FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PAN BAHADUR TAMANG, 

Petitioner, No. 08-73550

v. Agency No.  A098-840-654 ERIC H. HOLDER JR., Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted December 10, 2009*

Seattle, Washington

Filed March 16, 2010

Before: Ronald M. Gould and Richard C. Tallman,

Circuit Judges, and Roger T. Benitez,** District Judge.

Opinion by Judge Benitez

*The panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2). 

**The Honorable Roger T. Benitez, United States District Judge for the

Southern District of California, sitting by designation. 

4281
COUNSEL

Patrick Cantor, Buttar & Cantor LLP, Tukwila, Washington,

for petitioner Pan Bahadur Tamang.

Tony West, Acting Assistant Attorney General, Civil Division, Terri J. Scadron, Assistant Director, and Kathryn Deangelis, Trial Attorney, Office of Immigration Litigation, for

respondent Eric H. Holder Jr.

OPINION

BENITEZ, District Judge:

Petitioner Pan Bahadur Tamang petitions for review of the

Board of Immigration Appeals’ (“BIA’s”) order dismissing

his appeal of an immigration judge’s (“IJ’s”) denial of his

application for asylum, withholding of removal, and protection under the United Nations Convention Against Torture

(“CAT”). We dismiss the petition for review as to Tamang’s

asylum claim on the grounds that the claim was untimely. As

to Tamang’s remaining claims, we have jurisdiction under 8

U.S.C. § 1252, and we deny the petition for review.

TAMANG v. HOLDER 4285
BACKGROUND

Tamang is a native and citizen of Nepal. On July 18, 1999,

Tamang entered the United States on a visitor visa. When

Tamang’s visa expired on January 17, 2000, Tamang

remained in, and at all relevant times has remained in, the

United States. More than five years later, on August 12, 2005,

Tamang filed an application (“Application”) for asylum, withholding of removal, and protection under CAT. 

Tamang’s Application includes a declaration stating,

among other things, that Tamang’s family was threatened by

Maoists and Maoists broke Tamang’s brother’s leg during an

altercation. This altercation apparently took place in 2002,

i.e., three years after Tamang arrived in the United States. The

record shows Tamang’s brother entered the United States on

June 18, 2002 and was later granted asylum in December

2005. 

On January 23, 2007, a hearing was held on Tamang’s

Application. At the hearing, Tamang conceded he failed to

file a timely petition for asylum. Tamang testified he did not

file an earlier application because an attorney told him it was

not necessary since Tamang was not personally attacked. On

cross-examination, Tamang testified that he got this advice

from a “friend,” whose name he did not know, and that he

recently decided to file the Application because his brother

obtained asylum in an earlier proceeding. 

Tamang also testified that his family had been active in

Nepalese politics: Tamang, his brother, and his father were

members of the Nepali Congress Party, and Tamang’s father

was the president of the Village Development Committee.

Tamang testified that, after the altercation with Maoists in

2002, his parents moved to India. However, in September

2006, Tamang’s parents returned to Nepal and have not had

problems with Maoists since their return. Tamang also testified that he has not been personally harmed by Maoists and,

4286 TAMANG v. HOLDER
in fact, he has had no contact with Maoists at all. Tamang also

conceded that the Nepali Congress Party became the head of

government in 2006 and a ceasefire was declared with the

Maoists. 

Nevertheless, Tamang testified he cannot safely return to

Nepal because he believes Maoists are looking for him. 

At the conclusion of the hearing, the IJ issued an order

denying all relief sought by Tamang. Specifically, the IJ

found that Tamang’s asylum application was untimely and

failed to demonstrate changed or extraordinary circumstances

excepting the application from the one year statute of limitation. The IJ found incredible Tamang’s belief that he did not

have to file his application within the one-year period and that

he had been advised against filing by an attorney. According

to the IJ, Tamang is a relatively well-educated individual who

could be expected to seek out further advice, especially given

his fear of persecution and the knowledge of his family’s suffering as early as 2002, i.e., three years before Tamang filed

his asylum application. 

The IJ further determined that Tamang had not established

past persecution in Nepal, noting that Tamang’s brother had

“suffered significant physical violence,” but that Tamang was

in the United States at that time and had not made “any claim

that he himself had any interaction with them.” The IJ further

noted that even Tamang’s family had returned to Nepal and

have not had any interaction with Maoists since 2002. 

The IJ also found that there had been a change in country

conditions that mitigated against any fear of future persecution, especially in light of Tamang’s political party being the

new majority party in the Nepalese government. The IJ further noted that asylum seekers such as Tamang “can be

expected to relocate to a community elsewhere in their country,” just as his family had done. 

TAMANG v. HOLDER 4287
The IJ also denied Tamang’s application for CAT protection, finding Tamang had not demonstrated a risk of torture

by the government if he were to return to Nepal and noting

that Tamang’s own political party now forms the government

in Nepal.

On July 31, 2008, the BIA affirmed the IJ’s decision and

dismissed Tamang’s appeal. The BIA adopted the IJ’s decision in its entirety. This timely appeal ensued.

DISCUSSION

In upholding the IJ’s denial of Tamang’s Application, the

BIA “adopt[ed] and affirm[ed] the Immigration Judge’s decision,” citing Matter of Burbano, 20 I. & N. Dec. 872, 874

(BIA 1994). We, therefore, look through the BIA’s decision

and treat the IJ’s decision as the final agency decision for purposes of this appeal. Gonzalez v. INS, 82 F.3d 903, 907 (9th

Cir. 1996). 

We review the IJ’s factual findings for substantial evidence. INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992).

Under the substantial evidence test, we must uphold the IJ’s

findings, “if supported by reasonable, substantial and probative evidence on the record considered as a whole.” Id. (internal quotation marks omitted). 

We review de novo questions of law and legal conclusions.

Monjaraz-Munoz v. INS, 327 F.3d 892, 895 (9th Cir. 2003).

We review separately the requests by Tamang for asylum,

withholding of removal and CAT protection. 

I. ASYLUM

[1] An asylum application must be filed within one year of

the petitioner’s arrival in the United States. 8 U.S.C.

§ 1158(a)(2)(B). One exception, however, is where the peti4288 TAMANG v. HOLDER
tioner demonstrates “extraordinary circumstances relating to

the delay.” Id. § 1158(a)(2)(D). The Code of Federal Regulations sets forth several categories of “extraordinary circumstances” for purposes of asylum relief. 8 C.F.R.

§ 1208.4(a)(5)(i)-(vi). The category relevant here is “ineffective assistance of counsel.” Id. § 1208.4(a)(5)(iii). Tamang

appeals the IJ’s finding that he failed to demonstrate ineffective assistance of counsel. 

A. JURISDICTION

As a threshold matter, we must consider whether we have

jurisdiction to review the IJ’s finding. The short answer is yes.

[2] We address this issue because two statutory provisions

provide that no court has jurisdiction to review a determination of the IJ or BIA relating to the one-year bar or the exceptions for changed or extraordinary circumstances thereunder.

See 8 U.S.C. §§ 1158(a)(3) and 1252(a)(2)(B). In 2005, however, Congress passed the REAL ID Act which restored our

jurisdiction, but only for those decisions invoking constitutional claims or questions of law. Id. § 1252(a)(2)(D); see also

Husyev v. Mukasey, 528 F.3d 1172, 1178-79 (9th Cir. 2008).

We must, therefore, determine whether Tamang’s ineffective

assistance claim involves a question of law. 

[3] “Questions of law,” as that phrase is used under the

REAL ID Act, extends to questions involving the application

of statutes or regulations to undisputed facts, also known as

mixed questions of fact and law. Ramadan v. Gonzales, 479

F.3d 646, 650 (9th Cir. 2007); see also Pullman-Standard v.

Swint, 456 U.S. 273, 289-90 & n.19 (1982) (mixed questions

of law and fact are those “in which the historical facts are

admitted or established, the rule of law is undisputed, and the

issue is whether the facts satisfy the statutory standard, or to

put it another way, whether the rule of law as applied to the

established facts is or is not violated”). 

TAMANG v. HOLDER 4289
[4] Ninth Circuit authority also provides that the “ineffective assistance” prong of the extraordinary circumstances

exception is treated as a mixed question of law and fact, as

long as the relevant underlying facts are not disputed. See,

e.g., Ghahremani v. Gonzales, 498 F.3d 993, 999 (9th Cir.

2007) (noting same in the context of an appeal of the BIA’s

denial of a motion to reopen deportation proceedings). However, until now, there have been no published decisions specifying which underlying facts cannot be disputed for purposes

of this determination. 

[5] At least one Ninth Circuit case has held, albeit under

a different category of extraordinary circumstances, that jurisdiction existed where the following facts were not disputed:

the date of petitioner’s arrival; the expiration of a petitioner’s

legal status; and the petitioner’s application for asylum.

Husyev, 528 F.3d at 1179 (finding that petitioner’s extraordinary circumstances exception based on the “reasonable period” prong was a mixed question of law and fact because these

same facts were not disputed). Although not specifically

stated, those facts pertain to the elements necessary to prove

the extraordinary circumstances category at issue in that case,

i.e., that the petitioner had maintained lawful immigration status until a reasonable time before filing his or her asylum

application per 8 C.F.R. § 1208.4(a)(5)(iv). Although the reasonable period category is not at issue in this case, applying

the Husyev concept here, it is clear Tamang’s ineffective

assistance of counsel claim is a mixed question of law and

fact.

To satisfy an ineffective assistance of counsel claim, a petitioner must: (1) provide an affidavit detailing the agreement

with counsel and any representations counsel did or did not

make regarding the agreement; (2) inform counsel of the

alleged ineffectiveness and provide an opportunity to respond;

and (3) file a complaint with the appropriate disciplinary

authorities, or if no such complaint was filed, explain why. Id.

§ 1208.4(a)(5)(iii)(A)-(C). 

4290 TAMANG v. HOLDER
[6] Tamang does not dispute that he failed to satisfy these

factual elements; rather, as more fully discussed below,

Tamang argues he should not be required to satisfy these elements. As such, the relevant facts are undisputed and, pursuant to Ninth Circuit authority, Tamang’s claim is a mixed

question of law and fact. Accordingly, we find we have jurisdiction to review the IJ’s finding that Tamang’s asylum application was time-barred. 

B. INEFFECTIVE ASSISTANCE OF COUNSEL

[7] As noted, Tamang argues he is excepted from the oneyear limitation period based on alleged “ineffective assistance

of counsel.” To qualify for this exception, a petitioner must

(1) provide an affidavit detailing the agreement with counsel

and any representations counsel did or did not make regarding

the agreement; (2) inform counsel of the allegation of ineffectiveness and provide an opportunity to respond; and (3) file a

complaint with the appropriate disciplinary authorities, or if

no such complaint was filed, explain why. 8 C.F.R.

§ 1208.4(a)(5)(iii)(A)-(C). Additionally, a petitioner must file

his or her untimely application within a reasonable period

given the circumstances. Id. §§ 208.4(a)(5) and 1208.4(a)(5).

These elements are a codification of earlier common law

based on Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988)

and followed by this Circuit, as well as several sister circuits.

See, e.g., Zheng v. U.S. Dep’t of Justice, 409 F.3d 43, 46 (2nd

Cir. 2005); Hamid v. Ashcroft, 336 F.3d 465, 469 (6th Cir.

2003); Lopez v. INS, 184 F.3d 1097, 1100 (9th Cir. 1999). 

[8] Here, it is undisputed Tamang failed to satisfy these

conditions. Rather, Tamang argues strict compliance with

these conditions is not necessary. Tamang cites the following

cases to support his argument: Castillo-Perez v. INS, 212 F.3d

518 (9th Cir. 2000); Lo v. Ashcroft, 341 F.3d 934 (9th Cir.

2003); and Rojas-Garcia v. Ashcroft, 339 F.3d 814 (9th Cir.

2003). 

TAMANG v. HOLDER 4291
[9] As noted by Tamang, these cases held that strict compliance with Lozada was not required because, under the circumstances of those cases, the ineffectiveness of counsel was

plain on its face. Castillo-Perez, 212 F.3d at 526 (ineffectiveness was plain on its face where petitioner’s former counsel

misrepresented to petitioner that his application had been filed

and petitioner later filed a declaration complying with

Lozada); Lo, 341 F.3d at 938 (ineffectiveness was plain on its

face where former counsel mis-calendared the removal hearing, petitioner failed to appear at the hearing, and declarations

were filed that complied with the first two prongs of Lozada);

Rojas-Garcia, 339 F.3d at 824-25 (ineffectiveness was plain

on its face where former counsel forgot to file the brief

because he was transitioning to a new job and taking over a

former colleague’s caseload, and declarations were filed satisfying the first prong of Lozada). 

[10] Here, however, the ineffectiveness of Tamang’s former counsel’s assistance is not plain on its face. First, Tamang

could not remember the name of his former counsel or the

dates or circumstances of any purported contact with his former counsel. Indeed, it is not even clear Tamang spoke with

an attorney, as opposed to a mere consultant or friend whose

opinion Tamang cannot rely upon for purposes of the ineffective assistance exception. See generally Albillo-DeLeon v.

Gonzales, 410 F.3d 1090, 1099 (9th Cir. 2005). Additionally,

unlike the cases upon which Tamang relies, Tamang has not

complied, either timely or untimely, with any of the Lozada

requirements. 

Rather, it appears Tamang’s Application presents the very

circumstances for which the Lozada requirements, and now 8

C.F.R. § 1208.4(a)(5)(iii)(A)-(C), were intended. The goal of

Lozada was to provide a more objective basis from which to

assess the veracity of the substantial number of ineffective

assistance claims asserted by asylum applicants and to hold

attorneys to appropriate standards of performance. See

Lozada, 19 I. & N. Dec. at 639-40. Where these goals are fur4292 TAMANG v. HOLDER
thered, courts have unanimously upheld the requirements set

forth in Lozada. See, e.g., Rojas-Garcia, 339 F.3d at 824-25;

Lo, 341 F.3d at 937-38. As we have stated, “Lozada is

intended to ensure both that an adequate factual basis exists

in the record for an ineffectiveness complaint and that the

complaint is a legitimate and substantial one.” Castillo-Perez,

212 F.3d at 526. 

[11] Here, without Tamang’s compliance with the Lozada

elements, as codified in 8 C.F.R. § 1208.4(a)(5)(iii)(A)-(C), it

is impossible to determine whether Tamang’s ineffective

assistance of counsel claim has merit. By failing to provide

any information regarding his purported former counsel,

Tamang has also failed to provide any other independent basis

from which to analyze his claim. Therefore, as recognized by

the IJ, Tamang’s failure to satisfy the Lozada requirements

was fatal to Tamang’s claim for ineffective assistance of

counsel. 

Even if “extraordinary circumstances” were found, Tamang

failed to file his Application within a reasonable period after

being on notice of his purported former counsel’s error. Substantial evidence on the record supports the IJ’s finding that

Tamang was on notice of the need to file his Application in

at least 2000 or 2001 and was a relatively well-educated individual such that one could expect Tamang to seek other

advice. This is especially true if, as Tamang claims, he had a

great fear of returning to his home country. Nonetheless,

Tamang did not file his Application until 2005, at least four

years later. As such, the requirements of 8 U.S.C.

§ 1158(a)(2)(D) and 8 C.F.R. § 1208.4(a)(5) for exception to

the one-year statute of limitation are not met.

[12] In light of these circumstances, we hold that substantial evidence supports the IJ’s dismissal of the asylum claim.

II. WITHHOLDING OF REMOVAL

Withholding of removal requires the petitioner to demonstrate his or her “life or freedom would be threatened in that

TAMANG v. HOLDER 4293
country because of the [petitioner’s] race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3). Similar to asylum, a petitioner

may establish eligibility for withholding of removal (A) by

establishing a presumption of fear of future persecution based

on past persecution, or (B) through an independent showing

of clear probability of future persecution. 8 C.F.R.

§ 1208.16(b)(1) and (2). 

[13] Unlike asylum, however, the petitioner must show a

“clear probability” of the threat to life or freedom if deported

to his or her country of nationality. INS v. Stevic, 467 U.S.

407, 429-30 (1984). The Supreme Court has defined “clear

probability” to mean it is “more likely than not” that the petitioner would be subject to persecution on account of one of

the protected grounds. INS v. Cardoza-Fonseca, 480 U.S.

421, 429 (1987). The clear probability standard is more stringent than the well-founded fear standard for asylum.

Khunaverdiants v. Mukasey, 548 F.3d 760, 767 (9th Cir.

2008).

A. PAST PERSECUTION

Establishing a presumption of fear of future persecution

arising from past persecution is one way to obtain withholding of removal. This presumption may be rebutted where the

IJ finds changed country conditions mitigate against the threat

of persecution or the petitioner could reasonably be expected

to relocate to a different part of his or her country. 8 C.F.R.

§§ 208.16(b)(1)(i) and 1208.16(b)(1)(i). 

Tamang argues the IJ erred in failing to deem threats and

violence against his family as past persecution of Tamang

himself; finding changed conditions in Nepal mitigate against

any fear of persecution if Tamang returned to Nepal; and finding Tamang could reasonably be expected to relocate elsewhere in Nepal. 

4294 TAMANG v. HOLDER
1. Threats Against Family

[14] Under Ninth Circuit law, a petitioner claiming past

persecution must demonstrate “[p]articularized individual persecution, not merely conditions of discrimination,” in order to

qualify for withholding of removal. Prasad v. INS, 47 F.3d

336, 340 (9th Cir. 1995); see also Sanchez-Trujillo v. INS,

801 F.2d 1571, 1574 (9th Cir. 1986). While we have recognized that harm to a petitioner’s close family members or

associates may be relevant to assessing whether the petitioner

suffered past persecution, we have not found that harm to others may substitute for harm to an applicant, such as Tamang

in this case, who was not in the country at the time he claims

to have suffered past persecution there. See, e.g., Mashiri v.

Ashcroft, 383 F.3d 1112, 1121 (9th Cir. 2004) (finding that

petitioner satisfied her showing of particularized persecution

based on several acts of violence and discrimination against

her family members, which petitioner personally dealt with on

a day-to-day basis.); Rodriguez-Rivera v. INS, 848 F.2d 998,

1005-06 (9th Cir. 1998) (petitioner’s allegation that he faced

persecution based on his refusal to join the army and subsequent flight to avoid joining the army was not sufficient to

establish persecution for purposes of withholding of removal).

The cases cited by Tamang are factually inapposite. In Kaiser v. Ashcroft, 390 F.3d 653, 656 (9th Cir. 2004), the petitioner was an officer in the Pakistani army and had been

placed on a hit list by a violent political party based on petitioner’s role in apprehending and convicting several of the

party’s leaders. The petitioner personally suffered two

attempts on his life but then moved elsewhere in Pakistan and

lived there without any further trouble. When the petitioner

tried to return to his prior hometown, threats of future harm

to him and his family resumed, at which point petitioner and

his family moved to the United States. Id. at 656-67. 

The BIA denied petitioner’s request for withholding of

removal because the threats to the petitioner had not been carTAMANG v. HOLDER 4295
ried out and the petitioner could safely relocate elsewhere in

Pakistan; therefore, the higher standard applicable to withholding of removal had not been satisfied. Id. at 657. The

Ninth Circuit upheld this determination, but remanded the

case to the BIA for further determination on the less stringent

standard applicable to asylum because, among other things,

the petitioner had suffered personal injury before the threats

and, therefore, the threats could establish a “well-founded

fear” of persecution for asylum purposes. Id. at 658-59. 

Here, unlike in Kaiser, Tamang did not suffer any personal

persecution. Additionally, as noted, Tamang’s claim for asylum is time-barred. Therefore, unlike in Kaiser, there is no

question of whether Tamang could have satisfied the less

stringent standard of “well-founded” fear of persecution for

asylum purposes. If anything, because the court in Kaiser

found withholding of removal was not warranted, Kaiser supports the conclusion that the IJ did not err in denying

Tamang’s withholding of removal in this case. 

The other cases cited by Tamang are likewise unavailing.

In Bolanos-Hernandez v. INS, 767 F.2d 1277 (9th Cir. 1984),

the petitioner had suffered threats of violence against him personally, while he was residing in his native country. Id. at

1280. Those circumstances are not present here, as Tamang

testified he did not suffer any personal persecution. In

Rodriguez-Rivera, 848 F.2d at 1005-06, similar to this case,

the petitioner asserted a general fear of persecution based on

petitioner’s refusal to join the army in his native country and

subsequent flight to avoid joining the army. The petitioner

also alleged threats of violence by guerrillas against him personally. We held that such evidence does not establish past

persecution for purposes of withholding of removal. Id. at

1005-06. 

Tamang emphasizes that his brother was granted asylum

and argues that, absent similar relief for Tamang, the possibility of inconsistent asylum treatment exists. We first note that,

4296 TAMANG v. HOLDER
unlike Tamang, Tamang’s brother filed a timely asylum application and, therefore the less stringent standard of “wellfounded fear” applied. Second, we note that Tamang’s

brother, unlike Tamang, suffered direct persecution by Maoists: Tamang’s brother was at the family’s home in Nepal

when Maoists visited the family in 2002, and Tamang’s brother’s leg was broken by Maoists in the ensuing altercation. 

These circumstances are distinct from the circumstances

presented in Njuguna v. Ashcroft, 374 F.3d 765 (9th Cir.

2004) and Wang v. Ashcroft, 341 F.3d 1015 (9th Cir. 2003).

Unlike in Njunga and Wang, having already moved to the

United States at the time of the alleged persecution, Tamang

was far removed from the persecution that his brother suffered and was not directly impacted in any way. Additionally,

this is not a situation where two different IJs could reasonably

differ; rather, the IJ in this case is the same IJ who granted

asylum to Tamang’s brother. Therefore, the IJ had personal

knowledge of his brother’s application and, in fact, took extra

time to note on the record the many differences between

Tamang’s and his brother’s applications and the bases for

awarding different treatment. 

[15] In light of the above, we find substantial evidence

supports the IJ’s finding that Tamang did not suffer past persecution. 

2. Changed Country Conditions

[16] The IJ is permitted to consider changed country conditions pursuant to 8 C.F.R. § 1208.16(b)(1)(A) (stating that

a presumption of threat to life or freedom can be rebutted if

the IJ finds, upon a preponderance of evidence, that “[t]here

has been a fundamental change in circumstances . . .”). Even

if Tamang had suffered past persecution, we find substantial

evidence supports the IJ’s finding that changed conditions in

Nepal mitigate against any fear of persecution if Tamang

returned to Nepal. 

TAMANG v. HOLDER 4297
The IJ’s decision on changed country conditions was based,

in large part, on Tamang’s testimony that no member of his

family has had any contact with Maoists since the altercation

in 2002; Tamang’s family returned to Nepal in 2006 and continues to live there without incident; and the political party

with which Tamang and his family were associated now

forms the government of Nepal. These facts came from

Tamang’s own testimony and were not disputed. Respondent

also produced newspaper articles showing the general change

in political conditions in Nepal. The IJ listed the reasons for

his finding and explained how these reasons related directly

to Tamang’s ability to return to Nepal without fear. As such,

we find substantial evidence supports the IJ’s decision. 

Tamang also contests the IJ’s adverse credibility finding.

With respect to changed country conditions, the only adverse

credibility finding made by the IJ was the IJ’s statement, “I

do not find credible the respondent’s repeated statement

‘nothing has changed.’ ” Even if this finding formed a basis

of the IJ’s decision, substantial evidence supports the IJ’s

adverse credibility finding. 

[17] We recently had the opportunity to apply the REAL

ID Act’s new standard for adverse credibility findings in

Shrestha v. Holder, 590 F.3d 1034, 1039-48 (9th Cir. 2010).

There, we noted the new standard enacted by Congress provides that any inaccuracies, omissions of detail, or inconsistencies found by the IJ, regardless of whether they go to the

“heart” of a petitioner’s claim, may support an adverse credibility finding. See id. at 1040-43 (citing 8 U.S.C.

§ 1158(b)(1)(B)(iii)). However, we followed several other circuits in cautioning that an IJ cannot selectively examine evidence in determining credibility, but rather must present a

reasoned analysis of the evidence as a whole and cite specific

instances in the record that form the basis of the adverse credibility finding. Id. at 1041-42.

[18] Applied here, we find the IJ’s adverse credibility finding is supported by the record. The IJ cited the discrepancy

4298 TAMANG v. HOLDER
between Tamang’s testimony that nothing had changed and

the evidence produced by Respondent and supplied by

Tamang’s own testimony showing that political conditions

had changed and Tamang’s political party is currently the

head of the government. The IJ stated specific and cogent reasons why Tamang’s statement “nothing has changed” was

unavailing. As such, we find substantial evidence supports the

IJ’s adverse credibility ruling. 

In light of the foregoing, we need not address the IJ’s determination that Tamang could reasonably be expected to relocate elsewhere, as that issue has been rendered moot. 

B. CLEAR PROBABILITY OF FUTURE 

PERSECUTION

[19] A petitioner may also qualify for withholding of

removal based on a clear probability of future persecution. To

satisfy this standard, a petitioner must demonstrate that his or

her fear is “both subjectively genuine and objectively reasonable.” Similar to the above, a perceived fear of future persecution may be rebutted if the petitioner could relocate elsewhere

in his or her native country, and it would be reasonable to

expect the petitioner to do so. 8 C.F.R. § 1208.16(b)(2). 

“An immigrant may demonstrate that her fear is subjectively genuine merely by credibly testifying that [s]he genuinely fears persecution.” Rodas-Mendoza v. INS, 246 F.3d

1237, 1239 (9th Cir. 2001) (internal quotation marks omitted).

Here, Tamang testified that based on the persecution suffered

by his family, Tamang has a fear of future persecution if

returned to Nepal. Tamang has, thus, satisfied the subjective

prong of this analysis. 

However, the IJ found Tamang’s fear of future persecution

was not objectively reasonable. Tamang testified his parents

returned to Nepal in 2006 and his family has had no problems

with Maoists since their return. “It is well established in this

TAMANG v. HOLDER 4299
court that an alien’s history of willingly returning to his or her

home country militates against a finding of past persecution

or a well-founded fear of future persecution.” Loho v.

Mukasey, 531 F.3d 1016, 1017-18 (9th Cir. 2008) (quoting

Kumar v. Gonzales, 439 F.3d 520, 524 (9th Cir. 2006) and

Boer-Sedano v. Gonzales, 418 F.3d 1082, 1091 (9th Cir.

2005)). “We have also held that a petitioner’s fear of future

persecution ‘is weakened, even undercut, when similarlysituated family members’ living in the petitioner’s home

country are not harmed.” Sinha v. Holder, 564 F.3d 1015,

1022 (9th Cir. 2009) (citing Hakeem v. INS, 273 F.3d 812,

816 (9th Cir. 2001)). Here, because Tamang’s fear of future

persecution rests solely upon threats received by his family,

it is especially significant that his family voluntarily returned

to Nepal and continues to live there unharmed, after being

threatened by Maoists in 2002. 

Tamang’s fear of future persecution is further tempered by

evidence showing changed country conditions in Nepal, as

noted above. Specifically, the IJ noted that the Nepalese king

reinstated the 1999 parliament which was democratically

elected and led by Tamang’s political party. The IJ further

noted that the Maoists declared a ceasefire in April 2006 and

had joined other parties in parliament. Tamang, notably, conceded these facts. 

[20] To rebut the evidence, Tamang cited to vague threats

made against his family. Although a reasonable factfinder

may find these threats relevant, the threats do not compel a

finding of clear probability of future persecution. Therefore,

we find that, when viewing the record as a whole, substantial

evidence exists to support the IJ’s finding that Tamang’s perceived fear of future persecution is not objectively reasonable.

III. CAT PROTECTION

We finally turn to the IJ’s denial of CAT protection. To

support his request for CAT protection, Tamang relies on the

4300 TAMANG v. HOLDER
same evidence and arguments submitted in support of asylum

and withholding of removal. 

[21] To qualify for CAT protection, a petitioner must show

it is more likely than not he or she would be tortured if

removed to the country of origin. 8 C.F.R. § 208.16(c)(2);

Morales v. Gonzales, 478 F.3d 972, 983 (9th Cir. 2007). The

same “more likely than not” standard applies to CAT protection as it does to withholding of removal; however, for CAT

protection, the harm feared must meet the definition of torture. Additionally, unlike withholding of removal under the

Immigration and Nationality Act, withholding of removal

under CAT is based entirely on an objective basis of fear;

there is no subjective component to a petitioner’s fear of torture. Therefore, evidence of relevant country conditions is

extremely important, as is the ability of Tamang to safely

relocate to another part of his country of origin. 8 C.F.R.

§ 208.16(c)(3). 

[22] For the same reasons stated above under withholding

of removal, the record does not compel the conclusion that

Tamang merits CAT protection. Tamang fails to present evidence or even allege that he would most likely be tortured by

or with the acquiescence of a government official or other

person acting in an official capacity. 8 C.F.R. § 1208.18(a)(1).

As such, we hold a reasonable factfinder would not be compelled to find Tamang eligible for CAT protection. We conclude that substantial evidence supports the IJ’s finding that

Tamang does not merit CAT protection.

CONCLUSION

We DISMISS IN PART, DENY IN PART Tamang’s

petition for review of the IJ’s denial of asylum, withholding

of removal, and CAT protection.

TAMANG v. HOLDER 4301