NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

________________ No. 1 3

- 1593

________________ SUSHILA GURUNG, Petitioner

v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent

________________ On Petition for Review of a Decision and Order of the Board of Immigration Appeals ( BIA No. A

- 089

- 905

- 850 ) Hon orable Eugene Pugliese, Immigration Judge

________________ Submitted under Third Circuit LAR 34.1(a) December 20 , 2013
BEFORE: JORDAN, VANASKIE, and GREENBERG , Circui t Judges ( Opinion Filed: January 15, 2014 )

______________ OPINION OF THE COURT

______________ GREENBERG, Circuit Judge

. This matter comes on before this Court on Sushila Gurung’s petition for review of a decision and order of removal issued by the B oard of Immigration Appeals ( the “BIA”) on February 5, 2013. The BIA dismissed Gurung’s appeal from an order by an2 immigration judge (“IJ”) of May 11, 2011, denying her application for asylum, withholding of removal , and protection under the Convention Ag ainst Torture (the “CAT”) . The BIA had jurisdiction under 8 C.F.R. § 1003.1(b)(3) and we have jurisdiction under section 242 of the Immigration and Nationa lity Act, 8 U.S.C. § 1252.
Ve nue is proper in this Court because the IJ completed the proceedings i n this Circuit in Newark, New Jersey

. See 8 U.S.C. § 12 52 (b)(2). Gurung, a citizen of Ne pal, a country with a population of approximately 29 million , entered this country on August 15, 2007, as a nonimmigrant student to attend college in West Virginia. After two months , she abandoned that pursuit and moved to New York, where on August 14, 2008, she filed her application for asylum. She sought asylum on the basis of her alleged persecution by Maoist elements in Nepal that had been engaging in an insurgen cy against the government. At the hearing before the IJ, Gurung testified that , following in her father’s footsteps, she joined the anti

- Maoist Ra s htriya Prajatan t ra Party and engaged in anti

- Maoist activities . These activities included events

t raceable to July 22, 2002, when her father saw Maoists seeking to obtain recruits

. Gurung’s father report ed his observation s to the army , which thereafter confronted the Maoists. Then , on April 5, 2003, apparently in revenge for his report , Maoists kidnapped her father and , in doing so , beat Gurung and her mother after they attempted to interfere with the abduction . Gurung reported these events to the police , and the army recovered her father’s body ten days later

. The following month Gurung learned of the locat ion of a Maoist encampment and gave the police this information enabling them to captur e three of the Maoists

. T he3 Maoists learned that she had informed on them and sent her a letter demanding payment of 175,000 r up ee s . She did not make this payment and, instead, left the area in which she had been residing and on May 26, 2003, went to Kathmandu, Nepal’s capital. But , in making that move , she did not leave the Maoists entirely behind , for , after she arriv ed in Kathmandu the y made threatening phone calls t o her . Eventually she came to this country where, as we have indicated, she sought asylum and relief from removal. Yet the Maoists persisted. E ven after she left Nepal , the y delivered a letter to her brother d emanding money from her

. Following the h earin g the IJ denied relief. In his opinion the IJ questioned Gurung’s veracity and indicated that the threats she received and her father’s abduction did not rise to the level of persecution. The IJ also noted that her evidence had not been corroborated

. 1

Gurung appealed to the BIA , which dismissed the appeal on the merits , l argely deferr ing to the IJ’s findin gs. It held that even though Gurung claimed to have been beaten by Maoists , there was no evidence that she suffered serious injuries in this assault. It also held that she did not prove that she would ha ve a well

- founded fear of persecution Significantly , the IJ found that the government had demonstrated that , notwithstanding Gurung’s claim that the Maoists had persecuted her, she was not entitled to relief because conditions in Nepal had changed fundamentally by reason of the government and the Maoists reach ing a peace agreement in 2006. Moreover, the IJ indicated that Gurung could relocate within Nepal to avoid Maoist persecution.

1 We are adjudicating this case on the assumption that our recitation of the material facts is accurate.4 by the Maoist s if she returned to Nepal . Thus, she was not eligible for asylum or relief from removal an d it dismissed her appeal. S he then timely filed th e petition for review leading to these proceedings

. Inasmuch as the BIA substantially relied on the IJ’s conclu sions in addressing Gurung’s appeal, we review t h e decisions of both the IJ and the BIA

. See Xie v. Ashcroft , 359 F.3d 239, 242 (3d Cir. 2004). The ir findi ngs of fact are conclusi ve unless any reasonable adjudicato r would be compelled to rea ch a contrary conclusion. Id. at 243. In order to qualify for asylum, an applicant, such as Gurung, must est ablish that she is a “refugee” as defined in 8 U.S.C. § 1101(a)(42). See 8 U.S.C. § 1158(b)(1); Shardar v. Ashcroft , 382 F.3d 318, 322

- 23 (3d Cir. 2004). A “ refugee” is a an individual who is “ unable or unwilling to return to [ her ] home 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. ” Id. (internal quotation marks omitted). The applicant bears the burden of establishing her eligibility for asylum and can do so by presenting proof that she has suffered past persecution or has a well

- founded fear of future persecution. See Abdille v. Ashcroft , 242 F.3d 477, 482 (3d Cir. 2001) (citing 8
C.F.R. § 208.13(a)). To establish that she has suffered from past persecution, the applicant must demonstr ate that t he government or forces that the government is either unable or unwilling to control e ngaged in the acts that she asse r ts constituted persecution

. Abdulrah m a n v. Ashcroft , 330 F.3d 587, 59 1

- 9 2 & n.3 (3d Cir. 2003).5 But a n applicant making a showing that she has suffered from past persecution does not necessarily make a showing sufficient for relief from removal because th e past persecution only gives rise to a presumption that she has a well

- founded fear of future persecution. Id. at 592 (citing 8 C.F.R. §§ 1 208.13 (b)(1)(i) & (ii)). However, the government can rebut this presumption by demonstrating that there has been a fundamental change in circumstances in t he applicant’s country of nationality to the end that s he no longer has a well

- founded fear of future persecution in th at country. 8 C.F.R. § 1208.13(b)(1)(i)(A). The government also can rebut a presumption that the applicant faces future persecution by showing that s he reasonabl y could relocate within th e country from which she seeks asylum to avoid harm. Id. § 1208.13(b)(1) ; Abdulrah man , 330 F.3d at 592 n.3. Thus, asylum is a forward

- looking preventive remedy intended to preclude future persecution and is not granted simply because the applicant seeking asylum has suffered from persecution in the past

. When an alien seeks asylum in removal proceedings , her application is deeme d to include a request for withholding of removal. 8 C.F.R § 1208.3(b). An alien seeking withholding of removal must show a “clear probability” that she will face persecution in the country to which she will be removed. INS v. Stevic , 467 U.S. 407, 412 , 104 S.Ct.
2489 , 2492 (1984). If a n alien cannot establish her eligibility for asylum she necessarily will be unable to demonstrate her eligibility for withholding of removal. Zubeda v. Ashcroft , 333 F.3d 46 3 , 469

- 70 (3d Cir. 2003).
To qualify for prote ction under the CAT, an a lien must show that it is more likely than not that , if removed , she would be tortured by, or with the acquiescence o f, the6 government of the country to which it is proposed that she be removed

. 8 C.F.R. § 1208.16(c)(2); Silva

- Ren gifo v. Att’y Gen. , 473 F.3d 58, 70 (3d Cir. 2007). In this case we see no possible basis on which to conclude that Gurung qualifies for relief under the CAT and thus we do not discuss that possibility any further. The parties address at length C a mara v. Att ’ y Gen

. , 580 F.3d 196 (3d Cir. 2009), a case in which a n applicant for asylum who had witnessed the kidnapping of a family member asserted that she had been persecuted beca use of that experience . This focus is understandable because the facts in Camar a are in some respects similar to those here. We, however, take a different approach , for even if we regard as persecution Gurung’s experience with respect to her father’s kidnapping and death as well as the other events that she described , she is not ent itled to relief in the light of a chang e in the political situation in Nepal. In this regard, as the IJ noted, the Nepal government and the Maoists have entered into a peace agreement formally ending the Maoist insurgency. Though not all Maoists have bee n appeased by this agree ment , surely the agreement is highly significant as it has lessened the likelihood that Gurung will be persecuted if she returns to Nepal. We recognize that notwithstanding the peace agreement, some Maoist elements have continued t heir insurgent activity , but th at activity has been concentrated in rural

areas . Thus , the significance of the activity is limit ed with respect to Gurung because before she left Nepal, she was residing in Kathmandu, the capital. In the se circumstance s , w e see no reason to doubt that Gurung can return to Kathmandu without fear of Maoist persecution

.7 In reaching our conclusion we note that this case is somewhat like Nbaye v. Att ’ y Gen

. , 665 F.3d 57 (3d Cir. 2011). In Nbaye , the petitioner claimed that he feared “returning to Guinea because he believes that if he returns he will be persecuted on account of his political opinion attributable to his membership in the Rally of Guinea n People Party (‘RPG’).” Id

. at 58. Bu t during the course of our considerati on of that case it came to our attention that there h ad been a change of government in Guinea and the RPG had come to power . Accordingly, we remanded the case to the BIA to consider the possible effect of th is development . Here, as in Nbaye , there has be en a significant political change in the pet itioner’s country of origin which diminishes the p r o ba bility that
if the petitioner , Gurung, returns to that country she will be persecuted. Gurung’s long absence from Nepal is another factor that makes it unl ikely that she would be persecuted if she return ed t o that country. After all , we see nothing in the record to support a belief that Gurung is a person of any prominence in Nepal and we therefore believe that if she return s to Nepal, a country of nearly 2 9 million people, her

return would go unnoticed

. Furthermore , the Maoists seem to have little or no interest in her family as it has been operat ing a business in Kathmandu notwithstanding their
presence
. The petition for review of the d ecision and o rde r of the BIA dated February 5,
201 3 , will be denied.