Nikpay v. Barr

United States Court of Appeals
for the Fifth Circuit

No. 19-60308

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opinion should not be published and is not precedent except under the limited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.
United States Court of Appeals
Fifth Circuit
FILED
December 3, 2020

Lyle W. Cayce
Clerk
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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
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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 or with
the consent or acquiescence . . . of Afghan officials or other individuals acting
in an official capacity upon his repatriation.” Thus, the BIA dismissed
Nikpay’s appeal.
Nikpay then br ought this petition, claiming the BIA erred in its review
of the IJ’s decision. We affirm and deny Nikpay’s petition for review.
II.
“Our review encompasses both ‘the BIA’s decision and . . . the IJ’s
decision to the extent that it influenced the BIA.’” Morales v. Sessions, 860
F.3d 812, 815 (5th Cir. 2017) (alteration in original) (quoting Shaikh v. Holder,
588 F.3d 861, 863 (5th Cir. 2009)). Whether an alien is eligible for asylum
and CAT protection is reviewed under the substantial evidence standard. See
Chen v. Gonzales, 470 F.3d 1131, 1134–41 (5th Cir. 2006). Under the
substantial evidence standard, the evidence must not only support, but must
also compel, a contrary conclusion for reversal to be proper. Id. at 1134
(citation omitted). The burden falls on the petitioner to demonstrate the
evidence is so compelling that “no reasonable factfinder could reach a
contrary conclusion.” Id. (citation omitted).
A.
To successfully obtain asylum, an alien must demonstrate that he is a
refugee, and that he has a well-founded fear of persecution based upon his

challenged the decision below with respect to his withholding of removal claim, and we will
not address this issue.
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race, religion, nationality, membership in a particular social group, or
political opinion. 8 U.S.C. § 1158(b). He may show the latter by proving he
was a victim of past persecution or possesses a well-founded fear of future
persecution. 8 C.F.R. § 208.13(b). “Past persecution entails harm inflicted
on the alien on account of a statutorily enumerated ground by the
government or forces that a government is unable or unwilling to control.”
Tesfamichael v. Gonzales, 469 F.3d 109, 113 (5th Cir. 2006) (citing 8 C.F.R.
§ 1208.13(b)(1)). A showing of past persecution entitles an alien to a
presumption of future persecution, 8 C.F.R. § 208.16(b)(1)(i); otherwise, to
demonstrate a well-founded fear of future persecution, an alien must show
that “a reasonable person in the same circumstances would fear persecution
if deported,” Orellana-Monson v. Holder, 685 F.3d 511, 518 (5th Cir. 2012)
(Clement, J.) (quoting Jukic v. INS, 40 F.3d 747, 749 (5th Cir. 1994)).
“Persecution includes the infliction of suffering or harm, under
government sanction, upon persons who differ in a way regarded as offensive
in a manner condemned by civilized governments.” Id. (cleaned up).
Successfully demonstrating persecution requires a showing of “specific,
detailed facts.” Faddoul v. INS, 37 F.3d 185, 188 (5th Cir. 1994) (citation
omitted). Nikpay claims that he was persecuted based upon his Hazara
ethnicity and Shia Imami Ismaili religion, and that he has a well-founded fear
of persecution in the future based upon his (1) Hazara ethnicity; (2) Shia
Imami Ismaili religion; and (3 ) status as an “Afghani military member who
[is] perceived to have deserted the military.”
3
He focuses on three examples
to establish that he was persecuted in the past.

3
Prior to this petition, the record also characterized “his political opposition to the
Taliban and pro-Afghani government political opinion” as a basis upon which he fears
persecution and torture. It does not appear that Nikpay alleges his political opposition to
the Taliban as an independent ground; rather, he seems to contend that the Taliban will
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Nikpay first contends that he suffered persecution when he fled to the
mountains in fear of the Taliban as a child. Yet, his claim is undermined by
the fact that he ultimately returned to his village, completed school, and
joined the Afghan military. See, e.g., Maknojiya v. Holder, 524 F. App’x 956,
957–58 (5th Cir. 2013) (per curiam) (holding that substantial evidence
supported a finding that, where he was ordered to move to Pakistan, thrown
to the ground, threatened, and his cars and grain were destroyed—the alien
had not been persecuted on the basis of his religion because he and his family
continued to live in the area, he worked for “nearly seven years after the
attack without encountering the attackers,” and his family continues to live
in the nation without threats).
Second, Nikpay asserts that an instance of prior physical abuse he
suffered from the Taliban, and its threats against his life, suffice to establish
past persecution. However, although he was tied up, Nikpay was not
hospitalized nor did this incident result in permanent injury. See Eduard v.
Ashcroft, 379 F.3d 182, 188 (5th Cir. 2004) (holding petitioner failed to
establish past persecution where he sustained cuts on his head after he had
been hit in the head with a rock); see also Li v. Holder, 579 F. App’x 225, 226
(5th Cir. 2012) (per curiam) (“The mistreatment described by Li did not
result in any permanent injury, hospitalization, or significant detention . . . .
[and did] not rise to the level of the extreme conduct necessary to compel a
finding of past persecution.”) (citations omitted); Abdel-Masieh v. INS, 73
F.3d 579, 584 (5th Cir. 1996) (holding that the BIA did not err in finding that
Abdel did not suffer past persecution and considering in this determination
that the beatings he received were not characterized as “severe”).
Furthermore, the threat he received was a single, indirect threat that

persecute and torture him on account of the other three bases. We will address whether
Nikpay has adequately challenged the Taliban’s status as a private actor, see infra pp. 6–7.
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apparently came while he was in the United States. See Morales, 860 F.3d at
816 (stating that a single threat does not constitute persecution).
Finally, Nikpay’s allegation that he suffered persecution while in the
military is belied by the fact that he was later selected to attend the DLI
training program. On none of these three bases did Nikpay present such
compelling evidence that “no reasonable factfinder could reach a contrary
conclusion.” Chen, 470 F.3d at 1134 (citation omitted). The substantial
evidence supports the BIA’s finding that he failed to establish he suffered
past persecution.
Because Nikpay did not establish that he suffered past persecution, he
was not entitled to a presumption of future persecution. 8 C.F.R.
§ 208.16(b)(1)(i). Nikpay contends that he is at risk of being persecuted by
either or both of two entities: the Taliban and the Afghan government. The
substantial evidence does not support a finding for Nikpay with respect to
either contention.
An asylum applicant is not required to provide evidence that there is
a reasonable possibility that he would be singled out individually for
persecution; he may instead show that there is a pattern or practice in his
home country of persecuting similarly situated individuals. See 8 C.F.R.
§ 1208.13(b)(2)(iii). However, although Nikpay adduces evidence indicating
that the Taliban has targeted Hazaras in the past, Nikpay does not show that
the Taliban has a pattern or practice of persecuting Hazaras. The Afghan
government’s failure to suppress all violence caused by the Taliban does not
support a conclusion that it is unable or unwilling to do so. See Gonzales-Veliz
v. Barr, 938 F.3d 219, 231 (5th Cir. 2019) (“An applicant seeking to establish
persecution based on violent conduct of a private actor must show more than
difficulty controlling private behavior.” (cleaned up)); see also Katembo v.
Barr, 825 F. App’x 225, 226 (5th Cir. 2020) (per curiam) (applying the
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“unable or unwilling” standard to whether petitioner established a credible
fear of persecution). Therefore, we need not consider Nikpay’s claims of
persecution with respect to the Taliban.
4

The remaining evidence—that adduced by Nikpay in support of his
claim of future persecution at the hands of the Afghan government—is
inapposite. He cites a report by the United Nations Assistance Mission in
Afghanistan (“UNAMA”), but the majority of detainees who were
interviewed in the report indicated that they were tortured to induce a
confession. Nikpay has suggested no reason that the Afghan government
would seek a confession of any sort during his potential imprisonment.
Moreover, the UNAMA report “focused primarily on conflict-related
detainees,” which—as an alleged deserter—Nikpay is not. The BIA’s
decision that Nikpay has not demonstrated an independent, well-founded
fear of future persecution and ultimate conclusion that Nikpay is ineligible
for asylum are supported by substantial evidence.
Finally, Nikpay contends that the BIA fails to point to any particular
facts in its opinion. But the BIA “does not have to write an exegesis on every
contention. What is required is merely that it consider the issues raised, and
announce its decision in terms sufficient to enable a reviewing court to
perceive that it has heard and thought and not merely reacted.” Efe v.
Ashcroft, 293 F.3d 899, 908 (5th Cir. 2002) (Clement, J.) (citation omitted).
The BIA did so here.

4
To the extent that Nikpay argues that the Taliban is a quasi-official group, cf.
United States v. Hamidullin, 114 F. Supp. 3d 365, 379 (E.D. Va. 2015) (Hudson, J.)
(considering the Taliban’s status as a governing authority), we lack jurisdiction to entertain
his claim because it was not exhausted before the BIA, see Claudio v. Holder, 601 F.3d 316,
318 (5th Cir. 2010) (citations omitted).
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Additionally, because Nikpay “fails to show that [he] suffered past
persecution on account of a protected ground, [he] necessarily fails to show
that the BIA erred in holding that [he] is not entitled to humanitarian
asylum.” Alvarado-Velasquez v. Sessions, 722 F. App’x 365, 366 (5th Cir.
2018) (per curiam); see Singh v. Barr, 818 F. App’x 331, 335 (5th Cir. 2020)
(per curiam) (citation omitted); see also Shehu v. Gonzales, 443 F.3d 435, 440–
41 (5th Cir. 2006) (concluding that the evidence did not compel a
determination that Shehu was entitled to humanitarian asylum after finding
that she failed to demonstrate she had suffered past persecution). Thus, the
BIA did not abuse its discretion in denying Nikpay’s request for humanitarian
asylum.
B.
Pursuant to CAT, the United States may not remove an alien to a
country in which he is more likely than not to be tortured. 8 C.F.R.
§ 1208.16(c)(4). “‘Torture is defined as any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted on a person’
by a public official, at the instigation of a public official, with the consent of a
public official, or with the acquiescence of a public official.” Morales, 860
F.3d at 818 (quoting Roy v. Ashcroft, 389 F.3d 132, 140 (5th Cir. 2004)).
Specifically, the BIA held that Nikpay “failed to meet his burden of
proving that he himself will more likely than not face torture upon his
repatriation.” Nikpay’s contention that he will be tortured is predicated on
what he has been told about Afghan prisons. But he fails to distinguish his
case from others in which courts have determined that unsatisfactory prison
conditions are insufficient to warrant CAT protection. See, e.g., Robert v.
Ashcroft, 114 F. App’x 615, 617 (5th Cir. 2004) (per curiam) (relying on In re
J-E-, 23 I. & N. 291, 296 (BIA 2002) (en banc), overruled on other grounds by
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Azanor v. Ashcroft, 364 F.3d 1013 (9th Cir. 2004)). Instead, he asserts that the
IJ’s credibility finding is dispositive.
Nikpay is mistaken. See, e.g., Guardado v. Holder, 553 F. App’x 459,
460 (5th Cir. 2014) (per curiam) (reviewing decisions by the BIA and IJ, in
which the IJ found the appellant credible, and nonetheless determining that
the evidence did not compel a contrary result). Furthermore, Nikpay
conveniently omits the fact that some measure of prosecution, fine, or
imprisonment by the Afghan government would constitute lawful criminal
sanctions for his decision to desert the military. Cf. Milat v. Holder, 755 F.3d
354, 361 (5th Cir. 2014) (holding that “punishment for violation of
conscription laws of general applicability does not in itself constitute
‘persecution’ on account of political opinion . . . .”). Thus, he fails to
demonstrate that the evidence would compel a reasonable factfinder to reach
a different conclusion than the BIA. Substantial evidence supports the BIA’s
denial of Nikpay’s CAT claim.
The petition for review is DENIED.
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