Prateep Bhandari v. MERRICK B. GARLAND, United States Attorney General

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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PRATEEP BHANDARI,
Petitioner,
v.
MERRICK B. GARLAND,
United States Attorney General,
Respondent.
No. 20-9639
(Petition for Review)
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ORDER AND JUDGMENT*
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Before HARTZ, KELLY, and CARSON, Circuit Judges.
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Prateep Bhandari, a native and citizen of Nepal, petitions for review of a
decision by the Board of Immigration Appeals (BIA) affirming the denial of asylum
by the Immigration Judge (IJ). 1 We dismiss the petition.
Mr. Bhandari entered the United States unlawfully in 2014. He was
apprehended a few days later. During his credible-fear interview he expressed fear
that if returned to Nepal, he would be killed by Maoists because of his political
* This order and judgment is not binding precedent, except under the doctrines of law
of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1 Mr. Bhandari also applied for withholding of removal and protection under the
Convention Against Torture. But he does not challenge the statement by the BIA that
he has preserved for review only his asylum claim.
FILED
United States Court of Appeals
Tenth Circuit
October 8, 2021
Christopher M. Wolpert
Clerk of Court
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support for the Nepali Congress Party. The asylum officer found Mr. Bhandari’s fear
credible and a hearing was set before an IJ.
At his hearing in immigration court, Mr. Bhandari conceded removability but
applied for asylum. See generally 8 U.S.C. § 1101(a)(42)(A) (defining refugee as
someone who is “unable or unwilling to return to” his country of origin “because of
persecution or a well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political opinion”); 8 C.F.R.
§ 1208.13 (describing process by which asylum-seeker can prove he is a “refugee”).
The IJ denied Mr. Bhandari’s asylum application on two grounds. First, he found
that the government had rebutted the presumption of a well-founded fear of
persecution by demonstrating a change in circumstances in Nepal: namely, that “the
circumstances have changed in Nepal with respect to the political climate, and that
[Mr. Bhandari’s] fear of being targeted by political opponents, such as the Maoists, is
not well-founded.” Certified Administrative Record (CAR) at 62. See 8 C.F.R.
§ 1208.13(b)(1)(i)(A) (government may rebut presumption of a well-founded fear of
persecution by showing a “fundamental change in circumstances such that the
applicant no longer has a well-founded fear of persecution in the applicant’s country
of nationality”). Second, he found that Mr. Bhandari had failed to show that the
Nepalese government would be unable or unwilling to control his persecutors. See
Rivera-Barrientos v. Holder, 666 F.3d 641, 646 (10th Cir. 2012) (alien attempting to
show refugee status via past persecution must prove, among other things, that
persecution “is committed by the government or forces the government is either
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unable or unwilling to control”); Krastev v. INS, 292 F.3d 1268, 1275–79 (10th Cir.
2002).
On appeal to the BIA, Mr. Bhandari attacked only the IJ’s first ground for
denying relief: that circumstances in Nepal had changed so that he did not have a
well-founded fear of being persecuted by Maoists. Noting that the unchallenged
alternative holding would bar relief even if Mr. Bhandari were to succeed on the
argument he did make, the BIA dismissed the appeal based on waiver of any
challenge to the unable-or-unwilling holding.
In this court Mr. Bhandari argues that the IJ’s unable-or-unwilling holding was
not supported by substantial evidence. But he is too late. We “may review a final
order of removal only if . . . the alien has exhausted all administrative remedies
available to the alien as of right . . . .” 8 U.S.C. § 1252(d)(1). “To satisfy
§ 1252(d)(1), an alien must present the same specific legal theory to the BIA before
he or she may advance it in court.” Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237
(10th Cir. 2010). A litigant “may not add new theories seriatim as the litigation
progresses from the agency into the courts.” Id. at 1238. And to be preserved, an
argument must have been adequately presented and developed. See Bronson v.
Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007). For example, a petitioner’s citations
to a statute and two cases, “without specifically explaining why” those authorities
entitled him to relief, “did not fairly present his legal theory to the BIA.” Birhanu v.
Wilkinson, 990 F.3d 1242, 1254 (10th Cir. 2021).
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Mr. Bhandari contends that he preserved his unable-or-unwilling argument in
his brief to the BIA when he included the following sentence: “The police also do
not protect us, alleged the Congress Party President.” CAR at 17. But this sentence
was not included, or even referenced, in the argument section of his BIA brief. It
appears in the section entitled “The Merits Hearing,” which summarizes the hearing
before the IJ. A naked statement of fact does not present a legal argument any more
than does a naked citation to a statute or judicial opinion. We have repeatedly held,
for example, that a party does not preserve an issue in an appellate brief by simply
mentioning a factual predicate for the issue; the issue itself must be addressed and
fully developed. See, e.g., Wurm v. Ford Motor Co., 849 F. App’x 766, 768–69 (10th
Cir. 2021) (issue waived where appellant provided factual background and recited
legal standards without explaining how district court erred); Robinson v. Barrett, 823
F. App’x 606, 610 (10th Cir. 2020) (issue waived where appellant mentioned relevant
facts in opening brief’s statement of facts but never developed issue); Maynard v.
Colo. Sup. Ct. Off. of Att’y Regul. Couns., 499 F. App’x 793, 796 (10th Cir. 2012)
(issue waived where appellant mentioned relevant facts in opening brief’s
background section, requested reversal on issue in summary-of-argument section, but
ignored issue entirely in argument section).
Mr. Bhandari therefore failed to exhaust his unable-or-unwilling argument
before the BIA, and we lack jurisdiction to consider that issue. Because that issue is
dispositive of Mr. Bhandari’s asylum claim—no matter what we might hold on the
exhausted issues—we must affirm the decision below. See Rodas-Orellana v.
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Holder, 780 F.3d 982, 991–92 n.10 (10th Cir. 2015) (petitioner contended that he had
been persecuted because of his membership in a group that, in his view, qualified as a
“particular social group”; because court determined that the group failed to satisfy
one of the requirements for being a “particular social group,” it had no need to
consider whether a separate requirement was satisfied); Shook v. Bd. of Cnty.
Comm’rs of Cnty. of El Paso, 543 F.3d 597, 613 n.7 (10th Cir. 2008) (Gorsuch, J.)
(“[W]here a district court’s disposition rests on alternative and adequate grounds, a
party who, in challenging that disposition, only argues that one alternative is
erroneous necessarily loses because the second alternative stands as an independent
and adequate basis, regardless of the correctness of the first alternative.”).
We DISMISS the petition for review.
Entered for the Court
Harris L Hartz
Circuit Judge
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