Sherpa v. Holder

• Decision Date: 11 December 2013
• Docket Number: Agency No. A200-706-016,No. 12-71047,12-71047
• Parties: PHURBA SHERPA, Petitioner, v. ERIC H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

PHURBA SHERPA, Petitioner, v. ERIC H. HOLDER, Jr., Attorney General, Respondent.

No. 12-71047

Agency No. A200-706-016

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Filed: December 11, 2013

NOT FOR PUBLICATION

MEMORANDUM^*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted December 4, 2013^**

Seattle, Washington

Before: O'CONNOR, Associate Justice,^*** and TALLMAN and BEA, Circuit Judges.

Phurba Sherpa, a citizen and native of Nepal, petitions for review of a final order of removal from the Board of Immigration Appeals ("BIA"). The BIAreversed an Immigration Judge's ("IJ") grant of withholding of removal under the Convention Against Torture ("CAT"). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition for review.

First, Sherpa challenges the BIA's conclusion that he failed to establish that it was more likely than not that he would be tortured if removed to Nepal. See 8 C.F.R. § 1208.16(c)(2) (requiring a petitioner to prove that it is "more likely than not that he or she would be tortured" in the country of removal in order to obtain CAT relief). In determining the probability that a petitioner will be tortured, all relevant evidence must be considered. Ridore v. Holder, 696 F.3d 907, 912 (9th Cir. 2012) (citing 8 C.F.R. § 1208.16(c)(3)). But, as here, when the petitioner does not challenge the prior adverse credibility determination, the CAT claim must be considered without the discredited testimony, and the remaining evidence alone must show a likelihood of torture. Shrestha v. Holder, 590 F.3d 1034, 1048-49 (9th Cir. 2010). Evidence relevant to assessing the probability of future torture includes credible evidence of past torture, consideration as to whether the petitioner can relocate to a different part of the country for safety, and evidence of gross violations of human rights in the country of removal. 8 C.F.R. § 1208.16(c)(3).

Sherpa argues that the BIA erred when it concluded that he was not previously subjected to mental torture by the Maoists fighting the Nepalese government. But, after setting aside Sherpa's discredited testimony, the record does not compel a finding that Sherpa was subjected to "prolonged" mental harm due to the threat of imminent death at the hands of Maoist forces. See 8 C.F.R. § 208.18(a)(4) (defining "mental torture" as required for CAT relief). The letters from Sherpa's relatives and fellow villagers only vaguely describe Sherpa's confrontations with the Maoists, where Maoists allegedly threatened Sherpa's life and held Sherpa captive but released him after he carried their supplies. Instead, the letters mechanistically conclude without sufficient factual basis that Sherpa was "physically and mentally" tortured. Substantial evidence therefore supports the BIA's determination that Sherpa did not suffer past mental torture. See Garcia-Milian v. Holder, 730 F.3d 996, 1000-01 (9th Cir. 2013) (noting that we must uphold a BIA decision unless the evidence in the record "compels" a contrary result).

Sherpa next argues that regardless of whether he demonstrated past torture, he proved that he was likely to be subjected to future torture. To support this argument, he points to country reports, a letter he received from the Maoists while living in Kathmandu, and the medical documents and pictures depicting injuriessustained by his brother and son at the hands of Maoists. Although the country reports indicate that torture does occur in Nepal, the reports alone do not establish a sufficiently particularized likelihood that Sherpa would suffer torture. See Dhital v. Mukasey, 532 F.3d 1044, 1051-52 (9th Cir. 2008) (holding that reports describing the ongoing struggle between the Nepalese government and the Maoists do not show petitioner "would face any particular threat of torture beyond that of which all citizens of Nepal are at risk"). And the other evidence Sherpa relies on does not demonstrate a probability that he will be tortured if returned to Nepal.

Letters, photographs, and medical reports from Sherpa's wife and brother demonstrate that certain Maoists, namely those from Sherpa's village, are capable of violence and may be looking for Sherpa. But these letters establish only a possibility—as opposed to a probability—that Sherpa would be tortured if returned to Kathmandu, Nepal. Sherpa's brother was attacked only when he returned to his home village, and Sherpa's son was harassed by Youth Communist League Maoists from the village while those individuals were in Kathmandu.

Moreover, the letter from the Maoists that Sherpa received while living with his uncle in Kathmandu undercuts the likelihood that Sherpa would be tortured if returned there. That letter, which asks Sherpa to "be present in the [party's] office [within one week] . . . [to]...