Case: 19-60308 Document: 00515659685 Page: 1 Date Filed: 12/03/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED December 3, 2020 No. 19-60308 Lyle W. Cayce Clerk Kamaluddin Nikpay, Petitioner, versus William P. Barr, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals BIA No. A216 286 243 Before Clement, Ho, and Duncan, Circuit Judges. Per Curiam:* Kamaluddin Nikpay petitions for review of the decision of the Board of Immigration Appeals (“BIA”) affirming the decision of the Immigration Judge (“IJ”) to deny Nikpay’s application for asylum, humanitarian asylum, and protections under the Convention Against Torture (“CAT”). He challenges the BIA’s findings, contending that he made the requisite * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 19-60308 Document: 00515659685 Page: 2 Date Filed: 12/03/2020 No. 19-60308 showings for the BIA to conclude that he would be persecuted and tortured if he returned to Afghanistan. For the following reasons, we deny the petition for review. I. Kamaluddin Nikpay, a native and citizen of Afghanistan, entered the United States on an A-2 visa in 2018 to participate in a Defense Language Institute (“DLI”) program in San Antonio, Texas. At the time, Nikpay was a member of the Afghan Air Force. During his participation in the program, he asked another servicemember to join him in going absent without leave (“AWOL”), and the servicemember subsequently reported him to the authorities. When confronted, Nikpay refused to return to Afghanistan and stated that, if forced to return, he would “[r]un away or bring the aircraft down.” Following an investigation, Nikpay was disenrolled from the DLI program—which terminated his A-2 visa—and arrested. Shortly thereafter, he was served with a Notice to Appear, which charged him with removability. 1 Nikpay sought asylum, humanitarian asylum, withholding of removal, and CAT protection, contending that—if forced to return to Afghanistan—he feared harm by the Taliban and Afghan government. The IJ denied Nikpay’s requests for relief and ordered that he be removed. Nikpay appealed the IJ’s decision to the BIA. 2 Agreeing with the IJ, the BIA determined that Nikpay failed to demonstrate that he suffered past 1 The Notice to Appear is not included in the administrative record. However, the parties do not dispute—and the record reflects—that Nikpay was charged with removability. 2 Nikpay did not appeal the IJ’s decision to deny his withholding of removal claim. Although the BIA affirmed the IJ’s conclusion on this issue anyway, Nikpay has not 2 Case: 19-60308 Document: 00515659685 Page: 3 Date Filed: 12/03/2020 No. 19-60308 persecution in Afghanistan or had an independent, well-founded fear of future persecution. Accordingly, it also concluded that Nikpay did not qualify for a humanitarian grant of asylum. Finally, it affirmed the IJ’s finding that Nikpay failed to prove he would more likely than not be tortured “by ...
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