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

                            FOR THE TENTH CIRCUIT                      December 6, 2013

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
DORJE SHERPA,

             Petitioner,

v.                                                          No. 13-9552
                                                        (Petition for Review)
ERIC H. HOLDER, JR., United States
Attorney General,

             Respondent.


                            ORDER AND JUDGMENT*


Before GORSUCH, ANDERSON, and HOLMES, Circuit Judges.


      Petitioner Dorje Sherpa petitions for review of the decision of the Board of

Immigration Appeals (BIA) affirming the decision of an immigration judge (IJ)

denying his application for asylum, restriction on removal, and protection under the

United Nations Convention Against Torture (CAT). We hold that petitioner has


*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
failed to carry the heavy burden placed on those challenging adverse asylum

determinations, and we therefore deny the petition for review.

                                     I. Background

        Petitioner is a native and citizen of Nepal. He was admitted to the United

States in November 2007 with a temporary worker visa and was authorized to stay

for six months. He overstayed his visa and filed his application for asylum or other

relief from removal. Removal proceedings were subsequently initiated against him.

He conceded removability, but testified at the hearing that he had been persecuted in

the past and would be subject to future persecution in Nepal because of his political

opinion, imputed political opinion, and membership in a particular social group, the

Sherpa tribe.

                                A. Factual Background

        Petitioner was born in 1987 in a village, but his parents made a lot of money

selling products from their farm, and they bought a second home in Kathmandu so

that petitioner and his brother could attend better schools. Petitioner wrote on his

asylum application that he lived in Kathmandu from January 1995 until November

2007 and that he attended Hiralal college in Kathmandu from July 2005 until March

2007.

        Petitioner’s father became a member of the Nepali Congress Party in 1992 and

helped candidates get elected. The Maoists seized the family’s village home in 1998,

a few months after petitioner’s father refused to give them money. Petitioner joined


                                          -2-
the affiliated youth organization, the Nepali Student Union, in May 2002 and

received training in the Nepali Congress Party’s ideology to oppose the Maoists

because they were terrorists. He testified that in 2002, he informed the army of

Maoist activities in the villages and, as a result, the army took action against the

Maoists, killing some of them. The Maoists later found out his name and started

looking for him. He did not know how the Maoists learned that he had informed on

them, but they went to his family’s home in Kathmandu in 2005. Petitioner was not

home at the time, but his parents were, and the Maoists threatened them and told

them that they would kill him. Petitioner’s father called him and warned him not to

come home, and the Maoists later made additional threats to his parents.

      Petitioner stayed in Nepal for two more years after his parents received the

threat on his life. When he was asked why he remained in Nepal, he explained that

he was dependent on his parents and had no opportunity to leave Nepal until a friend

of his father’s helped him get a job in the United States. He said that he stayed in

hiding in Nepal with his family and friends, moving from place to place. He

explained that he did not write down his friends’ addresses on his asylum application

because there were too many of them and there was no room on the form.

      When petitioner was asked why the Maoists could not have identified him in

Nepal, considering that he worked for his father’s small business making deliveries

to customers on a motorcycle out in public, he explained that he wore a helmet

partially covering his face and did not work on a regular basis. When asked why the


                                          -3-
Maoists could not have found him at his college, he said that he stopped going to

college in March 2006, when he learned that the Young Communist League (YCL,

the Maoists’ youth organization) had found out he was attending school, but he wrote

on his asylum application that he had attended college until March 2007 because he

was still admitted.

      He testified that some Maoists threatened him at Hiralal campus once, but he

managed to run away. He also testified that in September 2006, he was beaten and

injured by ten-to-twelve YCL members in a public youth campus when he went there

for some training. The Maoists came there to break up the meeting and said that he

should be killed because he had informed on them. Petitioner was beaten

unconscious and spent two days in the hospital, but he lost the documentation during

the time when he moved from place to place. He was treated with a bandage, and he

showed the IJ a three-inch scar on the front of his right shin.

      Petitioner’s counsel identified the asserted particular social group of which

petitioner was a member as “Sherpa,” and explained that the Sherpas were targeted

by Maoists because they are tracking guides and were known to have money.

Petitioner testified that the Sherpas were one of several tribes with Mongolian

features, so they could not be identified as Sherpas merely by appearance. He said

that the Maoists target the Sherpas for donations because they are in business. But he

admitted that some Sherpas are Maoists, and that the Maoists solicit everyone either

for donations or to recruit their children as workers.


                                          -4-
                           B. The Administrative Decisions

      At the conclusion of the July 15, 2011, hearing, the IJ denied petitioner any

relief from removal based on his political opinion or membership in a particular

social group. Petitioner appealed to the BIA, which agreed with the IJ’s conclusions

with respect to the issues raised and dismissed the appeal. The BIA agreed that the

incidents about which petitioner testified, taken in the aggregate, failed to establish

that he was persecuted in the past, and he was therefore not entitled to a presumption

of a well-founded fear of future persecution. The BIA further agreed that petitioner

failed to show that his asserted fear of future persecution was objectively reasonable

and based on credible evidence that he would be singled out for persecution. The

BIA also agreed that petitioner’s documentary evidence was insufficiently

authenticated. In addition, the BIA agreed that petitioner failed to establish a nexus

between his alleged fear of persecution and his actual or imputed political opinion,

rather than his actions as an informant against the Maoists. The BIA concluded that

because petitioner failed to meet the standard for asylum, he necessarily failed to

meet the higher standard for restriction on removal. Petitioner filed this petition for

review.

                                     II. Discussion

      “In our review of the agency’s decision, we decide purely legal questions

de novo.” Ritonga v. Holder, 633 F.3d 971, 974 (10th Cir. 2011). “Agency findings

of fact are reviewed under the substantial evidence standard.” Id. Thus, “the


                                          -5-
administrative 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). Under

this standard, “[o]ur duty is to guarantee that factual determinations are supported by

reasonable, substantial and probative evidence considering the record as a whole.”

Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006) (internal quotation

marks omitted). While we review the BIA’s decision, not the IJ’s, we “may consult

the IJ’s opinion to the extent that the BIA relied upon or incorporated it.” Sarr v.

Gonzales, 474 F.3d 783, 790 (10th Cir. 2007). “Finally, our review is confined to the

reasoning given by the [agency], and we will not independently search the record for

alternative bases to affirm.” Elzour v. Ashcroft, 378 F.3d 1143, 1150 (10th Cir.

2004).

         Because petitioner applied for asylum following the enactment of the REAL

ID Act in 2005, his burden of proof is set forth in 8 U.S.C. § 1158(b)(1)(B)(i). To

qualify for asylum, he was required to prove that he is a refugee, which requires

proof that his “‘race, religion, nationality, membership in a particular social group, or

political opinion was or will be at least one central reason for persecuting [him].’”

Dallakoti v. Holder, 619 F.3d 1264, 1268 (10th Cir. 2010) (quoting

§ 1158(b)(1)(B)(i)).

         Petitioner may establish refugee status in three ways: (1) by showing a

well-founded fear of future persecution; (2) by showing past persecution, which

creates a rebuttable presumption of a well-founded fear of future persecution; or


                                           -6-
(3) by showing “past persecution so severe as to demonstrate compelling reasons for

being unwilling or unable to return,” even without any danger of future persecution.

Krastev v. INS, 292 F.3d 1268, 1270-71 (10th Cir. 2002) (internal quotation marks

omitted). But “the BIA [has] interpreted ‘one central reason’ to mean ‘the protected

ground cannot play a minor role in the alien’s past mistreatment or fears of future

mistreatment. That is, it cannot be incidental, tangential, superficial, or subordinate

to another reason for harm.’” Dallakoti, 619 F.3d at 1268 (quoting In re J-B-N- &

S-M-, 24 I. & N. Dec. 208, 214 (BIA 2007)). As a result, even if petitioner has

shown that his actions were politically motivated, “he would need to make the

additional showing that the [Maoists] would ‘persecute him because of that political

opinion, rather than’” because of some other, unprotected reason. Rivera-Barrientos

v. Holder, 666 F.3d 641, 647 (10th Cir. 2012) (quoting INS v. Elias-Zacarias,

502 U.S. 478, 483 (1992)).

      To qualify for restriction of removal under the Immigration and Nationality

Act (INA), 8 U.S.C. § 1231(b)(3), an applicant must “establish a clear probability of

persecution on account of one of the statutorily protected grounds.” Uanreroro,

443 F.3d at 1202 (internal quotation marks omitted). “Applicants who cannot

establish a well-founded fear under asylum standards will necessarily fail to meet the

higher burden of proof required for [restriction on] removal under the INA. . . .” Id.

      Petitioner argues that the BIA and IJ erred in concluding that he failed to show

past persecution, a well-founded fear of future persecution, and a nexus between the


                                          -7-
alleged persecution and his political opinion, imputed political opinion, or

membership in the Sherpa tribe. He also argues that the BIA and IJ erred in

concluding that he had not established his entitlement to relief from removal under

the INA or the CAT. We find no error.

      We note at the outset that petitioner did not raise any arguments to the BIA

concerning his membership in the Sherpa tribe or related to his CAT claim, nor did

the BIA sua sponte address those claims. As a result, we lack jurisdiction to consider

his unexhausted arguments regarding those issues. See Sidabutar v. Gonzales,

503 F.3d 1116, 1118-20 (10th Cir. 2007). Moreover, we need not address his

arguments that he showed that he suffered past persecution or had a reasonable fear

of future persecution. Even if he made the required showing on those points, his

claims for asylum and restriction on removal also failed because he did not show that

the Maoists targeted him in the past or would target him in the future because of his

political beliefs or imputed political beliefs. Unless the record “establish[es] that any

reasonable adjudicator would be compelled to conclude that one of the central

reasons the Maoists targeted [petitioner] was because of” a protected ground, he is

not entitled to relief on appeal. Dallakoti, 619 F.3d at 1268 (emphasis added).

      Petitioner’s vague evidence fails to satisfy the high standard that applies to his

appeal. When he testified about being beaten by a group of Maoists, he reported that

they said he should be killed because he had informed on them; he did not suggest

that they were motivated by his political beliefs. See Admin. R. at 219-20. There is


                                          -8-
no other reference to the Maoists’ alleged motivation in the record, and we are not

compelled to conclude that he established the required nexus between the alleged

persecution and a protected ground. See Adhiyappa v. INS, 58 F.3d 261, 266-68

(6th Cir. 1995) (distinguishing “whether the persecution an alien fears is on account

of his political opinion or, on the other hand, on account of his actions or inactions,”

as discussed in Elias-Zacarias, 502 U.S. at 481, and concluding based on the record

before the court that “it was [the petitioner’s] status as an informant, not his political

opinion, that spurred [the terrorists’] hatred”); cf. Karki v. Holder, 715 F.3d 792, 803

(10th Cir. 2013) (noting that “[u]nder Elias-Zacarias, an individual’s refusal to join

an organization is insufficient in itself to demonstrate that the organization’s

persecution was based on the individual’s actual or imputed political opinion, rather

than retaliation for the individual’s resistance”).

       The petition for review is denied.

                                                  Entered for the Court


                                                  Jerome A. Holmes
                                                  Circuit Judge




                                            -9-
