United States Court of Appeals

For the First Circuit

No. 21-1665

ROSY KHANAL SINGH,

Petitioner,

v.

MERRICK B. GARLAND,

Respondent.

PETITION FOR REVIEW OF AN ORDER 

OF THE BOARD OF IMMIGRATION APPEALS

Before

Montecalvo, Selya, and Thompson,

Circuit Judges.

Steve Jeffrey Gutherz, for petitioner.

Yanal H. Yousef, Trial Attorney, Office of Immigration 

Litigation, with whom Brian Boynton, Acting Assistant Attorney 

General, Civil Division, and Sheri R. Glaser, Senior Litigation 

Counsel, Office of Immigration Litigation, were on brief, for 

respondent.

November 27, 2023

 
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MONTECALVO, Circuit Judge. Petitioner Rosy Khanal Singh 

seeks review of a decision of the Board of Immigration Appeals 

("BIA") affirming the denial of her applications for asylum and 

withholding of removal. Singh sought these forms of relief based 

on claims that she experienced past persecution and had a wellfounded fear of future persecution on account of political opinion 

and membership in a particular social group (her nuclear family). 

Before us, her challenges are limited to the agency's denial of 

her asylum and withholding of removal claims that were premised on 

alleged past persecution suffered in 2007 at the hands of Maoist 

insurgents in Nepal. Specifically, Singh contends that the agency 

erred in concluding that she failed to establish that the Nepali 

government was unwilling or unable to protect her. For the reasons 

that follow, we deny the petition.

I. Background

Singh entered the United States in May 2012 on a B-1 

temporary visa. She overstayed her visa, and in February 2016, 

the Department of Homeland Security ("DHS") issued Singh a Notice 

to Appear. Singh conceded removability and applied for asylum, 

withholding of removal, protection under the Convention Against 

Torture ("CAT"), and voluntary departure.1 Her asylum and 

1 The Immigration Judge ruled against Singh on her CAT 

claim, and Singh did not challenge this ruling before the BIA or 
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withholding of removal applications rested on claims of past 

persecution and a well-founded fear of future persecution at the 

hands of the Nepali Maoist party.

In November 2018, an Immigration Judge ("IJ") convened 

a hearing at which Singh testified and submitted documentary 

evidence for the IJ's review, including a declaration from her 

father-in-law, letters from the Nepali Congress Party ("NCP"), a 

police report, and news articles regarding violence in Nepal. At 

the hearing, the IJ, upon DHS's request and with counsel for 

Singh's consent, took judicial notice of the State Department's 

2017 Country Conditions Report for Nepal. Although the IJ 

ultimately rejected Singh's asylum and withholding of removal 

applications, the IJ deemed Singh's testimony credible. 

Singh's testimony before the IJ included the following 

account. In 2007, Singh lived with her husband, son, and husband's 

parents in Kapilvastu, Nepal. Her father-in-law was a prominent 

local member of the NCP. In September 2007, individuals associated 

with the Maoists -- an insurgent group that signed a peace 

agreement with the Nepali government in November 2006 marking the 

end of a 10-year civil war -- killed a prominent NCP leader in 

before us. As such, her claim for protection under CAT is waived.

See Makhoul v. Ashcroft, 387 F.3d 75, 82 (1st Cir. 2004).
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Kapilvastu. Singh's husband spoke out against the Maoists for the 

killing. 

About a month after the killing, a group of Maoists 

invaded Singh's home. The Maoists tied up Singh's in-laws and 

beat her husband with the butt of a gun. As a result, Singh's 

husband suffered a broken hand and bled from his head. During the 

attack, one of the perpetrators also pushed Singh into the corner 

of a table, and she lost consciousness. 

Luckily, a neighbor, who also was a former Nepali 

military officer, heard the commotion and notified the army. 

Members of the army quickly arrived, and the group of Maoists fled. 

Singh and her husband were treated for their injuries at a 

hospital. Shortly after being discharged, Singh's husband fled to 

India, and Singh testified that she had not heard from him since 

November 2007. 

About a week after the attack, Maoists kidnapped Singh's 

son while he was on his way home from school. The Maoists held 

Singh's son for approximately two weeks. Singh's father-in-law, 

NCP leaders, and a local resident associated with the Maoists 

negotiated with the Maoists and reached an agreement to secure her 

son's release. In exchange for her son's release, Singh's family 

made two promises: (1) Singh's father-in-law would not express 

opposition to the Maoists; and (2) Singh and her family would
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remain in the village. The kidnappers also warned Singh not to 

report the incident to the police, and so she did not. 

After these two incidents -- and despite her promise to

remain in the village -- Singh and her son moved to live with her 

parents about one day's bus ride away from the village. Singh 

remained there until she moved to the United States five years 

later on a B-1 visa. About three years after that, her son joined 

her in the United States on a student visa. Singh and her son had 

no further run-ins with the Maoists after they left Kapilvastu and 

moved in with her parents in Biratnagar. However, Singh heard 

that the Maoists were still looking for them. Singh's father-inlaw remained politically active in Kapilvastu, and since 2007, he 

and Singh's mother-in-law have not experienced further harm. 

The IJ granted Singh's application for voluntary 

departure but denied her claims for asylum, withholding of removal, 

and protection under the CAT. The IJ denied the claims for asylum 

and withholding of removal on the basis that Singh failed to 

establish that she had experienced past persecution or had a wellfounded fear of future persecution. The IJ rejected Singh's claim 

of past persecution for two independent reasons. First, the IJ 

found that the two October 2007 incidents -- the attack and the 

kidnapping -- "d[id] not rise above a series of isolated events"

to the level of persecution. Second, the IJ concluded that Singh 
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had not adduced sufficient evidence to establish that any harm was 

the result of the Nepali government's action or inaction. On this

second point, the IJ stressed that the Nepali army responded 

promptly to the home invasion and Singh never notified the police 

of the kidnapping. As for Singh's claims premised on future 

persecution, the IJ found that Singh lacked the required wellfounded fear because neither Singh nor her family had experienced 

any harm at the hands of the Maoists after 2007. 

Singh appealed the IJ's decision to the BIA, which

affirmed the IJ's decision. Regarding Singh's claims premised on 

past persecution, the BIA declined to reach the issue of whether 

the harm Singh suffered during October 2007 rose to the level of 

persecution and rested its affirmance solely on Singh's failure to 

establish that any persecution was by individuals that "the Nepali 

government was unable or unwilling to control." The BIA also 

identified no clear error in the IJ's implicit finding that Singh 

"suffered and fears harm from private actors, as opposed to 

government officials." And the BIA agreed with the IJ that Singh 

had not independently shown a well-founded fear of future 

persecution. Accordingly, the BIA affirmed the denial of Singh's 

asylum and withholding of removal applications and reinstated the 

period of voluntary departure.

Singh timely filed the present petition for review.
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II. Standard of Review

We review the "BIA's decision . . . as the agency's final 

decision and look to the IJ's decision only 'to the extent that 

the BIA deferred to or adopted the IJ's reasoning.'" Mendez v.

Garland, 67 F.4th 474, 481 (1st Cir. 2023) (quoting Chavez v. 

Garland, 51 F.4th 424, 429 (1st Cir. 2022)); see also Bonilla v. 

Mukasey, 539 F.3d 72, 76 (1st Cir. 2008). In doing so, "[w]e 

examine the agency's findings of fact under the substantial 

evidence standard, upholding its factual findings so long as they 

are 'supported by reasonable, substantial, and probative evidence 

on the record considered as a whole.'" Murillo Morocho v. Garland, 

80 F.4th 61, 65 (1st Cir. 2023) (quoting Sanabria Morales v. Barr, 

967 F.3d 15, 19 (1st Cir. 2020)). In other words, the agency's 

factual findings must "be upheld unless a 'reasonable adjudicator 

would be compelled to conclude to the contrary.'" Orelien v. 

Gonzales, 467 F.3d 67, 70 (1st Cir. 2006) (quoting Bocova v. 

Gonzales, 412 F.3d 257, 262 (1st Cir. 2004)). On the other hand, 

conclusions of law are reviewed de novo. Mendez, 67 F.4th at 481.

In our review, "[w]e confine ourselves to the reasoning 

relied on by the agency and will not affirm on other bases." 

Murillo Morocho, 80 F.4th at 65. And " we limit our review to 

those issues properly exhausted before the agency." Id.
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III. Discussion

To qualify for asylum, an applicant "must demonstrate 

either past persecution or a well-founded fear of future 

persecution on account of her race, religion, nationality, 

political opinion, or membership in a particular social group." 

Ortiz-Araniba v. Keisler, 505 F.3d 39, 41 (1st Cir. 2007) (citing 

8 U.S.C. § 1158(b)(1)(B)(i)); see also 8 C.F.R. § 208.13(b)(1) 

(stating that establishment of past persecution on account of a 

protected ground creates a rebuttable presumption of well-founded 

fear of future persecution); Morales-Morales v. Sessions, 857 F.3d 

130, 134 (1st Cir. 2017) (explaining that a non-citizen "who has 

suffered past persecution is presumed to have a well-founded fear 

of persecution and thus to be entitled to a grant of asylum"

(citing Chen v. Lynch, 814 F.3d 40, 45 (1st Cir. 2016))). "Where 

a private actor, rather than the government itself, is alleged to 

be the persecutor, the applicant must demonstrate 'some 

connection' between the actions of the private actor and 

'governmental action or inaction.'"2 Rosales Justo v. Sessions, 

2 The IJ determined that Singh failed to show that any 

alleged persecution "was the direct result of [g]overnment action, 

[g]overnment supported action[,] or the [g]overnment's

unwillingness or inability to control private conduct." Although 

the IJ did not explicitly find that the Maoists who harmed Singh 

were private actors, rather than government actors, the BIA 

expressly upheld the IJ's "finding that [Singh] suffered and fears 

harm from private actors, as opposed to government officials" as 
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895 F.3d 154, 162 (1st Cir. 2018) (quoting Ortiz-Araniba, 505 F.3d 

at 41). Specifically, Singh had the burden of establishing "that 

the government was either 'unable or unwilling' to protect [her] 

from persecution." Id. (quoting Burbiene v. Holder, 568 F.3d 251, 

255 (1st Cir. 2009)). For withholding of removal, an applicant 

must show the same requirements, but the burden of proof is even 

higher: she must prove "that it is more likely than not that she 

would face persecution on account of a protected ground if returned 

not clearly erroneous. In so doing, the BIA cited Singh's 

testimony before the IJ regarding who attacked her and her family.

In that cited portion of the testimony, Singh agreed that the

people who attacked her "[were not] members of the [g]overnment." 

Before us, Singh does not argue that the IJ did not actually find 

that her attackers were private actors and that the BIA thus 

engaged in improper factfinding. Nor does she argue that the BIA 

erred in upholding the IJ's finding that the Maoists who attacked 

her were private actors, rather than government actors. Any 

argument that the IJ or BIA erred in treating her attackers as 

private actors rather than government actors is therefore waived. 

See Morales-Morales, 857 F.3d at 135 (explaining that "we may 

fairly deem [undeveloped] claim[s] abandoned" or waived).

To be sure, Singh makes several arguments regarding the 

Maoist party's control of the government in Nepal around the time 

of the 2007 incidents. But she makes those arguments under the

theory that the government was "unable or unwilling" to control 

the private actors. In other words, those arguments are tied to 

Singh's contention that even though her attackers themselves may 

not have been government actors, the government was full of Maoists 

who embraced violence and thus was unable to protect her -- even 

if some members of the government affiliated with other parties 

may have been willing to protect her. Those arguments are thus 

separate from any argument for treating her attackers as government 

actors themselves -- the waived argument described above. 
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to her country." Pojoy-De León v. Barr, 984 F.3d 11, 18 (1st Cir. 

2020).

Singh's primary contention of error before us concerns 

the agency's determination regarding her claims of past 

persecution and the government's willingness or ability to protect 

her at that time.3 Specifically, she argues that substantial 

evidence does not support the agency's findings that the harm Singh 

experienced was not perpetrated by actors whom the government was 

"unwilling or unable" to control. In so doing, she asserts that 

the IJ should have taken judicial notice of the United States 

Department of State 2007 Human Rights Report for Nepal ("the 2007 

Report") and that if the IJ had done so, the IJ would have been 

compelled to find that the Nepali government was unwilling or 

unable to protect her against Maoist insurgents. Relatedly, Singh 

3 Singh also argues that the harm she experienced in 

October 2007 did rise to the level of persecution (contrary to the 

IJ's decision that it did not). But, as Singh recognizes elsewhere 

in her brief, this argument is not properly before us because the 

BIA did not consider this aspect of the IJ's decision. See Chavez, 

51 F.4th at 433 ("When the BIA does not consider an IJ's 

alternative ground for denying relief, that ground is not before 

us." (quoting Bonilla, 539 F.3d at 81-82)).

Additionally, Singh makes no argument in her briefing 

contesting the BIA's determination (agreeing with the IJ) that she 

failed to establish a well-founded fear of future persecution 

independent from any presumption based on past persecution. Thus, 

we deem that claim waived and do not address it. See MoralesMorales, 857 F.3d at 135.
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further asserts that the IJ erroneously relied on a later 

Department of State 2017 Human Rights Report for Nepal ("the 2017 

Report"), rather than the 2007 Report properly corresponding to 

the year of the alleged past persecution, in making the

determination on the past persecution "unwilling or unable" issue. 

We start by considering the latter two assertions 

regarding the Department of State reports. Contrary to Singh's 

counsel's contentions otherwise at oral argument, Singh never 

argued to the BIA that the IJ committed error by either (1) failing 

to take judicial notice of the 2007 Report, or (2) allegedly 

considering the 2017 Report (in place of the 2007 Report) when 

assessing the claims related to past persecution. Under principles 

of administrative exhaustion, "we consistently have held that 

arguments not made before the BIA may not make their debut in a 

petition for judicial review of the BIA's final order." GomezAbrego v. Garland, 26 F.4th 39, 47 (1st Cir. 2022) (internal 

quotation marks omitted) (quoting Ahmed v. Holder, 611 F.3d 90, 97 

(1st Cir. 2010)). Thus, because Singh did not properly exhaust 

her arguments about the IJ's alleged error regarding the 2007 and 

2017 Reports, we do not rule on those arguments here.4

4 Even if these issues were properly presented to us 

following administrative exhaustion, we would reject Singh's 

contention that the IJ committed error in either of these ways.

Singh did not file the 2007 Report before the IJ or at any time 
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Though she did not raise the arguments described above 

before the BIA, Singh filed an excerpt of the 2007 Report for the 

first time in her appeal to the BIA and suggested that the excerpt 

was relevant to the analysis of the government's action or 

inaction. Noting that the excerpt was not in "the record as 

constituted at the time of her hearing," the BIA nevertheless

considered the excerpt and held it "does not demonstrate that the 

harm [Singh] described was perpetuated by either the government or 

by individuals or groups that the government is unable or unwilling 

to control." Because the BIA's consideration of the excerpt was 

proper5 and our review is focused on the BIA's decision (reviewing 

request that the IJ take judicial notice of that Report. Thus, 

the IJ did not err in failing to take judicial notice of the 2007 

Report when it was never put before the IJ.

We would also reject the contention that the IJ committed 

error in the IJ's use of the 2017 Report. The IJ did take judicial 

notice of the 2017 Report, upon DHS's request at the hearing before 

the IJ and with counsel for Singh's consent. However, the IJ's 

decision only references the 2017 Report in its analysis of whether 

Singh had a well-founded fear of future persecution independent of 

any presumption based on past persecution. There is no indication 

in the IJ's decision that the IJ relied on the 2017 Report at all 

in assessing the past persecution claims regarding the 2007 events.

5 The BIA's consideration of the 2007 Report excerpt 

despite its absence from the record before the IJ was permitted, 

though not required, under 8 C.F.R. § 1003.1(d)(3)(iv)(A). See

Yang Zhao-Cheng v. Holder, 721 F.3d 25, 28 (1st Cir. 2013) 

("[A]lthough the BIA is empowered to take administrative notice of 

commonly known facts such as current events or the contents of 

official documents, it is not compelled to do so." (internal 

quotation marks omitted) (quoting Kaihua Huang v. Holder, 312 F.

App'x 420, 422 (2d Cir. 2009))); Jinbei Zhao v. Barr, 824 F. App'x 
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portions of the IJ's decision only to the extent that the BIA 

deferred to or adopted the IJ's reasoning), see Chavez, 51 F.4th 

at 429, we will consider the 2007 Report excerpt and the BIA's use 

of it in our analysis of the agency's "unwilling or unable" 

findings below.

We turn now to Singh's broader argument that the agency's 

"unwilling or unable" findings were not supported by substantial 

evidence. In order to demonstrate the required connection between 

the actions of the alleged private actor persecutors and 

governmental action or inaction, Singh "had the burden of proving 

that the government was either 'unwilling or unable' to protect 

[her] from persecution." Rosales Justo, 895 F.3d at 162 (citing 

Burbiene, 568 F.3d at 255). Though Singh had the burden to "prove 

either unwillingness or inability," she was not required to prove 

both to succeed on her claim. Id. at 163. As we have previously 

explained, "unwillingness and inability are distinct issues" and 

13, 14 (2d Cir. 2020) (finding that the "BIA properly took 

administrative notice of the U.S. State Department's 2004 Profile 

of Asylum Claims and Country Conditions" under 8 C.F.R. 

§ 1003.1(d)(3)(iv) after the petitioner "submitted only limited 

evidence of country conditions at the time of her merits hearing" 

before the IJ). This regulation provides: "The [BIA] will not 

engage in factfinding in the course of deciding cases, except that 

the [BIA] may take administrative notice of facts that are not 

reasonably subject to dispute, such as . . . (2) The contents of 

official documents outside the record . . . ." 8 C.F.R. 

§ 1003.1(d)(3)(iv)(A). 
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the "inquiry into whether there is a government nexus must include 

separate consideration of the evidence of unwillingness and the 

evidence of inability." Id. at 163, 164 n.8. 

Here, the BIA's finding (upholding the IJ's 

determination below) that Singh "did not carry her burden to 

establish past persecution by individuals or groups the Nepali 

government was unable or unwilling to control" was supported by 

substantial evidence. In making this finding, the BIA first 

referenced the two facts cited by the IJ in this analysis: (1) 

that the Nepali army responded when a neighbor alerted them to the 

home invasion, and the Maoists fled; and (2) that Singh did not 

report the kidnapping incident to the police because she believed

that "the consequences would not be good." Noting that "[o]n 

appeal, [Singh] does not challenge the Immigration Judge's finding 

regarding the government's ability or willingness to protect her 

from the Maoists based on the record as constituted at the time of 

her hearing," the BIA proceeded to consider the 2007 Report excerpt 

that Singh filed for the first time in her appeal to the BIA. The 

excerpt states that in 2007, Nepal was "operating under an interim 

political system: a parliamentary democracy with a powerless 

constitutional monarchy. Prime Minister Girija Prasad Koirala has 

a multiparty coalition government, which includes members of the 

Communist Party of Nepal-Maoist (CPN-M)." U.S. Dep't of State, 
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Bureau of Democracy, H.R. & Lab., Nepal 2007 (2008). The excerpt

also describes ongoing severe violence by Maoists in 2007 despite 

the peace agreement in 2006 and states that "[l]acking politica[l]

backing, police were often reluctant to intervene [in armed 

attacks], particularly against the Maoists or . . . members [of 

the Maoists' subsidiary organization, YCL]." Id. It also explains 

that generally in Nepal in 2007, "[i]mpunity for human rights 

violators . . . [was a] serious problem[]." Id. The BIA found 

simply, without elaborating on its reasoning, that the 2007 Report 

excerpt "does not demonstrate that the harm [Singh] described was 

perpetuated by either the government or by individuals or groups 

that the government is unable or unwilling to control." 

In addition to the 2007 Report, before us, Singh points 

to a 2012 New York Times article that was part of her original 

evidentiary filing before the IJ in support of her argument that 

the government was unwilling or unable to protect her from her

persecutors. That article describes conditions generally in Nepal 

following the 2006 peace agreement, including government 

corruption and Maoists' and other groups' "street tactics" for 

inciting political protest involving violent acts. Seyom Brown & 

Vanda Felbab-Brown, Nepal, on the Brink of Collapse, N.Y. Times 

(June 5, 2012).
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On this record, substantial evidence supports the BIA's 

findings as to both the "unwilling" and "unable" analyses. The

Nepali army's prompt response to the attack on Singh and her family 

in their home reasonably supports the government's willingness to 

take action to protect Singh from her Maoist persecutors under our 

prior caselaw. See, e.g., Ortiz-Araniba, 505 F.3d at 42 ("In 

determining whether a government is willing and able to control 

persecutors, we have explained that a prompt response by local 

authorities to prior incidents is 'the most telling datum.'"

(quoting Harutyunyan v. Gonzales, 421 F.3d 64, 68 (1st Cir. 

2005))). In the face of this specific evidence of the army's 

willingness to intervene (and its actual intervention) to protect 

Singh, the more general contrary evidence from the 2007 Report's 

reference to Nepali police's reluctance to intervene against 

Maoist violence is insufficient to compel a different result than 

that reached by the BIA and the IJ on the willingness issue. 

As to the separate analysis of the government's ability

to offer protection, we have explained that prior efforts by the 

government to protect an asylum applicant from persecution that 

"proved fruitful" can support a finding that the government is 

able to offer an applicant protection. See Rosales Justo, 895 

F.3d at 163-64 (first citing Khattak v. Holder, 704 F.3d 197, 206 

(1st Cir. 2013); then citing Khan, 727 F.3d at 7-8; and then citing 
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Ortiz-Araniba, 505 F.3d at 42-43) (explaining that where a

government's "willing efforts to protect its citizens fall short," 

an applicant may be able to prove inability without proving 

unwillingness, whereas in cases where evidence shows government 

efforts "proved fruitful," courts have found such evidence to 

support both government willingness and ability to offer 

protection). Here, the fact that the Maoist persecutors who 

invaded Singh's home fled when the army was called demonstrates 

"fruitful" action to protect Singh by the Nepali government. 

Singh's failure to report the kidnapping incident to the 

police was also a proper consideration for the BIA and the IJ to 

raise in this analysis. The failure of a petitioner to report 

persecution to authorities "is not necessarily fatal to a 

petitioner's case if the petitioner can demonstrate that reporting 

private abuse to government authorities would have been futile." 

Morales-Morales, 857 F.3d at 135 (first citing Pavlova v. INS, 441 

F.3d 82, 91 (2d Cir. 2006); and then citing Ornelas-Chavez v. 

Gonzales, 458 F.3d 1052, 1058 (9th Cir. 2006)); see also OrnelasChavez, 458 F.3d at 1058 (explaining that an applicant "need not 

have reported . . . persecution to the authorities if [they] can 

convincingly establish that doing so would have been futile or 

have subjected [them] to further abuse"). Singh argues that she 

did not report the kidnapping because she and her family were told 
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that if they did so, "the consequences would not be good." Yet 

without more, the record below did not compel a conclusion that 

seeking government assistance would have been futile or subjected 

her to further abuse. 

The 2007 Report excerpt's discussion of the Maoists' 

role in the government, Maoist violence and human rights 

violations, and impunity for human rights violations does weigh in 

Singh's favor. These points raise questions about the government's 

ability to offer protection against Maoist persecutors. And to a 

lesser extent, the suggestion of ongoing violence post-2006 

related to Maoist activities in the 2012 New York Times article 

offers some support to this point as well. However, under 

substantial evidence review, we cannot say that this evidence so 

overwhelms the direct evidence of the government's ability to

respond effectually on behalf of Singh and her family against their 

Maoist persecutors -- causing the persecutors to flee during the 

home invasion -- that a reasonable adjudicator would be compelled 

to conclude that the government was unable to protect Singh. See

Ortiz-Araniba, 505 F.3d at 43 (finding that documentary evidence 

showing government inability to control the gang at issue "d[id] 

not compel a contrary conclusion" to the BIA's determination of 

government willingness and ability where the BIA considered and 

ruled based on "countervailing evidence [of] the government's 
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willingness and ability to prosecute and incarcerate particular 

gang members"). Thus, because substantial evidence supported the 

agency's findings that Singh failed to show that the government 

was either unwilling or unable to protect her from persecution, 

her challenge to the BIA's determination on her asylum claim fails. 

Singh separately challenges the BIA's order denying her 

claim for withholding of removal. "But that claim not only 

requires the petitioners to satisfy the 'unwilling or unable' 

standard but also to do so under 'the even-more-demanding clearprobability test.'" Vila-Castro v. Garland, 77 F.4th 10, 15 (1st 

Cir. 2023) (quoting Morales-Morales, 857 F.3d at 136). This 

challenge therefore fails for the same reasons as her asylum 

challenge. 

IV. Conclusion

For the reasons stated above, we deny the petition for 

review.