UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ RAHUL GURU, Petitioner,

v. LORETTA E. LYNCH, United States Attorney General, Respondent. No. 15-9560 (Petition for Review)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before KELLY , LUCERO , and McHUGH , Circuit Judges.

________________ _________________ After examining the briefs and appellate record, this pane l has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Ci r. R. 34.1(G). The case is therefore ordered submitted without oral argument. Rahul Guru is a citizen of India who clai ms he will be persecuted as a religious follower of Maharaj Ashutosh if he returns to India. The immigration judge (IJ) denied his asylum applicati on, his request for withholding of removal, and his request for relief under the Conventi on Against Torture. The Boar d of Immigration Appeals

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### January 26, 2016
Elisabeth A. Shumaker Clerk of Court2 (BIA) affirmed the IJ’s ruling, thereby di smissing Mr. Guru’s appeal. Mr. Guru has now petitioned this court for review of th e BIA’s decision. Exercising jurisdiction under 8 U.S.C. § 1252(a) , we deny his petition.
I. BACKGROUND Mr. Guru unlawfully entered the United States on March 12, 2014, at a border checkpoint in Nogales, Arizona. On March 13, 2014, Mr. Guru was served with a Notice to Appear, which charged him as re movable under § 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182( a)(7)(A)(i)(I). Mr. Guru admitted the allegations in the Notice to Appear and conceded removability. On June 3, 2014, Mr. Guru applied fo r asylum, withholding of removal, and relief under the Convention Against Torture. In this original application, Mr. Guru claimed to have been harassed and threatened due to his political affiliation with the Shiv Sena party. After reta ining new counsel, Mr. Guru filed a supplemental asylum application on December 16, 2014, in which he alleged past harm and fear of future mistreatment because he is a follower of Maharaj Ashutos h, the spiritual leader of the group Divya Jyoti Jagrati Sansthan (DJJS). More specifically, Mr . Guru alleged he had been beaten and threaten ed by the controlling DJJS lead ers in the past and feared future mistreatment, b ecause he had threatened to expo se the leaders’ corruption and had accused them of mu rdering Ashutosh. In a hearing held on February 24, 2015, before the IJ, Mr. Guru testified through an interpreter. The IJ found Mr. Guru credible. Mr. Guru testified that he follows Maharaj Ashutosh, a spiritual l eader who taught, preached, and worked for3 the benefit of the poor, at a place of worshi p known as a dera in Nurmahal, India. Mr. Guru further explained he is Hindu, but Ashutosh was not, and DJJS is a nondenominational group that accepts people of different religions. In November 2013, Mr. Guru heard a ru mor that Ashutosh had been murdered but the DJJS leaders who managed the dera were hiding Ashutosh’s body. Mr. Guru testified the DJJS leaders ha d asserted Ashutosh was “in meditation” so they could claim he was still alive and take control of his extensiv e estate. Because Mr. Guru “accept[s] Ashutosh Maharaj as [his] god, and [he] wanted to find out if something bad was happening to [Ashutosh],” Mr. Guru went to the dera to confront the DJJS leaders. According to Mr. Guru, the DJJS lead ers responded by threatening to kill him and telling him to stop spreading ru mors that Ashutosh was sick or dead. Mr. Guru then initiated his own investig ation by using a friend to gain access to the local land ownership records, which showed the DJJS leaders had “properties worth hundreds of thousands” and “political connections all the way to the top.” When Mr. Guru returned to the dera and demanded to see Ashutosh, the DJJS leaders refused. Mr. Guru responded by telling the leaders he had “p roof against them” which he would publish in the newspaper. When Mr. Guru showed the DJJS leaders the paperwork, they shouted and began chas ing him. Mr. Guru ran away and hid in a field for five to six hours and then returned home. On December 20, 2013, about ten men ar rived at Mr. Guru’s home, two of whom he recognized from the previous encoun ter at the dera. Mr. Guru testified the men entered his home and “started punching and kicking” him for about “two, two4 and a half minutes.” When the men dema nded the “proof” Mr. Guru had against them, Mr. Guru surrendered the documents. Mr. Guru’s neighbors heard his screams and began to gather. The men then threaten ed to kill Mr. Guru if he did not stop following Ashutosh and left Mr . Guru’s house. Mr. Guru testified he did not report the incident to the police be cause his father had told him the DJJS leaders were linked politically to the police. As a result of the atta ck, Mr. Guru suffered inte rnal injuries, along with injuries to his head, feet, hands and le gs. Mr. Guru’s neighb ors took him to the hospital where he stayed overnight. Afte r returning from the hospital, Mr. Guru stayed at home for nine or ten days and th en spent about two months “in hiding” in Delhi before leaving India. In addition to his testim ony, Mr. Guru submitted seve ral documents to the IJ, including a birth certificate, passport, iden tity cards, school cer tificates, two letters from his father stating Mr. Guru was sent ab road based on fear for his life, a medical report confirming Mr. Guru was hospitalized af ter the attack at hi s home but released the next day, and a letter from a Shiv Sena leader conf irming his membership in the party. Mr. Guru also submitted various articles discussing Ashutosh and his followers. In relevant part, th e articles explain that, after Mr. Guru left India in 2013, litigation was filed to require the release and cremation of Ashutosh’s body, and an Indian court ordered the cremation. After the hearing, the IJ issued an oral decision and order, accepting Mr. Guru’s testimony as credible but nonethel ess finding Mr. Guru failed to meet his5 burden to establish eligibility for asylum, withholding of rem oval, or protection under the Convention Against Torture. The IJ first rejected Mr. Gu ru’s application to the extent it was based on hi s membership in the Shiv Se na political party because Mr. Guru indicated he was never harmed as a result of his political affiliation. The IJ also concluded Mr. Guru failed to establish he was targeted as a re sult of his religion. Rather, the IJ found Mr. Guru was harmed due to a private dispute caused by his investigation of and confrontation with th e DJJS leaders. The IJ therefore denied Mr. Guru’s application. Mr. Guru timely appealed th e IJ’s decision to the BIA. On July 29, 2015, in a single-member decision, the BIA dismisse d Mr. Guru’s appeal . Because Mr. Guru “ha[d] not shown that the mistreatment he suffered in India constitutes persecution under the [INA],” the BIA rejected Mr . Guru’s claims based on religion and membership in a particular social group. The BIA also re jected Mr. Guru ’s assertion of a well-founded fear of persecution. And since Mr. Guru failed to satisfy the lower standard required for asylum, the BIA also denied Mr. Guru’s request for withholding of removal. Finally, the BIA declined to grant protection under the Convention Against Torture because the evidence did not demonstrate Mr. Guru would more likely than not be tortured if he returned to India. Mr. Guru timely petitioned this cour t for review of the BIA’s order.
II. DISCUSSION Where, as here, a single member of the BIA issues a brief order affirming the IJ’s decision, we review the BIA’s order as the final agency determination and limit6 our review to the grounds speci fically relied upon by the BIA. Uanreroro v. Gonzales , 443 F.3d 1197, 1203–04 (10th Cir. 2006). “However, when seeking to understand the grounds provi ded by the BIA, we are not precluded from consulting the IJ’s more complete explan ation of those same grounds.” Id. at 1204. We review the BIA’s legal conclusions de novo and its factual dete rminations for substantial evidence. Id. ; Razkane v. Holder , 562 F.3d 1283, 1287 (10th Cir. 2009). Here, Mr. Guru challenges the BIA’s determination th at he did not establish persecution as required to support his asylum application. “In this circuit, the ultimate determination whether an alien has demonstrated persecution is a question of fact, even if the underlying factual circumstances are not in dispute and the only issue is whether those circumstances qualify as persecution.” Hayrapetyan v. Mukasey , 534 F.3d 1330, 1335 (10th Cir. 2008) (internal quotation ma rks omitted). “The BIA’s determination [on the issue of persecution] must be upheld if it is ‘supported by reason able, substantial, and probative evidence on the record considered as a whole.’” Id. (quoting INS v. Elias– Zacarias, 502 U.S. 478, 481 (1992)). “Thus, we ma y reverse the BIA’s decision ‘only if the evidence presented by [Mr. Gu ru] was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed.’” Id. (quoting Elias–Zacarias, 502 U.S. at 481). A. Application for Asylum Turning first to Mr. Guru’s applicati on for asylum, Mr. Guru bore the burden of proving eligibility for asylum. 8 U.S.C. § 1158(b)(1)(B)(i). To qualify for asylum, Mr. Guru must first prove he is a refugee, which requir es proof he is “unable or7 unwilling to return to” India “because of persecution or a we ll-founded fear of persecution on account of race, religion, na tionality, membership in a particular social group, or political opini on.” 8 U.S.C. § 1101(a)(42)(A); Chaib v. Ashcroft , 397 F.3d 1273, 1277 (10th Cir. 2005). Mr. Guru based his asylum applica tion on alleged persecution resulting from his religion and membership in a particular so cial group. For both of these categories, Mr. Guru was first required to prove he ha d suffered persecution. “Persecution is the infliction of suffering or harm upon those who differ (in race, religion, or political opinion) in a way regarded as offensive and mu st entail more than ju st restrictions or threats to life and liberty.” Ritonga v. Holder , 633 F.3d 971, 975 (10th Cir. 2011) (internal quotation marks omitted). There ar e three types of pers ecution that satisfy the statutory requirement: (1) “a well-founded fear of futu re persecution,” (2) “past persecution sufficient to give rise to a presumption of future persecution,” or (3) “past persecution so severe that it supports an unwillingness on the applicant’s part to return to that country.” Chaib , 397 F.3d at 1277. The BIA concluded Guru had not experienced past persec ution and did not have a we ll-founded fear of future persecution. After reviewing the record in this case, we find substantial evidence supporting the BIA’s conclusions. 1. Past Persecution To be eligible for asylum based on past persecution, “an applicant must show (1) an incident, or incidents, that rise to the level of persecu tion; (2) that is on account of one of the statutorily-protect ed grounds; and (3) is committed by the8 government or forces the government is either unabl e or unwilling to control.” Niang v. Gonzales , 422 F.3d 1187, 1194– 95 (10th Cir. 2005). Here, Mr. Guru testified he was threatened twice af ter confronting a group of DJJS leaders. Because he th reatened to expose the leaders’ allege d corruption, Mr. Guru was beaten on one occasion for “[m]aybe two, two and a half minutes.” And as a result of the beating, Mr. Guru suffered injuries that required overnight hospitalization. Even accepting Mr. Guru’s testimony as credible, the BIA concluded Mr. Guru’s experience did not rise to the level of persecution. The BIA’s decision is consistent with similar determinations upheld by this court despite evidence of circumstances simi lar to or more severe than those alleged by Mr. Guru. See , e.g ., Ritonga , 633 F.3d at 976 (affirm ing BIA’s finding of no persecution where Christian was the target of taunts and threats on several occasions and suffered head injuries when Muslims broke into her home); Sidabutar v. Gonzales , 503 F.3d 1116, 1124 ( 10th Cir. 2007) (affirm ing BIA’s finding of no persecution where Christian was repeatedly beaten and robbed at the hands of Muslim classmates); Kapcia v. INS , 944 F.2d 702, 704–05, 708 (10th Cir. 1991) (affirming BIA’s finding of no persecution where petitioner was detained twice for two-day periods duri ng which he was interrogated an d beaten based on his political affiliation, was assigned poor work tasks a nd denied bonuses, was conscripted into the army where he experienced constant ha rassment, and was fired from his job). As such, we conclude the BIA’s finding wa s supported by substantial evidence.9 2. Well-Founded Fear of Future Persecution Having failed to prove past persecution, Mr. Guru could still qualify as a refugee under the INA if he established a we ll-founded fear of future persecution, which requires “both a genuine , subjective fear of persecuti on, and an objective basis by credible, direct, and specific evidence in the record, of facts that would support a reasonable fear of persecution.” Karki v. Holder , 715 F.3d 792, 801 (10th Cir. 2013). The BIA determined Mr. Guru failed to meet this stan dard for several reasons. The BIA first noted that the relevant events supporting Mr. Guru’s asylum application took place in 2013, and Mr. Guru left India shortly thereafter. Mr. Guru submitted articles which conf irm that, after his departure from the country, litigation was commenced to allow the release and cr emation of Ashutosh’s body, and that an Indian court ordered the cremation. The BIA thus concluded that Mr. Guru failed to establish that the Indian government is unable or unwilling to control the DJJS leaders. In addition, the BIA noted that some of Mr. Guru ’s family members, who are also followers of Ashutosh, remain in I ndian unharmed and that he has not provided any evidence demonstrating the DJJS leaders are interested in harming him today. The BIA’s finding that Mr. Guru does not suffer from a well-founded fear of persecution is supported by substan tial evidence in the record.
B. Withholding of Removal Mr. Guru also argues the BIA erred in denying his request for withholding of removal. Under the INA, the Attorney Gene ral may prohibit removal if she determines “the alien’s life or freedom would be threat ened” in the country to which he would be10 removed “because of the alien’s race, religi on, nationality, membersh ip in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). “The burden of proof for withholding of removal is higher than for asylum.” Rodas-Orellana v. Holder , 780 F.3d 982, 986 (10th Cir. 2015). Under this burde n, the applicant must prove a “clear probability of persecution on a ccount of a protected ground.” Id. at 987 (internal quotation marks omitted). “Failure to meet the burden of proof for an asylum claim necessarily forecloses meeting th e burden for a withholding claim.” Id. Having failed to establish eligibility for asylum, Mr. Guru has also necessarily failed to satisfy his burden of proof for withholding of removal. We ther efore affirm the BIA’s denial of Mr. Guru’s request for withholding of removal. C. Convention Against Torture Mr. Guru has likewise failed to prove his eligibility for relief under the Convention Against Torture. Under the Co nvention, Mr. Guru had the burden to prove “it is more likely than not that he . . . would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). The Convention defines

torture as any act by which severe pain or suffe ring, whether physical or mental, is intentionally inflicted on a person fo r such purposes as obtaining from him or her or a third person informat ion or a confessi on, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or in timidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity

. Id. § 1208.18(a)(1) (emphasis added).11 In this case, Mr. Guru has not identified a public offici al involved with his past mistreatment. The DJJS followe rs who threatened and beat Mr. Guru were religious leaders, not public officials. Although thes e men allegedly had pol itical connections and Mr. Guru’s father believed they had political ties with the police, Mr. Guru did not present evidence showing any p ublic official ratified or knew about the DJJS leaders’ actions. Thus, Mr. Guru failed to prove he had been or would in the future be mistreated at the instigation of or with the consent or acquiescence of a public official. Accordingly, we uphold the BIA’s denial of Mr. Guru’s request for protection un der the Convention.
III. CONCLUSION For these reasons, we DENY Mr. Guru’s petition for re view of the BIA order. Entered for the Court

Carolyn B. McHugh Circuit Judge