is systematic

rather than reflective of a series of isolated incidents." Barsoum

v. Holder, 617 F.3d 73, 79 (1st Cir. 2010) (citation and internal

quotation marks omitted). Accordingly, isolated beatings have been

commonly rejected as grounds for persecution.             See Anacassus v.

Holder, 602 F.3d 14, 19-20 (1st Cir. 2010)("'isolated beatings,

even when rather severe, do not establish systematic mistreatment

needed to show persecution'"); see also Hong Chen v. Holder, No.

13-1294, 2014 WL 983309, *4 (1st Cir. Mar. 14, 2014); Sunarto Ang,

723 F.3d at 11; Decky v. Holder, 587 F.3d 104, 111 (1st Cir. 2009);

Bocova    v.   Gonzales,   412   F.3d   257,    263-64   (1st   Cir.   2005),




                                    -6-
superceded in part on other grounds as recognized by Ivanov v.

Holder, 736 F.3d 5, 20 (1st Cir. 2013).

      Here, there is undisputed evidence that on one occasion a

group of Maoists beat Thapaliya fairly severely, apparently due to

his   political   affiliations.   More    than   a   year   passed   before

Thapaliya left Nepal, and during that time neither he nor his

family suffered such harm again.         Thus, the singular April 2003

incident of violence seems to readily align with our precedent on

isolated beatings.2   Thapaliya, however, contends that the Maoists

threatened his life during the violent episode and argues that a

death threat in the midst of a single act of violence is enough to

establish past persecution.

      In the abstract, Thapaliya's position seems sound, as we have

held that credible, specific threats may rise to the level of

persecution in some circumstances if they are severe enough, and

"threats of murder fit squarely within this rubric."             Javed v.

Holder, 715 F.3d 391, 395-96 (1st Cir. 2013) (alteration omitted)

(internal quotation marks omitted); see Amouri v. Holder, 572 F.3d

29, 33 (1st Cir. 2009); Hincapie v. Gonzales, 494 F.3d 213, 217


      2
      See, e.g., Sunarto Ang, 723 F.3d at 11 (two incidents over
the course of twenty-five years, one stabbing and one beating, are
too isolated to constitute persecution); Decky, 587 F.3d at 111 (a
single severe beating during riots, without other systematic
mistreatment of comparable severity, support finding that the
beating was an isolated event, not persecution); Bocova, 412 F.3d
at 263 (two beatings by the police separated by more than two
years, one "relatively minor" and another "more severe," does not
compel a finding of persecution).

                                  -7-
(1st Cir. 2007); Un v. Gonzales, 415 F.3d 205, 210 (1st Cir. 2005).

Considering whether the death threats are imminent is part of the

calculus, however. See Javed, 715 F.3d at 396; Ravix v. Mukasey,

552 F.3d 42, 46 (1st Cir. 2009) (per curiam).                 And, here, the IJ,

although crediting Thapaliya's account, noted that his description

of the event "was somewhat vague."           In fact, the IJ did not render

findings suggesting that the attack by the Maoists involved a death

threat, and the role of the firearm during the beating is not

otherwise pellucid on the record.            Instead, it appears that the

agency   cast   the   April    2003     event      as    an   isolated    beating

insufficient to establish past persecution, which as we have said

is in keeping with our precedent.

      Even assuming--as the petitioner suggests--that the agency saw

the use of the gun by the Maoists as an implied death threat, this

single threat during the single beating still is not enough to

compel a conclusion of past persecution on this record.                   Compare

Javed, 715 F.3d at 396 (specific, credible threats compelled a

finding of past persecution where "the Batore group" expressly

threatened to kill the petitioner on many occasions, the threats

were not isolated events and some were accompanied with violence,

his   office    was   demolished      "by    the     Batore-controlled      local

government,"    the   same    group    had    shot      people   with    whom   the

petitioner was associated, and the threats continued even after he

fled Pakistan), with Vilela v. Holder, 620 F.3d 25, 29 (1st Cir.


                                      -8-
2010) (sufficient evidence supported agency's conclusion that the

repeated, clear death threats over the phone, while the "'most

troubling' aspect" of the case, amounted to harassment rather than

persecution); cf. Amouri, 572 F.3d at 33 (petitioner's experience

involved   clear   "threats   of     murder"    which    "easily    qualify   as

sufficiently severe harm"); Hincapie, 494 F.3d at 216-17 (series of

threats of murder may amount to past persecution); Un, 415 F.3d at

209-10 (an "explicit death threat" combined with "perhaps one or

more implicit ones" may fall within the meaning of persecution).

     Because substantial evidence supports the agency's conclusion

that Thapaliya did not establish past persecution, he is "not

entitled to the rebuttable presumption that his fear of future

persecution is well-founded."        Anacassus, 602 F.3d at 21 (citing 8

C.F.R. § 208.13(b)(1)(I)).

     B. Well-Founded Fear of Future Persecution

     Without the rebuttable presumption, Thapaliya is left to

otherwise "demonstrate not only that [he] harbors a genuine fear of

future   persecution   but    also    that     [his]    fear   is   objectively

reasonable."   Id. (alterations in original) (internal quotation

marks omitted).     On this record, the evidence does not compel a

conclusion that any genuine subjective fear of future persecution

that Thapaliya harbors is an objectively reasonable one.

     Thapaliya did not leave Nepal until August 2004, over a year

after the April 2003 event.        He suffered no additional injuries or


                                      -9-
threats during that time. His family members, including his father

as the initial target of the Maoists, have remained in Nepal and

have not suffered any harm or threats since April 2003, though the

Maoists apparently took control of the Nepalese government in 2008.

"We have often echoed that the fact that close relatives continue

to live peacefully in the alien's homeland undercuts the alien's

claim that persecution awaits his return."             Lobo v. Holder, 684

F.3d   11,   19   (1st   Cir.   2012)   (alterations   omitted)   (internal

quotation marks omitted); see Decky, 587 F.3d at 112-13; Ravix, 552

F.3d at 46; Santosa v. Mukasey, 528 F.3d 88, 93 (1st Cir. 2008);

Sipayung v. Gonzales, 491 F.3d 18, 20-21 (1st Cir. 2007). As such,

substantial evidence supports the Board's decision regarding the

lack of a well-founded fear of future persecution, and so we affirm

the denial of asylum.

                                III. Conclusion

       Thapaliya's petition for review is denied.




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