NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 17-1528

_____________

RABINDER BALAMI,

 Petitioner

v.

ATTORNEY GENERAL UNITED 

STATES OF AMERICA,

Respondent

______________

Petition for Review of an Order of 

the Board of Immigration Appeals

(Agency No. A208-920-974)

Immigration Judge: Honorable Leo A. Finston

______________

Submitted Under Third Circuit L.A.R. 34.1(a)

October 27, 2017

______________

Before: GREENAWAY, JR., COWEN, Circuit Judges, and PADOVA, Senior

District Judge.

*

(Opinion Filed: December 4, 2017)

 

* The Honorable John R. Padova, Senior United States District Judge for the 

Eastern District of Pennsylvania, sitting by designation. 
2

______________

OPINION**

______________

PADOVA, Senior District Judge.

Rabinder Balami petitions for review of a decision and order of the Board of 

Immigration Appeals (“BIA”) dismissing his appeal from the decision of the Immigration 

Judge (“IJ”) that denied his applications for asylum, withholding of removal under the 

Immigration and Nationality Act (“INA”), and protection under the Convention Against 

Torture (“CAT”). For the reasons that follow, we will deny the petition for review. 

I. 

Balami is a native and citizen of Nepal, who entered the United States without 

proper documentation on January 28, 2016. The Department of Homeland Security 

commenced removal proceedings on February 16, 2016. Seeking relief from removal, 

Balami filed applications for asylum, withholding of removal, and relief under the CAT, 

asserting that members of the Maoist Party in Nepal had persecuted him on account of his 

affiliation with the Nepali Congress Party. 

Balami testified under oath before an IJ and submitted supporting documentation. 

He testified that he was born in Nepal in 1984 and lived there for most of his life. In 

2012, he was followed by individuals who asked him to join the Maoist Party and had to 

 

** This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 

does not constitute binding precedent.
3

run away from them. The next year, he was again asked about joining the Maoist Party, 

this time by individuals who approached him while he was working at a restaurant. 

When he told these individuals that he was not interested in joining the Maoists, they got 

angry, one hit him in the head with a beer bottle, one threw a bottle at his feet, and 

another grabbed him by the neck. They then threatened to kill Balami if they saw him 

again. Balami testified that he went to a medical clinic for injuries he sustained in that 

attack and received stitches in his knee. Several months after this incident, when Balami 

was working at a different restaurant in another town, he got a feeling that someone was 

following him, but never actually saw anyone. Then, in June of 2015, Balami was out 

walking in yet another town in Nepal when two armed members of the Maoist Party

approached him. One grabbed him by the neck from behind, but Balami ran away, and 

the Maoists chased him with their guns. Three months later, Balami left for the United 

States. While he was traveling to the United States, a member of the Maoist Party called

his parents and threatened them. In support of this assertion, Balami’s father, brother, 

and wife submitted affidavits stating that a Maoist called and demanded either a donation 

or that Balami join the Maoist Party and threatened to take “severe action” if the demands 

were not met. 

After considering all of the evidence presented, the IJ denied Balami’s 

applications and ordered his removal to Nepal. Although the IJ found that Balami was 

not credible, he also analyzed the evidence under the assumption that Balami was 

credible. Upon doing so, the IJ concluded that Balami had not sustained his burdens of 
4

proof applicable to asylum, withholding of removal under the INA, and relief under the

CAT. Balami appealed the IJ’s decision and order, and the BIA dismissed the appeal. 

While the BIA declined to reach the IJ’s determination that Balami was not credible, it 

agreed with the IJ’s alternative determination that, even if Balami was presumed to be 

credible, he had not sustained his applicable burdens of proof. Balami filed a timely 

petition for review. 

II. 

We have jurisdiction to review the BIA’s final order of removal pursuant to 8 

U.S.C. § 1252(a). Where, as here, “the BIA both adopts the findings of the IJ and 

discusses some of the bases for the IJ’s decision, we have authority to review the 

decisions of both the IJ and the BIA.”1 He Chun Chen v. Ashcroft, 376 F.3d 215, 222 (3d 

Cir. 2004) (citations omitted). 

Under the INA, the Attorney General may grant asylum to any alien who 

demonstrates that he meets the definition of a “refugee.” 8 U.S.C. § 1158(b)(1)(A). A 

refugee is defined as a person unable or unwilling to return to his country “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). 

Accordingly, an asylum applicant may demonstrate that he qualifies for asylum by 

 

1 We do not, however, review issues in the IJ’s decision that the BIA did not 

reach. Sandie v. Att’y Gen., 562 F.3d 246, 250 (3d Cir. 2009). Thus, like the BIA, we 

will assume that Balami was a credible witness. 
5

establishing either past persecution or his well-founded fear of future persecution. See id.

The applicant must also establish that the acts of persecution were “committed by the 

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

Att’y Gen., 665 F.3d 496, 504 (3d Cir. 2011) (quoting Sukwanputra v. Gonzales, 434 F.3d 

627, 637 (3d Cir. 2006)). 

To establish a right to mandatory withholding of removal under the INA, an 

applicant must show that there is a “clear probability” that he will be persecuted when 

returned to his country. Chen, 376 F.3d at 223 (citations omitted). This is a more 

rigorous standard than that applicable to asylum and, thus, “an alien who fails to establish 

that he . . . has a well-founded fear of persecution, so as to be eligible for a grant of 

asylum, necessarily will fail to establish the right to withholding of removal [under the 

INA].” Id. (citing Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003)).

On appeal, we review the factual findings, including findings concerning past 

persecution and fear of future persecution, only to determine if they are supported by

substantial evidence. Shardar v. Ashcroft, 382 F.3d 318, 323 (3d Cir. 2004). Substantial 

evidence is “such relevant evidence as a reasonable mind might accept as adequate to 

support a conclusion.” Kibinda v. Att’y Gen., 477 F.3d 113, 119 (3d Cir. 2007) (quoting

Senathirajah v. INS, 157 F.3d 210, 216 (3d Cir. 1998)). Thus, under our narrow standard

of review, “[t]he administrative findings of fact are conclusive unless any reasonable 

adjudicator would be compelled to conclude to the contrary.” Shardar, 382 F.3d at 323

(quoting 8 U.S.C. § 1252(b)(4)(B)). We review the BIA’s legal conclusions de novo.
6

Mendoza-Ordanez v. Att’y Gen., 869 F.3d 164, 169 (3d Cir. 2017) (citation omitted).

III. 

Balami argues that the BIA erred in dismissing his appeal, which challenged the 

denial of his applications for asylum, withholding of removal under the INA, and relief 

under the CAT. Specifically, Balami argues that the BIA erred in affirming the IJ’s 

conclusions that he had not established past persecution, a well-founded fear of future 

persecution, a nexus to a protected ground under the INA, or that his alleged persecution 

was committed by forces that the Nepalese government was unable or unwilling to 

control. He further argues that the BIA erred in affirming the IJ’s conclusion that he had 

not established an entitlement to relief under the CAT, because he failed to establish that 

it was more likely than not that he would be tortured if returned to Nepal. 

A.

To establish past persecution, an applicant for asylum must establish that he 

suffered treatment akin to “threats to life, confinement, torture, [or] economic restrictions 

so severe that they constitute a threat to life or freedom.” Kibinda, 477 F.3d at 119

(quoting Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993)). Thus, “persecution refers only 

to ‘severe’ conduct.” Id. (quoting Fatin, 12 F.3d at 1240). An asylum applicant must 

also establish that “one central reason” for the persecution he encountered was “race, 

religion, nationality, membership in a particular social group, or political opinion,” i.e., 

that there is a nexus between the harm suffered and a protected ground under the INA. 8 

U.S.C. § 1158(b)(1)(B)(i). 
7

“Severe conduct” that amounts to persecution “does not encompass all treatment 

our society regards as unfair, unjust or even unlawful or unconstitutional.” Kibinda, 477 

F.3d at 119 (quoting Fatin, 12 F.3d at 1240). Rather, the conduct must be “extreme,” not 

merely offensive, and it must cause a severe injury. Id. at 119-20 (quoting Fatin, 12 F.3d 

at 1243). And where the alleged persecution is grounded on threats, it is not sufficient to 

establish that the threats were “sinister and credible.” Chavarria v. Gonzalez, 446 F.3d 

508, 518 (3d Cir. 2006). Instead, the threats must be “highly imminent or concrete” and 

“so menacing as to cause significant actual ‘suffering or harm.’” Id. at 518 (quoting Li v. 

Att’y Gen., 400 F.3d 157, 164 (3d Cir. 2005)). 

Here, the IJ found that Balami’s evidence of a single physical attack, being chased 

by Maoists, and verbal threats did not rise to the level of persecution, and the BIA agreed. 

In reaching this conclusion, both the IJ and BIA relied on this Court’s decision in Kibinda

v. Attorney General of the United States, 477 F.3d 113 (3d Cir. 2007), which concluded 

that an alien’s mistreatment in prison that resulted in a physical injury that left a scar, but 

required only a few stitches, did not amount to persecution in the absence of additional 

evidence of severity. Id. at 119-20. 

Balami now argues that the IJ and the BIA both erred in relying on Kibinda, 

noting that his physical injury, unlike Kibinda’s, involved an intentional infliction of 

harm, and that he, unlike Kibinda, experienced additional harassment on other occasions. 

The decision in Kibinda, however, in no way rested on the state of mind of Kibinda’s 

harassers and, thus, the fact that Kibinda’s injury may have been inflicted unintentionally 
8

while Balami’s was intentionally inflicted is a factual distinction that is inconsequential 

to our severity analysis. Moreover, we find no reversible error in the BIA’s conclusion 

that the IJ correctly found that the 2013 physical attack, together with the armed chase 

and threats, did not rise to the level of past persecution. Indeed, the threatening chase and 

oral threats, none of which resulted in actual physical harm, simply were not so imminent 

or menacing as to support a finding of persecution. Accordingly, the record does not 

compel a conclusion that Balami’s encounters with the Maoists were so severe as to 

constitute extreme conduct that amounted to persecution as is required to prevail on an 

asylum claim grounded on past persecution, and we reject Balami’s argument to the 

contrary. 

Balami also challenges the determination that he did not establish past persecution 

because he did not establish a nexus to a protected ground under the INA. Where, as 

here, an applicant claims that he was persecuted on account of a political opinion, he 

must show that he was harmed due either to an actual political opinion or an imputed 

political opinion. Espinosa-Cortez v. Att’y Gen., 607 F.3d 101, 108 (3d Cir. 2010) (citing

Lukwago v. Ashcroft, 329 F.3d 157, 181 (3d Cir. 2003)). An applicant’s claim grounded 

on an actual political opinion must “(1) specify the political opinion on which he . . .

relies, (2) show that he . . . holds that opinion, and (3) show that he . . . would be 

persecuted or has a well-founded fear of persecution based on that opinion.” Fatin, 12 

F.3d at 1242. Where an applicant proceeds based on an imputed political opinion, the 

court may grant asylum “where the motives and perspective of the persecutor 
9

demonstrate that the persecution was on account of a belief attributed to the alien, even 

where the alien did not overtly subscribe to that belief.” Chavarria, 446 F.3d at 516 

(citing Desir v. Ilchert, 840 F.2d 723, 728 (9th Cir. 1988)).

Here, the IJ concluded that Balami had not established the requisite nexus, noting 

that Balami claimed that the alleged persecution was on account of his “political 

opinion,” but disavowed that he held any specific political opinion, and failed to establish 

that the Maoists imputed a particular political opinion to him. The BIA found no clear 

error in these determinations. 

Balami does not argue that the record before the IJ conclusively established that he 

was persecuted on account of a political opinion. Rather, he argues that, because he was 

pursuing asylum pro se, the IJ had an affirmative duty to develop a more complete record 

by asking more probing questions. He contends that such questioning “could have 

revealed” more about the Maoists’ motivations in pursuing him and, more particularly,

could have revealed that the Maoists imputed a political opinion to him. (Balami Br. at 

23.) 

However, in spite of Balami’s pro se status, he retained the burden of proving his 

eligibility for asylum. 8 C.F.R. § 208.13(a). While “an IJ has a duty to develop an 

applicant’s testimony,” Toure v. Att’y Gen., 443 F.3d 310, 325 (3d Cir. 2006), and the 

INA requires the immigration judge to “interrogate, examine and cross-examine the 

alien,” 8 U.S.C. § 1229a(b)(1), we conclude, upon reviewing the record, that the IJ 

appropriately developed Balami’s testimony here. Indeed, the IJ questioned Balami at 
10

length, attempting to clarify and draw out his testimony. Moreover, the IJ explicitly 

asked Balami why he believed the Maoists were interested in recruiting him, and Balami 

responded that he did not know. While Balami also testified that his grandfather was 

involved in the Congress Party and had been displaced as a result of problems with the 

Maoists, this testimony did not demand further development from the IJ because Balami 

never asserted that the Maoists who approached him knew his grandfather or imputed his 

grandfather’s political opinions to him. Under these circumstances, we conclude that the 

IJ adequately discharged any duty to inquire as to the Maoists’ motivations, and we reject 

Balami’s argument to the contrary. 

We thus affirm the determination that Balami has not established the requisite 

nexus between his alleged persecution and his actual or imputed political opinion. 

Accordingly, for this reason and because substantial evidence supports the conclusion 

that Balami failed to establish severe conduct that amounted to persecution, we will deny 

Balami’s petition insofar as it challenges the determination that he was not statutorily 

eligible for asylum based on past persecution. 

B.

As noted above, an applicant can also establish an entitlement to asylum if he can 

establish a well-founded fear of future persecution. See 8 U.S.C. §§ 1101(a)(42)(A), 

1158(b)(1)(a). To establish such a fear, the applicant must show that he has a subjective 

fear of future persecution and that the fear is objectively reasonable. Lukwago, 329 F.3d 

at 175 (citing Abdilie v. Ashcroft, 242 F.3d 477, 495-96 (3d Cir. 2001)). To meet the 
11

objective reasonableness prong, the applicant must show either that there is a reasonable 

possibility that he will be singled out individually for persecution, or that there is a 

“pattern or practice of persecution” against those sharing his political opinion in his home 

country. 8 C.F.R. § 208.13(b)(2)(iii).

Here, the IJ found that Balami’s fear of future persecution was not objectively 

reasonable because the evidence showed that the Maoists had not harmed his immediate 

family members who remained in Nepal and there was no evidence in the record that the 

Maoists are presently persecuting individuals in Nepal. See, e.g., Lie v. Ashcroft, 396 

F.3d 530, 537 (3d Cir. 2005) (“[W]hen family members remain in petitioner’s native 

country without meeting harm, and there is no individualized showing that petitioner 

would be singled out for persecution, the reasonableness of a petitioner’s well-founded 

fear of future persecution is diminished.” (citations omitted)). He therefore determined 

that Balami had not established a well-founded fear of future persecution. The BIA 

affirmed the IJ’s determination for the reasons provided by the IJ. 

Balami argues that substantial evidence does not support the IJ’s determination 

that his fear of being singled out for persecution was not objectively reasonable because 

there was evidence in the record that Maoists (1) are a violent group, (2) repeatedly 

targeted him, and (3) told his parents that they would take severe action against him if he 

returned to the country. In essence, Balami disagrees with the IJ’s interpretation and 

weighing of the evidence. However, contrary to Balami’s argument, the record simply 

does not compel the conclusion that Balami’s fear of persecution was objectively 
12

reasonable because it clearly demonstrates that Balami’s immediate family has avoided 

any harm since he left the country and there is no record evidence that the Maoists are 

currently persecuting members of the Nepali Congress Party.

2

 Accordingly, substantial 

evidence supports the conclusion that Balami had not established a well-founded fear of 

future persecution. We will therefore deny Balami’s petition insofar as it challenges the 

denial of his application for asylum based on fear of future persecution. 

C.

Having concluded that the record does not compel a conclusion that Balami has 

established extreme conduct amounting to past persecution, a nexus to a protected ground 

under the INA, or an objectively reasonable fear of future persecution, and that Balami 

has therefore failed to establish his eligibility for asylum, we also conclude that the BIA 

properly denied the withholding of removal under the INA. Indeed, “[i]f [an applicant] is 

unable to satisfy the standard for asylum, he necessarily fails to meet the standard for 

withholding of removal under [the INA].” Lukwago, 329 F.3d at 182. We will therefore 

deny Balami’s petition insofar as it challenges the denial of his application for 

withholding of removal under the INA. 

D.

Where an alien seeks protection under the CAT, he must show that it is “more 

 

2 Balami also challenges the IJ’s conclusion that he did not establish eligibility for 

asylum because he failed to demonstrate that the Nepalese government was unwilling or 

unable to control the Maoists. We need not reach this alternative basis for denying 

asylum, however, because we affirm the denial of asylum on other grounds. 
13

likely than not” that he “would be tortured if removed to the proposed country of 

removal.” Kibinda, 477 F.3d at 123 (quoting Sevoian v. Ashcroft, 290 F.3d 166, 174-75 

(3d Cir. 2002)); 8 C.F.R. § 1208.16(c)(2). “For an act to constitute torture . . . , it must 

be: (1) an act causing severe physical or mental pain or suffering; (2) intentionally 

inflicted; (3) for an illicit or proscribed purpose; (4) by or at the instigation of or with the 

consent or acquiescence of a public official who has custody or physical control of the 

victim; and (5) not arising from lawful sanctions.” Auguste v. Ridge, 395 F.3d 123, 151 

(3d Cir. 2005). The IJ found that Balami had not demonstrated that that it was more 

likely than not that he would suffer treatment that would meet the legal definition of 

torture if he were returned to Nepal, and the BIA found no clear error in that finding. 

Balami argues that the IJ’s finding was not supported by substantial evidence. He 

again emphasizes that Maoist individuals attacked him with a beer bottle and asserts that 

the Maoists have a history of engaging in torture that Nepalese security officials 

disregard. However, the evidence on which Balami relies simply does not compel a 

conclusion that it is more likely than not that Balami will be personally subjected to 

conduct causing severe pain or suffering with the acquiescence of government officials if 

he is returned to Nepal. Rather, there is substantial evidence to support the IJ’s 

conclusion that Balami has not met his burden of establishing a likelihood of being 

subjected to torture. We will therefore deny Balami’s petition insofar as it challenges the 

denial of his application for relief under the CAT.

IV. 
14

For the reasons set forth above, Balami has failed to show that the BIA erred in 

denying his requests for asylum, withholding of removal, and/or protection under the 

CAT. We will therefore deny Balami’s petition for review in its entirety.