                                                                                  FILED
                                                                      United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                           Tenth Circuit

                            FOR THE TENTH CIRCUIT                          January 26, 2016
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
RAHUL GURU,

      Petitioner,

v.                                                          No. 15-9560
                                                        (Petition for Review)
LORETTA E. LYNCH, United States
Attorney General,

      Respondent.
                        _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before KELLY, LUCERO, and McHUGH, Circuit Judges.
                  _________________________________


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

      Rahul Guru is a citizen of India who claims he will be persecuted as a religious

follower of Maharaj Ashutosh if he returns to India. The immigration judge (IJ)

denied his asylum application, his request for withholding of removal, and his request

for relief under the Convention Against Torture. The Board of Immigration Appeals

      *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
(BIA) affirmed the IJ’s ruling, thereby dismissing Mr. Guru’s appeal. Mr. Guru has

now petitioned this court for review of the BIA’s decision. Exercising jurisdiction

under 8 U.S.C. § 1252(a), we deny his petition.

                                  I.     BACKGROUND

      Mr. Guru unlawfully entered the United States on March 12, 2014, at a border

checkpoint in Nogales, Arizona. On March 13, 2014, Mr. Guru was served with a

Notice to Appear, which charged him as removable under § 212(a)(7)(A)(i)(I) of the

Immigration and Nationality Act (INA), 8 U.S.C. § 1182(a)(7)(A)(i)(I). Mr. Guru

admitted the allegations in the Notice to Appear and conceded removability.

      On June 3, 2014, Mr. Guru applied for asylum, withholding of removal, and

relief under the Convention Against Torture. In this original application, Mr. Guru

claimed to have been harassed and threatened due to his political affiliation with the

Shiv Sena party. After retaining new counsel, Mr. Guru filed a supplemental asylum

application on December 16, 2014, in which he alleged past harm and fear of future

mistreatment because he is a follower of Maharaj Ashutosh, the spiritual leader of the

group Divya Jyoti Jagrati Sansthan (DJJS). More specifically, Mr. Guru alleged he

had been beaten and threatened by the controlling DJJS leaders in the past and feared

future mistreatment, because he had threatened to expose the leaders’ corruption and

had accused them of murdering Ashutosh.

      In a hearing held on February 24, 2015, before the IJ, Mr. Guru testified

through an interpreter. The IJ found Mr. Guru credible. Mr. Guru testified that he

follows Maharaj Ashutosh, a spiritual leader who taught, preached, and worked for

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the benefit of the poor, at a place of worship known as a dera in Nurmahal, India. Mr.

Guru further explained he is Hindu, but Ashutosh was not, and DJJS is a

nondenominational group that accepts people of different religions.

      In November 2013, Mr. Guru heard a rumor that Ashutosh had been murdered

but the DJJS leaders who managed the dera were hiding Ashutosh’s body. Mr. Guru

testified the DJJS leaders had asserted Ashutosh was “in meditation” so they could

claim he was still alive and take control of his extensive estate. Because Mr. Guru

“accept[s] Ashutosh Maharaj as [his] god, and [he] wanted to find out if something

bad was happening to [Ashutosh],” Mr. Guru went to the dera to confront the DJJS

leaders. According to Mr. Guru, the DJJS leaders responded by threatening to kill

him and telling him to stop spreading rumors that Ashutosh was sick or dead.

      Mr. Guru then initiated his own investigation by using a friend to gain access

to the local land ownership records, which showed the DJJS leaders had “properties

worth hundreds of thousands” and “political connections all the way to the top.”

When Mr. Guru returned to the dera and demanded to see Ashutosh, the DJJS leaders

refused. Mr. Guru responded by telling the leaders he had “proof against them”

which he would publish in the newspaper. When Mr. Guru showed the DJJS leaders

the paperwork, they shouted and began chasing him. Mr. Guru ran away and hid in a

field for five to six hours and then returned home.

      On December 20, 2013, about ten men arrived at Mr. Guru’s home, two of

whom he recognized from the previous encounter at the dera. Mr. Guru testified the

men entered his home and “started punching and kicking” him for about “two, two

                                           3
and a half minutes.” When the men demanded the “proof” Mr. Guru had against

them, Mr. Guru surrendered the documents. Mr. Guru’s neighbors heard his screams

and began to gather. The men then threatened to kill Mr. Guru if he did not stop

following Ashutosh and left Mr. Guru’s house. Mr. Guru testified he did not report

the incident to the police because his father had told him the DJJS leaders were

linked politically to the police.

       As a result of the attack, Mr. Guru suffered internal injuries, along with

injuries to his head, feet, hands and legs. Mr. Guru’s neighbors took him to the

hospital where he stayed overnight. After returning from the hospital, Mr. Guru

stayed at home for nine or ten days and then spent about two months “in hiding” in

Delhi before leaving India.

       In addition to his testimony, Mr. Guru submitted several documents to the IJ,

including a birth certificate, passport, identity cards, school certificates, two letters

from his father stating Mr. Guru was sent abroad based on fear for his life, a medical

report confirming Mr. Guru was hospitalized after the attack at his home but released

the next day, and a letter from a Shiv Sena leader confirming his membership in the

party. Mr. Guru also submitted various articles discussing Ashutosh and his

followers. In relevant part, the articles explain that, after Mr. Guru left India in 2013,

litigation was filed to require the release and cremation of Ashutosh’s body, and an

Indian court ordered the cremation.

       After the hearing, the IJ issued an oral decision and order, accepting

Mr. Guru’s testimony as credible but nonetheless finding Mr. Guru failed to meet his

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burden to establish eligibility for asylum, withholding of removal, or protection

under the Convention Against Torture. The IJ first rejected Mr. Guru’s application to

the extent it was based on his membership in the Shiv Sena political party because

Mr. Guru indicated he was never harmed as a result of his political affiliation. The IJ

also concluded Mr. Guru failed to establish he was targeted as a result of his religion.

Rather, the IJ found Mr. Guru was harmed due to a private dispute caused by his

investigation of and confrontation with the DJJS leaders. The IJ therefore denied

Mr. Guru’s application.

      Mr. Guru timely appealed the IJ’s decision to the BIA. On July 29, 2015, in a

single-member decision, the BIA dismissed Mr. Guru’s appeal. Because Mr. Guru

“ha[d] not shown that the mistreatment he suffered in India constitutes persecution

under the [INA],” the BIA rejected Mr. Guru’s claims based on religion and

membership in a particular social group. The BIA also rejected Mr. Guru’s assertion

of a well-founded fear of persecution. And since Mr. Guru failed to satisfy the lower

standard required for asylum, the BIA also denied Mr. Guru’s request for withholding

of removal. Finally, the BIA declined to grant protection under the Convention

Against Torture because the evidence did not demonstrate Mr. Guru would more

likely than not be tortured if he returned to India.

      Mr. Guru timely petitioned this court for review of the BIA’s order.

                                     II.    DISCUSSION

      Where, as here, a single member of the BIA issues a brief order affirming the

IJ’s decision, we review the BIA’s order as the final agency determination and limit

                                            5
our review to the grounds specifically relied upon by the BIA. Uanreroro v.

Gonzales, 443 F.3d 1197, 1203–04 (10th Cir. 2006). “However, when seeking to

understand the grounds provided by the BIA, we are not precluded from consulting

the IJ’s more complete explanation of those same grounds.” Id. at 1204. We review

the BIA’s legal conclusions de novo and its factual determinations for substantial

evidence. Id.; Razkane v. Holder, 562 F.3d 1283, 1287 (10th Cir. 2009).

       Here, Mr. Guru challenges the BIA’s determination that he did not establish

persecution as required to support his asylum application. “In this circuit, the ultimate

determination whether an alien has demonstrated persecution is a question of fact, even if

the underlying factual circumstances are not in dispute and the only issue is whether

those circumstances qualify as persecution.” Hayrapetyan v. Mukasey, 534 F.3d 1330,

1335 (10th Cir. 2008) (internal quotation marks omitted). “The BIA’s determination [on

the issue of persecution] must be upheld if it is ‘supported by reasonable, substantial, and

probative evidence on the record considered as a whole.’” Id. (quoting INS v. Elias–

Zacarias, 502 U.S. 478, 481 (1992)). “Thus, we may reverse the BIA’s decision ‘only if

the evidence presented by [Mr. Guru] was such that a reasonable factfinder would have to

conclude that the requisite fear of persecution existed.’” Id. (quoting Elias–Zacarias, 502

U.S. at 481).

                               A. Application for Asylum

       Turning first to Mr. Guru’s application for asylum, Mr. Guru bore the burden

of proving eligibility for asylum. 8 U.S.C. § 1158(b)(1)(B)(i). To qualify for asylum,

Mr. Guru must first prove he is a refugee, which requires proof he is “unable or

                                             6
unwilling to return to” India “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. § 1101(a)(42)(A); Chaib v. Ashcroft, 397

F.3d 1273, 1277 (10th Cir. 2005).

       Mr. Guru based his asylum application on alleged persecution resulting from

his religion and membership in a particular social group. For both of these categories,

Mr. Guru was first required to prove he had suffered persecution. “Persecution is the

infliction of suffering or harm upon those who differ (in race, religion, or political

opinion) in a way regarded as offensive and must entail more than just restrictions or

threats to life and liberty.” Ritonga v. Holder, 633 F.3d 971, 975 (10th Cir. 2011)

(internal quotation marks omitted). There are three types of persecution that satisfy

the statutory requirement: (1) “a well-founded fear of future persecution,” (2) “past

persecution sufficient to give rise to a presumption of future persecution,” or

(3) “past persecution so severe that it supports an unwillingness on the applicant’s

part to return to that country.” Chaib, 397 F.3d at 1277. The BIA concluded Guru had

not experienced past persecution and did not have a well-founded fear of future

persecution. After reviewing the record in this case, we find substantial evidence

supporting the BIA’s conclusions.

1.     Past Persecution

       To be eligible for asylum based on past persecution, “an applicant must show

(1) an incident, or incidents, that rise to the level of persecution; (2) that is on

account of one of the statutorily-protected grounds; and (3) is committed by the

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government or forces the government is either unable or unwilling to control.” Niang

v. Gonzales, 422 F.3d 1187, 1194–95 (10th Cir. 2005).

      Here, Mr. Guru testified he was threatened twice after confronting a group of

DJJS leaders. Because he threatened to expose the leaders’ alleged corruption, Mr.

Guru was beaten on one occasion for “[m]aybe two, two and a half minutes.” And as

a result of the beating, Mr. Guru suffered injuries that required overnight

hospitalization. Even accepting Mr. Guru’s testimony as credible, the BIA concluded

Mr. Guru’s experience did not rise to the level of persecution.

      The BIA’s decision is consistent with similar determinations upheld by this

court despite evidence of circumstances similar to or more severe than those alleged

by Mr. Guru. See, e.g., Ritonga, 633 F.3d at 976 (affirming BIA’s finding of no

persecution where Christian was the target of taunts and threats on several occasions

and suffered head injuries when Muslims broke into her home); Sidabutar v.

Gonzales, 503 F.3d 1116, 1124 (10th Cir. 2007) (affirming BIA’s finding of no

persecution where Christian was repeatedly beaten and robbed at the hands of

Muslim classmates); Kapcia v. INS, 944 F.2d 702, 704–05, 708 (10th Cir. 1991)

(affirming BIA’s finding of no persecution where petitioner was detained twice for

two-day periods during which he was interrogated and beaten based on his political

affiliation, was assigned poor work tasks and denied bonuses, was conscripted into

the army where he experienced constant harassment, and was fired from his job). As

such, we conclude the BIA’s finding was supported by substantial evidence.



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2.    Well-Founded Fear of Future Persecution

      Having failed to prove past persecution, Mr. Guru could still qualify as a

refugee under the INA if he established a well-founded fear of future persecution,

which requires “both a genuine, subjective fear of persecution, and an objective basis

by credible, direct, and specific evidence in the record, of facts that would support a

reasonable fear of persecution.” Karki v. Holder, 715 F.3d 792, 801 (10th Cir. 2013).

      The BIA determined Mr. Guru failed to meet this standard for several reasons.

The BIA first noted that the relevant events supporting Mr. Guru’s asylum

application took place in 2013, and Mr. Guru left India shortly thereafter. Mr. Guru

submitted articles which confirm that, after his departure from the country, litigation

was commenced to allow the release and cremation of Ashutosh’s body, and that an

Indian court ordered the cremation. The BIA thus concluded that Mr. Guru failed to

establish that the Indian government is unable or unwilling to control the DJJS

leaders. In addition, the BIA noted that some of Mr. Guru’s family members, who are

also followers of Ashutosh, remain in Indian unharmed and that he has not provided

any evidence demonstrating the DJJS leaders are interested in harming him today.

      The BIA’s finding that Mr. Guru does not suffer from a well-founded fear of

persecution is supported by substantial evidence in the record.

                             B. Withholding of Removal

      Mr. Guru also argues the BIA erred in denying his request for withholding of

removal. Under the INA, the Attorney General may prohibit removal if she determines

“the alien’s life or freedom would be threatened” in the country to which he would be

                                           9
removed “because of the alien’s race, religion, nationality, membership in a particular

social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). “The burden of proof for

withholding of removal is higher than for asylum.” Rodas-Orellana v. Holder, 780 F.3d

982, 986 (10th Cir. 2015). Under this burden, the applicant must prove a “clear

probability of persecution on account of a protected ground.” Id. at 987 (internal

quotation marks omitted). “Failure to meet the burden of proof for an asylum claim

necessarily forecloses meeting the burden for a withholding claim.” Id. Having failed to

establish eligibility for asylum, Mr. Guru has also necessarily failed to satisfy his burden

of proof for withholding of removal. We therefore affirm the BIA’s denial of Mr. Guru’s

request for withholding of removal.

                              C. Convention Against Torture

       Mr. Guru has likewise failed to prove his eligibility for relief under the

Convention Against Torture. Under the Convention, Mr. Guru had the burden to

prove “it is more likely than not that he . . . would be tortured if removed to the

proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). The Convention defines

torture as

       any act by which severe pain or suffering, whether physical or mental, is
       intentionally inflicted on a person for such purposes as obtaining from
       him or her or a third person information or a confession, punishing him
       or her for an act he or she or a third person has committed or is
       suspected of having committed, or intimidating or coercing him or her
       or a third person, or for any reason based on discrimination of any kind,
       when such pain or suffering is 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.

Id. § 1208.18(a)(1) (emphasis added).

                                             10
       In this case, Mr. Guru has not identified a public official involved with his past

mistreatment. The DJJS followers who threatened and beat Mr. Guru were religious

leaders, not public officials. Although these men allegedly had political connections and

Mr. Guru’s father believed they had political ties with the police, Mr. Guru did not

present evidence showing any public official ratified or knew about the DJJS leaders’

actions. Thus, Mr. Guru failed to prove he had been or would in the future be mistreated

at the instigation of or with the consent or acquiescence of a public official. Accordingly,

we uphold the BIA’s denial of Mr. Guru’s request for protection under the Convention.

                                     III.   CONCLUSION

       For these reasons, we DENY Mr. Guru’s petition for review of the BIA order.

                                              Entered for the Court



                                              Carolyn B. McHugh
                                              Circuit Judge




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