### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-60431 Summary Calendar

MANOJ KUMAR KARKI,
Petitioner

v. ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL, Respondent

Petition for Review of an Order of the Board of Immigration Appeals BIA No. A087 592 123

Before SMITH, PRADO, and HIGGINSON, Circuit Judges. PER CURIAM: * Petitioner M anoj Kumar Karki, a native and citizen of N epal, petitions for review of the decision of the Board of Immigration Ap p e a ls (“BIA”) dismissing his appeal of the Immigration Judge ’ s (“IJ”) o rder denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT” )

. Ka r k i concedes that h e is removable as charged. He argues that his mistreatment by M aoists rose t o the level of persecut i o n a n d w as principally motivated by his association with the Royal Nepalese Army, and that U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D J uly10, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-60431 Document: 00512302621 Page: 1 Date Filed: 07/10/2013No. 12-60431

he has a well-founded f ear of future persecution in Nepal. We review the BIA’s findings of fact f

or substantial evidence, and its conclusions o f law de novo . Zhu v. Gonzales , 493 F.3d 588, 594 (5th Cir. 2007). The BIA affirmed the IJ’s d en i al of Karki’s asylum claim o n three independent gr o u n d s . First, the BIA held that the mistreatment alleged by Karki—specifically, that he was slapped on t wo occasions a n d threatened on three occasions—“was not sufficiently severe t o c o n s titute p ersecution.” We agree. See Tesfamichael v. Gonzales , 469 F .3d 109, 1 16 (5th Cir. 2006) (noting that “extreme conduct” is required to establish p ersecution); Eduard v. Ashcroft , 379 F.3d 182, 188 ( 5th Cir. 2004) (holding that petitioner who was “struck in the head with a rock while w a l k i ng to church” and exposed to “denigration, harassment, and thre a t s ” d id not establish past persecution); see also Chen v. Ashcroft , 46 F. App’x 732 (5th Cir. 2002) (per curiam) (holding that fines, slaps, punches, and kicks by agents of the Chinese government did n ot rise to the level of extreme conduct necessary to compel a finding of past persecution). Second, the B IA endorsed the factual finding of the IJ that Karki’s mistreatment was not motivated by hi s “political opinion or any other protected c haracteristic.” This finding is s upported by s ubstantial evidence. Al t h o u gh Karki’s former membership in and s upport for the R o yal Nepalese Army m ay qualify as a protected characteristic, In re C-A -, 23 I

. & N. Dec. 951, 9 55 ( B.I. A

. 2 0 0 6 ) , t he record s u pports the BIA’s finding that his m istreatment was motivated not by his association with the army, but by a desire to convince him to join the Maoist

cause. Third, the BIA concurred with the IJ’s d etermination that Karki “did not demons t r ate that h e has a well-founded fear of [future] persecution in Nepal.” We perceive no error in the BIA’s weighin g o f the Chen factors. See Chen v. Gonzales , 4 70 F.3d 1131, 1135–36 (5th C ir. 2006). In sum, we conclude that the denial of Karki’s application for asylum is supported by substantial evidence.

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Karki’s failure to sa t i s fy the lower burden of proof necessary to obtain asylum prevents him from satisfying the higher burden of proof f or withholding of removal. See Majd v. Gonzales, 446 F.3d 590, 595 (5th Cir. 2006). With respect t o his CAT claim, Karki provided no evidence that he was tortured in the past, and his three unfortunate encounters with Maoists do not establish that it is more likely than not that he w o u l d b e s i ngled out by the government for torture if he returns to N epal. See Tamara-Gomez v. Gonzales , 447 F.3d 343, 350–51 ( 5th C ir. 2006) (“[R]elief under the [CAT] requires a two part analysis—first, is it m o r e l i k e l y than not that the alien will be tortured upon return t o his homeland; and second, is there s ufficient state action i nvolved in that torture.”) (in t e r nal f ootnote omitted); see also A lcantara v. H older , 493 F

. App’x 511, 5 14–15 (5th Cir. 2012) (per curiam) (holding that s ubst a n t i a l evidence supported the BIA’s determination that p etitioner did not show that it

was m ore likely than n ot that he w ould be tortured by state authorities upon his return to Mexico). The petition for review is DENIED.

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