                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        JUN 15 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

AMRIT BASTOLA,                                  No.    18-70094

                Petitioner,                     Agency No. A209-876-538

 v.
                                                MEMORANDUM*
WILLIAM P. BARR, Attorney General,

                Respondent.

                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                               Submitted June 11, 2020**
                               San Francisco, California

Before: MILLER and HUNSAKER, Circuit Judges, and RAYES,*** District Judge.

      Amrit Bastola, a native and citizen of Nepal, petitions for review of the

Board of Immigration Appeals’ order dismissing his appeal from an immigration

judge’s decision denying his application for asylum, withholding of removal, and


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable Douglas L. Rayes, United States District Judge for the
District of Arizona, sitting by designation.
relief under the Convention Against Torture. We have jurisdiction under 8 U.S.C.

§ 1252(a)(1). We deny the petition for review.

      1.     We review the agency’s findings related to past persecution for

substantial evidence. Guo v. Ashcroft, 361 F.3d 1194, 1203 (9th Cir. 2004). The

agency’s “findings of fact are conclusive unless any reasonable adjudicator would

be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see INS v.

Elias-Zacarias, 502 U.S. 478, 481 & n.1 (1992). Even when “a reasonable

factfinder could have found [an] incident sufficient to establish past persecution,”

that is not enough for us to grant relief because “[w]e are not permitted to

substitute our view of the matter for that of the Board.” Prasad v. INS, 47 F.3d

336, 340 (9th Cir. 1995).

      Here, substantial evidence supports the agency’s finding that the harm

Bastola suffered did not rise to the level of persecution. Starting in late 2013,

Bastola was confronted by persons affiliated with the Maoist party in Nepal.

Twice, he was chased by Maoists but escaped. He was also slapped at a local tea

shop. In early 2015, a group of Maoists beat Bastola at his home, resulting in

injuries for which he sought medical treatment. The Board determined that the

“physical assaults were short in duration and did not cause [Bastola] severe or

prolonged injuries.” On this record, we are not compelled to disagree. See Hoxha v.

Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003).


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      Bastola was also subject to threats against his life by Maoists, along with

threats of serious harm to his family. Our cases have recognized that “death threats

alone” may constitute persecution, see Navas v. INS, 217 F.3d 646, 658 (9th Cir.

2000), but “we typically rely on all of the surrounding events, including the death

threat, in deciding whether persecution exists.” Nahrvani v. Gonzales, 399 F.3d

1148, 1153 (9th Cir. 2005). Here, the Board concluded that the physical attacks

Bastola suffered, even viewed in conjunction with the threats, did not rise to the

level of persecution. In doing so, the Board considered our decision in Mashiri v.

Ashcroft, 383 F.3d 1112 (9th Cir. 2004), and determined that the level of harm

Bastola experienced was significantly less severe than that in Mashiri. The record

does not compel us to disturb the agency’s factual finding.

      We have also treated threats as “indicative of a danger of future persecution,

rather than as past persecution itself.” Lim v. INS, 224 F.3d 929, 936 (9th Cir.

2000). In concluding that Bastola did not have an objectively reasonable fear of

future persecution, the Board acknowledged that Bastola’s cousins had been

attacked for hiding him in the past, but it relied on the lack of record evidence

showing harm to Bastola’s family after he left Nepal, despite the Maoists’ belief

that they continue to hide him in Nepal. That determination is consistent with our

precedent, which establishes that violence against an applicant’s family members is

relevant to a well-founded fear of persecution. See Korablina v. INS, 158 F.3d


                                          3
1038, 1045 (9th Cir. 1998). While it is possible that the agency could have come to

a contrary conclusion, we cannot say that the record compels any reasonable

factfinder to do so. See Elias-Zacarias, 502 U.S. at 481 n.1.

      Because Bastola has not established eligibility for asylum, he also cannot

establish eligibility for withholding of removal. See Gonzalez-Hernandez v.

Ashcroft, 336 F.3d 995, 1001 n.5 (9th Cir. 2003); Ghaly v. INS, 58 F.3d 1425, 1429

(9th Cir. 1995).

      2.      It is well established that torture is “more severe than persecution.”

Guo v. Sessions, 897 F.3d 1208, 1217 (9th Cir. 2018) (quoting Nuru v. Gonzalez,

404 F.3d 1207, 1224 (9th Cir. 2005)). Substantial evidence supports the agency’s

denial of Bastola’s claim under the Convention Against Torture because he did not

show that it is more likely than not he would be tortured by or with the consent or

acquiescence of the government if returned to Nepal. See 8 C.F.R.

§§ 1208.16(c)(2), 1208.18(a)(1)–(2); Aden v. Holder, 589 F.3d 1040, 1047 (9th

Cir. 2009).

      3.      We review for abuse of discretion the denial of a continuance and

review de novo claims of due process violations in immigration proceedings. Cruz

Rendon v. Holder, 603 F.3d 1104, 1109 (9th Cir. 2010). Here, an immigration

judge had already granted a continuance, and in any event Bastola was allowed to

testify about the import of the documentary evidence he would have presented.


                                           4
Given that the immigration judge found Bastola credible, there was no abuse of

discretion in her denial of Bastola’s motion for another continuance. See Sandoval-

Luna v. Mukasey, 526 F.3d 1243, 1247 (9th Cir. 2008) (per curiam).

      Because there was no error in the immigration judge’s decision to deny a

continuance, it follows that there was no violation of due process. See Lata v. INS,

204 F.3d 1241, 1246 (9th Cir. 2000). We reject Bastola’s contention that the

agency failed to consider all of his evidence.

      PETITION DENIED.




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