IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 Manoj Kumar Karki, a native and citizen of Nepal, petitions for

review of the decision of the Board of Immigration Appeals (“BIA”) dismissing

his appeal of the Immigration Judge’s (“IJ”) order denying his applications for

asylum, withholding of removal, and protection under the Convention Against

Torture (“CAT”). Karki concedes that he is removable as charged. He argues

that his mistreatment by Maoists rose to the level of persecution and was

principally motivated by his association with the Royal Nepalese Army, and that

United States Court of Appeals

Fifth Circuit

F I L E D

July 10, 2013

Lyle W. Cayce

Clerk

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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No. 12-60431

he has a well-founded fear of future persecution in Nepal. We review the BIA’s

findings of fact for substantial evidence, and its conclusions of law de novo. Zhu

v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007).

The BIA affirmed the IJ’s denial of Karki’s asylum claim on three

independent grounds. First, the BIA held that the mistreatment alleged by

Karki—specifically, that he was slapped on two occasions and threatened on

three occasions—“was not sufficiently severe to constitute persecution.” We

agree. See Tesfamichael v. Gonzales, 469 F.3d 109, 116 (5th Cir. 2006) (noting

that “extreme conduct” is required to establish persecution); Eduard v. Ashcroft,

379 F.3d 182, 188 (5th Cir. 2004) (holding that petitioner who was “struck in the

head with a rock while walking to church” and exposed to “denigration,

harassment, and threats” did 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 not rise to the level

of extreme conduct necessary to compel a finding of past persecution). Second,

the BIA endorsed the factual finding of the IJ that Karki’s mistreatment was not

motivated by his “political opinion or any other protected characteristic.” This

finding is supported by substantial evidence. Although Karki’s former

membership in and support for the Royal Nepalese Army may qualify as a

protected characteristic, In re C-A-, 23 I. & N. Dec. 951, 955 (B.I.A. 2006), the

record supports the BIA’s finding that his mistreatment 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 determination that Karki “did not

demonstrate that he has a well-founded fear of [future] persecution in Nepal.” 

We perceive no error in the BIA’s weighing of the Chen factors. See Chen v.

Gonzales, 470 F.3d 1131, 1135–36 (5th Cir. 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 satisfy the lower burden of proof necessary to obtain

asylum prevents him from satisfying the higher burden of proof for withholding

of removal. See Majd v. Gonzales, 446 F.3d 590, 595 (5th Cir. 2006). 

With respect to 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 would be singled out by the

government for torture if he returns to Nepal. See Tamara-Gomez v. Gonzales,

447 F.3d 343, 350–51 (5th Cir. 2006) (“[R]elief under the [CAT] requires a two

part analysis—first, is it more likely than not that the alien will be tortured

upon return to his homeland; and second, is there sufficient state action involved

in that torture.”) (internal footnote omitted); see also Alcantara v. Holder, 493

F. App’x 511, 514–15 (5th Cir. 2012) (per curiam) (holding that substantial

evidence supported the BIA’s determination that petitioner did not show that it

was more likely than not that he would be tortured by state authorities upon his

return to Mexico).

The petition for review is DENIED. 

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