* After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument. This order and judgment is

not binding precedent, except under the doctrines of law of the case, res judicata,

and collateral estoppel. It may be cited, however, for its persuasive value

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED

United States Court of Appeals

Tenth Circuit

August 4, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

SUNITA LAMA-TAMANG,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney

General of the United States,

Respondent. 

No. 09-9559

(Petition for Review)

ORDER AND JUDGMENT*

Before TACHA, HOLLOWAY, and ANDERSON, Circuit Judges.

Petitioner Sunita Lama-Tamang seeks review of a Board of Immigration

Appeals (BIA) order affirming an immigration judge’s (IJ) denial of her

applications for asylum, restriction on removal, and relief under the United

Nations Convention Against Torture (CAT). Ms. Lama-Tamang concedes that her

request for asylum was untimely, but argues that she should have benefitted from
-2-

the statutory exceptions to the standard one-year filing requirement. See 8 U.S.C.

§ 1158(a)(2)(D). We have no jurisdiction over that claim. We similarly lack

jurisdiction over Ms. Lama-Tamang’s CAT claim, and we therefore dismiss those

portions of the petition. Finally, Ms. Lama-Tamang argues that the BIA and the

IJ misapplied the nexus requirement to her claim for restriction on removal. 

Because Ms. Lama-Tamang, however, failed to make the initial showing that she

has suffered persecution, it is unnecessary for us to reach the nexus issue. We

therefore exercise our jurisdiction under 8 U.S.C. § 1252(a) and deny the balance

of the petition.

Ms. Lama-Tamang is a native and citizen of Nepal. She arrived in the

United States on a non-immigrant visa on April 27, 2004. She overstayed her

visa, conceded removability, and eventually applied for asylum, restriction on

removal, and CAT protection. The IJ’s denial of her applications was affirmed by

the BIA. This appeal followed.

Where, as here, “a single member of the BIA issues a brief order affirming

an IJ’s decision, this court reviews both the decision of the BIA and any parts of

the IJ’s decision relied on by the BIA in reaching its conclusion.” Razkane v.

Holder, 562 F.3d 1283, 1287 (10th Cir. 2009). We review the BIA’s legal

determinations de novo and its findings of fact under a substantial-evidence

standard. Id. The latter standard is very deferential: “factual findings are

conclusive unless any reasonable adjudicator would be compelled to conclude to
-3-

the contrary.” Witjaksono v. Holder, 573 F.3d 968, 977 (10th Cir. 2009) (internal

quotation omitted). And this standard applies not only to historical facts, but to

ultimate factual determinations, such as the existence of persecution, upon which

an alien’s qualification for relief may directly rest. Id.

Title 8, Section 1158(a)(3) of the United States Code provides that no court

shall have jurisdiction to review the agency’s finding that an asylum application

was untimely under 8 U.S.C. § 1158(a)(2)(B), or a finding that neither changed

nor extraordinary circumstances excuse untimeliness under 8 U.S.C.

§ 1158(a)(2)(D). 8 U.S.C. § 1158(a)(3). Notwithstanding that provision,

however, this Court retains jurisdiction to review “constitutional claims [and]

questions of law.” Id. § 1252(a)(2)(D). Here, Ms. Lama-Tamang challenges the

IJ’s factual determination that she demonstrated no changed or extraordinary

circumstances materially affecting her eligibility for asylum, a finding we may

not review. See Diallo v. Gonzales, 447 F.3d 1274, 1281 (10th Cir. 2006) (noting

that “challenges directed solely at the agency’s discretionary and factual

determinations [are] outside the scope of judicial review”). 

Similarly, in her appeal to the BIA, Ms. Lama-Tamang did not make any

argument regarding the denial of her CAT claim. She merely mentioned the word

“torture” among her statement of issues, which is insufficient to exhaust her

administrative remedies on that claim. We therefore lack jurisdiction to review

the CAT claim. See Sidabutar v. Gonzales, 503 F.3d 1116, 1121-22 (10th Cir.
1 The IJ stated that he was “unable to make an explicit credibility finding.”

Admin. R. at 35. We therefore accept Ms. Lama-Tamang’s testimony as true. 

Witjaksono v. Holder, 573 F.3d 968, 977 n.9 (10th Cir. 2009).

-4-

2007) (explaining that issue exhaustion is jurisdictional, and to exhaust, an alien

must present an issue to the BIA or the BIA must actually decide the issue). We

thus proceed to review Ms. Lama-Tamang’s challenge to the agency’s denial of

her application for restriction on removal.

Ms. Lama-Tamang’s application for restriction on removal is based on her

claim that she suffered past persecution in Nepal at the hands of anti-government

Maoists who continually approached her, demanding money for their political

purposes and threatening her with various evils if she did not pay up. She was

forced to move several times to avoid their harassment.

Even accepting all of Ms. Lama-Tamang’s testimony as true,1

 we conclude

that substantial evidence supports the IJ’s determination that she has failed to

establish past persecution. 

Generally speaking, an alien may not be removed to a particular

country if he or she can establish a clear probability of persecution in

that country on the basis of race, religion, nationality, membership in

a particular social group, or political opinion. 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

requires more than just restrictions or threats to life and liberty. 

Such persecution may be inflicted by the government itself, or by a

non-governmental group that the government is unwilling or unable

to control. 
2 Ms. Lama-Tamang does not argue that it is more likely than not that she

would be individually persecuted in the future should she return to Nepal, see

8 U.S.C. § 1208.16(b)(2), or that there is a pattern or practice of persecution of a

group of people like her, and that her inclusion in such a group makes it more

likely than not that her life or freedom would be threatened upon return, see id.

§ 1208.16(b)(2)(ii). 

-5-

Witjaksono, 573 F.3d at 976-77 (emphasis added) (citations and quotations

omitted). “Threats alone generally do not constitute actual persecution[,]” and

Ms. Lama-Tamang has not provided any evidence that the threats led to “overt

violence or mistreatment.” Vatulev v. Ashcroft, 354 F.3d 1207, 1210 (10th Cir.

2003). We therefore cannot conclude that a reasonable adjudicator would be

compelled to find that Ms. Lama-Tamang had established past persecution.2

Because Ms. Lama-Tamang has failed to establish past persecution, it is

unnecessary for us to examine whether that theoretical persecution could have

been because of her political opinion, one of the protected grounds under 8 U.S.C.

§ 1231(b)(3)(A). 

The petition for review is dismissed in part and denied in part.

Entered for the Court

William J. Holloway, Jr.

Circuit Judge