NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 19-2331

ASHOK GURUNG

Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA

Respondent

______________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(No.: A206-023-467)

Immigration Judge: R.K. Malloy

Submitted under Third Circuit LAR 34.1(a)

on February 4, 2020

Before: SHWARTZ, SCIRICA and RENDELL, Circuit Judges
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_________

O P I N I O N*

_________

RENDELL, Circuit Judge:

Petitioner Ashok Gurung, a native and citizen of Nepal, seeks review of an order 

of the Board of Immigration Appeals (BIA) denying his applications for asylum, 

withholding of removal, and protection under the Convention Against Torture (CAT). 

For the following reasons, we will deny the petition for review.

I. FACTUAL BACKGROUND

Gurung entered the United States unlawfully in 2013 and the Department of 

Homeland Security (DHS) commenced removal proceedings against him under 8 U.S.C. 

§ 1182(a)(7)(A)(i)(I). Gurung conceded removability and applied for asylum, 

withholding of removal, and relief under CAT. In support of his applications, Gurung 

claimed a fear of returning to Nepal because he is at risk of being harmed by Nepali

Maoists. 

At his removal hearing before the Immigration Judge (IJ), Gurung testified in 

support of his applications for relief as follows: Gurung worked as a volunteer for the 

Nepali Congress Party, which included campaigning and distributing informational 

pamphlets. As a result, he became the target of a rival political party, the Maoists. 

Maoist members sent him threatening letters, which demanded that he join the Maoists or 

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

constitute binding precedent.
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suffer harm. On one occasion, Maoist members violently attacked him in his home. To 

avoid such threats and violence, Gurung fled to Pokhara, Nepal to stay with family, 

returning to his home village after six months. He left again for Pokhara after two or 

three months because Maoists returned to his home and threatened his parents. Gurung

ultimately fled Nepal after a few more months in Pokhara, when he saw Maoists and once

again felt unsafe. He arrived in the United States in 2013.

To support his applications, Gurung submitted, among other things, an affidavit

recounting the Maoist attack, threatening letters allegedly sent from the Maoist party, and 

medical records related to the attack. The IJ also heard testimony from an expert, Dr. 

Paran Niraula, who has a background in policy, education management, and leadership. 

Dr. Niraula testified that the political situation in Nepal is unstable and that Maoists in the 

country have targeted low-level grassroots party workers. 

II. DECISIONS FROM THE IJ AND BIA

The IJ issued a decision and order denying Gurung’s applications, providing 

several reasons for the denial. First, the IJ concluded that Gurung’s testimony was not 

credible. The IJ based this adverse credibility determination on several discrepancies

between Gurung’s testimony and other evidence, including his affidavit and medical 

records. The IJ also gave the supporting documents and expert testimony little to no

evidentiary weight. Alternatively, even assuming Gurung’s testimony was credible, the 

IJ concluded that Gurung still would not be entitled to relief because Gurung could 

reasonably be expected relocate to a different part of Nepal. The IJ noted that Gurung 

had already relocated to Pokhara temporarily and lived with relatives without 
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experiencing any threats or harm. Thus, the IJ ruled that Gurung was ineligible for 

asylum relief because he had not established a “well-founded fear of persecution.” 8 

U.S.C. § 1101(a)(42)(A). 

The IJ also denied Gurung’s applications for withholding of removal and CAT 

relief. The IJ concluded that because Gurung failed to establish eligibility under asylum, 

he necessarily failed to establish eligibility for withholding of removal, which has a 

higher burden of proof.1 The IJ also concluded that Gurung failed to establish eligibility 

for CAT relief because he had not established that he would more likely than not

experience torture if he returned to Nepal, nor had he shown that the Nepali government 

would be willfully blind to, and therefore acquiescent in, any future torture inflicted on 

Gurung by the Maoist party.

The BIA issued a decision and order which affirmed the IJ’s ruling and dismissed 

Gurung’s appeal. Specifically, the BIA (1) ruled that the IJ’s adverse credibility finding 

was not clearly erroneous, (2) affirmed the IJ’s determination that Gurung could avoid 

future persecution by relocating within Nepal,

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and (3) concluded that the IJ did not err in 

1

In order to qualify for withholding of removal, a petitioner must establish that it is 

“more likely than not” that he would suffer persecution. Valdiviezo-Galdamez v. Att’y

Gen. of U.S., 663 F.3d 582, 591 (3d Cir. 2011). 

2 The BIA noted that Gurung waived the relocation issue because, while he challenged

the IJ’s relocation determination in his Notice of Appeal, his brief did not address this 

issue or explain why the IJ’s determination was erroneous. We have held, however, that 

“regulation § 1003.3(c) is devoid of any instruction regarding what the brief must

contain.” Hoxha v. Holder, 559 F.3d 157, 163 (3d Cir. 2009). Indeed, “[t]here is nothing

that demands that the brief reiterate the issues initially identified in the notice of appeal in

order to preserve a right to judicial review if the appellant is unsuccessful before the
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determining that Gurung failed to establish that he would more likely than not be tortured 

if he returned to Nepal. Gurung then petitioned for review. 

III. JURISDICTION AND STANDARD OF REVIEW

The BIA had jurisdiction under 8 C.F.R. § 1003.1(b)(3). We have jurisdiction 

under 8 U.S.C. § 1252(a). We review the BIA’s factual findings, including adverse 

credibility determinations, for substantial evidence. Butt v. Gonzales, 429 F.3d 430, 433 

(3d Cir. 2005). Accordingly, we will uphold factual conclusions “unless any reasonable 

adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). 

We review the IJ’s findings under the same standard to the extent “the BIA directs us to 

the [IJ’s] opinion and decision.” Yusupov v. Att’y Gen., 650 F.3d 968, 977 (3d Cir. 2011) 

(citation omitted). The IJ may assess an applicant’s credibility based on “the totality of 

circumstances, and all relevant factors,” including “any inaccuracies or falsehoods in [the 

applicant’s written and oral] statements, without regard to whether an inconsistency, 

inaccuracy, or falsehood goes to the heart of the applicant’s claim.” 8 U.S.C. § 

1229a(c)(4)(C). 

Gurung challenges the denial of his applications for asylum, withholding of 

removal, and protection under CAT. We will address each claim in turn. 

BIA.” Id. We will therefore consider this issue in our discussion below. 
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IV. ANALYSIS

A. Asylum 

To be eligible for asylum relief, a petitioner must establish that he has a “wellfounded 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). Persecution is 

defined as “threats to life, confinement, torture, and economic restrictions so severe that 

they constitute a threat to life or freedom.” Camara v. Att’y Gen., 580 F.3d 196, 202 (3d 

Cir. 2009) (citation omitted). An applicant who has proved past persecution is entitled to 

a rebuttable presumption that he has a well-founded fear of persecution; however relief 

will not be granted if the government is able to rebut that presumption by showing that 

“[t]he applicant could avoid future persecution by relocating to another part of the 

applicant’s country of nationality.” 8 C.F.R. § 1208.13(b)(1)(i)(B). 

Gurung argues that the IJ’s adverse credibility determination is not supported by 

substantial evidence and the record shows that he will be subjected to country-wide 

persecution if he were to return to Nepal. The IJ noted several discrepancies between 

Gurung’s testimony and other supporting evidence. These discrepancies concerned: the 

number of Maoists who attacked him, whether his attackers carried a knife, whether his 

parents witnessed the attack, the timing of the attack, and the reason why the police 

denied him aid. Citing to these inconsistencies, the IJ ultimately found that Gurung’s 

testimony was not credible based on the totality of the evidence. The IJ also determined 

that the threatening letters Gurung allegedly received from the Maoists were fabricated to 
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support his application.

3

 The IJ also gave Dr. Niraula’s testimony limited weight because 

he “does not have special training in Nepalese politics.” IJ Op. 5. 

Based on these inconsistencies and lack of supporting evidence, the IJ concluded 

that Gurung failed to demonstrate the well-founded fear of persecution required for an 

asylum claim. Given our highly deferential standard of review, we cannot conclude that 

either the IJ’s credibility determination, or the IJ’s ultimate determination that Gurung 

failed to meet his burden of proof, lacks support in the record.

Alternatively, the IJ ruled that, even assuming Gurung had experienced past 

persecution, DHS successfully rebutted the presumption that Gurung had a well-founded 

fear of persecution. The IJ ruled that Gurung could relocate within Nepal, which he did 

prior to his arrival in the United States. The IJ pointed out that Gurung did not 

experience any threats or harm while living with his family in Pokhara. The IJ also noted 

that the Maoists who attacked him did not appear to be working in concert with a larger 

party structure, and accordingly, it would be reasonable for him to relocate safely within 

Nepal. This evidence—along with evidence that the attack on Gurung was “highly 

localized and rare”—supports the IJ’s conclusion that Gurung could reasonably relocate 

within Nepal. Id. 

Accordingly, we find that Gurung’s challenge to the BIA’s denial of his asylum 

claim lacks merit. 

3 The IJ noted that the letters: (1) suspiciously stated the exact date and time of the Maoist

attack; (2) included specific information that the Maoists would unlikely be aware of; and 

(3) were allegedly written by the main Maoist group in Nepal, which would be unlikely 

to carry out attacks against individuals.
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B. Withholding of Removal

To qualify for withholding of removal, a petitioner must establish a “clear 

probability of persecution,” meaning that it is “more likely than not” that he would suffer 

persecution. Valdiviezo-Galdamez, 663 F.3d at 591. Because Gurung cannot meet the 

well-founded fear of persecution standard for asylum, it necessarily follows that he 

cannot meet the more stringent standard for withholding of removal. See Chen v.

Ashcroft, 376 F.3d 215, 223 (3d Cir. 2004) (“An alien who fails to establish that he or she 

has a well-founded fear of persecution, so as to be eligible for asylum, necessarily will 

fail to establish the right to withholding of removal.”).

C. CAT Protection

To obtain CAT relief, Gurung must show that it is “more likely than not” that he 

would be tortured if removed to Nepal. Kibinda v. Att’y Gen., 477 F.3d 113, 123 (3d 

Cir. 2007). Under CAT, torture “is an extreme form of cruel and inhuman treatment” that 

is inflicted by or “with the consent or acquiescence of a public official.” 8 C.F.R. § 

208.18(a)(1), (2). 

The IJ determined that Gurung did not suffer past torture within the meaning of 

the regulations. The IJ also ruled that Gurung could escape future torture by relocating 

within Nepal and noted that he had “successfully evaded his would-be torturers for over a 

year” while living in Nepal. IJ. Op. at 15. Furthermore, the IJ noted that Gurung 

presented no evidence that the Nepali government acquiesces in Maoist torture of its 

civilians. Thus, we conclude that the IJ’s determination is supported by substantial 

evidence and will uphold the BIA’s denial of Gurung’s request for relief under CAT.
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V. CONCLUSION

For the foregoing reasons, we will deny Gurung’s petition for review.