Shakti Mahapita Rai v. JEFFERSON B. SESSIONS III, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHAKTI MAHAPITA RAI,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
No. 15-71041
Agency No. A089-703-119
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 16, 2017**
San Francisco, California
Before: CLIFTON and FRIEDLAND, Circuit Judges, and GLEASON,*** District
Judge.
Shakti Rai, a native and citizen of Nepal, petitions for review of an order by
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Sharon L. Gleason, United States District Judge for
the District of Alaska, sitting by designation.
FILED
NOV 21 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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the Board of Immigration Appeals (“BIA”) adopting and affirming an immigration
judge’s (“IJ”) denial of his applications for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”).1 We have jurisdiction
pursuant to 8 U.S.C. § 1252, and we deny the petition.
1. We review adverse credibility findings for substantial evidence and can
grant review only if “any reasonable adjudicator would be compelled to conclude”
that the petitioner was credible. Garcia v. Holder, 749 F.3d 785, 789 (9th Cir.
2014) (citing 8 U.S.C. § 1252 (b)(4)(B)). Substantial evidence supports the IJ’s
and the BIA’s conclusion that Rai’s testimony was not credible. In particular, the
IJ questioned both “the extent of [Rai’s] fear and . . . whether the incidents which
he said caused the fear actually happened” because Rai returned to Nepal two
times after these incidents allegedly took place. See Loho v. Mukasey, 531 F.3d
1016, 1018-19 (9th Cir. 2009) (holding that voluntary returns to one’s home
country can support an adverse credibility finding). Moreover, the IJ and BIA also
considered the fact that Rai “fail[ed] to inquire about ways to remain in the United
States on one of his prior stops in this country.” Rai’s explanations for why he
returned do not compel a finding to the contrary. And there is no evidence to
suggest that Rai was “coerced into returning.” Id. at 1018. Therefore, his appeal
1Rai has petitioned only for review of his applications for asylum and withholding
of removal. We therefore treat his CAT claim as waived.

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to Ding v. Ashcroft is unpersuasive. See 387 F.3d 1131, 1139-40 (9th Cir. 2004)
(reversing an adverse credibility finding in part because the IJ improperly relied on
evidence that the alien returned to her home country while under the control of
others who held her travel documents).
2. “We review . . . [a] determination that a petitioner does not qualify for
asylum or withholding of removal under the highly deferential ‘substantial
evidence’ standard.” Zetino v. Holder, 622 F.3d 1007, 1012 (9th Cir. 2010) (citing
INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)). To be eligible for asylum, an
applicant must demonstrate that he is “unable or unwilling to return to . . . [his
home] country because of persecution or a well-founded fear of persecution.” 8
U.S.C. § 1101(a)(42)(A). Although Rai submitted documentary evidence in
addition to his testimony, this evidence does not compel a reasonable fact finder to
conclude that Rai has demonstrated that he is eligible for asylum. Indeed, this
evidence does not explain why Rai’s voluntary returns to Nepal do not undercut his
asylum claim. See Loho, 531 F.3d at 1017-18 (“[A]n alien’s history of willingly
returning to his or her home country militates against a finding of past persecution
or a well-founded fear of future persecution.”).
3. It follows that Rai also has not shown a “‘clear probability’ of [a] threat
to [his] life or freedom if [he is] deported” that would entitle him to a withholding
of removal. Tamang v. Holder, 598 F.3d 1083, 1091 (9th Cir. 2010) (quoting INS

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v. Stevic, 467 U.S. 407, 429-30 (1984)); see Cortez-Pineda v. Holder, 610 F.3d
1118, 1125 (9th Cir. 2010) (stating that when an individual has not met “the lower
standard of proof for asylum, he necessarily [has] not satisf[ied] the more stringent
standard of proof for withholding of removal.”).
PETITION DENIED.

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