Ram Gurung v. William Barr

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 13 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT RAM BAHADUR GURUNG, No. 15-71808 Petitioner, Agency No. A089-302-651 v. MEMORANDUM * WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted May 13, 2019 San Francisco, California Before: THOMAS and IKUTA, Circuit Judges, and MOLLOY,** District Judge. Ram Bahadur Gurung, a citizen of Nepal and former Gurkha1 soldier, petitions for review of a Board of Immigration Appeals (“BIA”) decision denying * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Donald W. Molloy, United States District Judge for the District of Montana, sitting by designation. 1 “A legacy of an imperial past,” Gurkhas are Nepalese soldiers with special legal status serving in the British and Indian armies, as well as in Singapore’s police force. 1 his applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252(a). We review for substantial evidence the BIA’s denial of Gurung’s claims. Garcia v. Holder, 749 F.3d 785, 789 (9th Cir. 2014). “Where, as here, the BIA agrees with the IJ’s reasoning, we review both decisions.” Garcia-Martinez v. Sessions, 886 F.3d 1291, 1293 (9th Cir. 2018). The petition is granted on the limited grounds that the agency’s adverse credibility determination was not supported by substantial evidence, which warrants reconsideration of Gurung’s claim for withholding of removal. It is denied in all other respects. 1. Substantial evidence supports the BIA’s determination that the November 2008 attack on Gurung’s uncle did not amount to “changed circumstances which materially affect[ed] [Gurung’s] eligibility for asylum.” See 8 U.S.C. § 1158(a)(2)(B), (D). Because the facts underlying Gurung’s claim of changed circumstance are not in dispute, we have jurisdiction to consider the merits of the BIA’s determination. Vahora v. Holder, 641 F.3d 1038, 1042 (9th Cir. 2011). Gurung’s uncle was attacked by Maoists because he also had been a Gurkha soldier and they wanted his support, funding, and training. Those are the same threats that Gurung himself was subject to prior to leaving Nepal and are reflective of the broader Maoist feelings towards the Gurkha. According to Gurung’s statement, his uncle had been approached by Maoists “many times” with the same 2 demands. As a result, “changed circumstances” do not exist as to excuse Gurung’s untimely asylum application. 2. Substantial evidence supports the BIA’s conclusion that Gurung did not establish a past or a likelihood of future torture should he return to Nepal. It is insufficient to provide generalized evidence that torture has or is occurring, see Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010), and there is no evidence that the authorities would acquiesce to torture, Andrade-Garcia v. Lynch, 828 F.3d 829, 836−37 (9th Cir. 2016). Recognizing that Gurung was physically assaulted,2 the record does not ...

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