Gurung v. Barr

Opinion

18-519 Gurung v. Barr BIA Christensen, IJ A202 081 117 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 16th day of December, two thousand nineteen.

PRESENT: GUIDO CALABRESI, PETER W. HALL, DEBRA ANN LIVINGSTON, Circuit Judges. _____________________________________

SURAJ GURUNG, Petitioner,

v. 18-519 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Gary J. Yerman, New York, NY.

FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; Keith I. McManus, Assistant Director; Juria L. Jones, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC. UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

Petitioner Suraj Gurung, a native and citizen of Nepal,

seeks review of a January 31, 2018, decision of the BIA

affirming a June 8, 2017, decision of an Immigration Judge

(“IJ”) denying Gurung’s application for asylum, withholding

of removal, and relief under the Convention Against Torture

(“CAT”). In re Suraj Gurung, No. A 202 081 117 (B.I.A. Jan.

31, 2018), aff’g No. A 202 081 117 (Immig. Ct. N.Y. City June

8, 2018). We assume the parties’ familiarity with the

underlying facts and procedural history.

We have reviewed both the BIA’s and IJ’s decisions “for

the sake of completeness.” Zaman v. Mukasey, 514 F.3d 233,

237 (2d Cir. 2008) (internal quotation marks omitted). The

standards of review are well established. See 8 U.S.C.

§ 1252(b)(4)(B); Lecaj v. Holder, 616 F.3d 111, 114 (2d Cir.

2010).

The agency did not err in concluding that Gurung failed

to satisfy his burden of proof for asylum, withholding of

2 removal, and CAT relief based on his claim that Maoists

attacked him in 2003 and 2013 on account of his family’s

refusal to support the Maoists and his membership in the

Nepali Congress Party. To establish eligibility for asylum,

Gurung was required to show that he suffered past persecution,

or that he has a well-founded fear of future persecution on

account of his race, religion, nationality, membership in a

particular social group, or political opinion. 8 U.S.C.

§§ 1101(a)(42), 1158(b)(1)(A), (B)(i).

Past Persecution

“[P]ersecution is ‘an extreme concept that does not

include every sort of treatment our society regards as

offensive.’” Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d

Cir. 2011) (quoting Ai Feng Yuan v. U.S. Dep’t of Justice,

416 F.3d 192, 198 (2d Cir. 2005)). A valid claim of past

persecution may “encompass[] a variety of forms of adverse

treatment, including non-life-threatening violence and

physical abuse,” but the harm must be sufficiently severe,

rising above “mere harassment.” Ivanishvili v. U.S. Dep’t

of Justice, 433 F.3d 332, 341 (2d Cir. 2006) (internal

quotation marks and brackets omitted). “‘[T]he difference

3 between harassment and persecution is necessarily one of

degree,’ . . . the degree must be assessed with regard to the

context in which the mistreatment occurs.” Beskovic v.

Gonzales, 467 F.3d 223, 226 (2d Cir. 2006) (quoting

Ivanishvili, 433 F.3d at 341). In evaluating a past

persecution claim, the agency must consider the harm suffered

in the aggregate. Poradisova v. Gonzales, 420 F.3d 70, 79–

80 (2d Cir. 2005).

In determining whether Gurung established past

persecution, the IJ appropriately considered Gurung’s young

age at the time of the first incident in 2003 (when Maoists

hit him with a bamboo stick) and further considered that

incident cumulatively with the second incident 10 years later

when Maoists “lightly hit” him before he escaped. See Jorge-

Tzoc v. Gonzales, 435 F.3d 146, 150 (2d Cir. 2006) (“[A]ge

can be a critical factor in the adjudication of asylum claims

and may bear heavily on the question of whether an applicant

was persecuted . . . .”); see also Poradisova, 420 F.3d at

79–80. Because Gurung was not harmed in either incident

and he was not mistreated during the 10 years in between, the

IJ did not err in concluding that these attacks did not rise

4 to the level of persecution. See Mei Fun Wong, 633 F.3d at

72; cf. Jian Qiu Liu v. Holder, 632 F.3d 820, 822 (2d Cir.

2011) (finding no error in the agency’s determination that a

noncitizen failed to establish past persecution when “prior

to his arrest and detention by local police, he suffered only

minor bruising from an altercation with family planning

officials, which required no formal medical attention and had

no lasting physical effect”).

Well-Founded Fear of Persecution

When a petitioner establishes past persecution, there is

a presumption of a well-founded fear of future persecution on

the basis of the petitioner’s original claim. 8 C.F.R.

§ 1208.13(b)(1). The agency reasonably found that even

assuming Gurung suffered past persecution, the presumption of

a well-founded fear of future persecution was rebutted.

The Government can rebut the presumption of a well-

founded fear of persecution if it shows, by a “preponderance

of the evidence,” that “[t]here has been a fundamental change

in circumstances such that the applicant no longer has a well-

founded fear of persecution . . . .” 8 C.F.R.

§ 1208.13(b)(1)(i)(A), (ii); see also Lecaj, 616 F.3d at 115.

5 The agency may consider the most recent State Department

reports but also must consider any contrary evidence and the

applicant’s “particular circumstances.” See Lecaj, 616 F.3d

at 115-16.

The IJ considered the State Department’s Human Rights

Reports on Nepal as well as Gurung’s evidence and reasonably

found as follows. The 10-year armed conflict between the

Maoist insurgency and the government of Nepal ended in 2006

when Maoists signed a peace accord and joined the government.

A breakaway Maoist faction committed some acts of political

violence and intimidation during the 2013 elections. By

2015, the Maoist Party was no longer committing organized

human rights abuses or extortion, although a “very small”

Maoist faction extorted wealthy individuals but did not

specifically target members of the Congress Party. In 2017,

the Congress Party won the national election, which had 71

percent voter participation and only a few incidents of

violence in a few districts.

A comparison of the State Department’s Human Rights

Reports for 2013, which was the last year Gurung had contact

with Maoists, and 2016 shows the extent to which conditions

6 improved. The 2013 report states that Maoists committed acts

of violence and extortion throughout the year, although the

number of such incidents had markedly decreased from previous

years. By comparison, the 2016 report does not report that

Maoists committed any such acts during the year. The country

conditions evidence thus supports the agency’s finding that

there has been a fundamental change in circumstances since

the Maoists assaulted Gurung in 2003 and 2013. See Lecaj,

616 F.3d at 115–16.

Further, the agency properly considered the change in

circumstances in Nepal in the context of Gurung’s particular

circumstances. See id. at 116. In support of his claim of

a well-founded fear of future persecution, Gurung submitted

two threatening letters that Maoists had sent to his family’s

home in 2014. His only other assertion that Maoists made any

further contact with his family was, according to his mother,

during a recent local election when they looked for him.

Gurung admitted that the Congress Party candidate for whom he

had campaigned in 2003 had not had problems with Maoists nor

had his mother, who is a party member (although she does not

campaign).

7 The agency reasonably took note that Gurung did not

provide a date for the Maoists’ latest attempt to locate him

and that his mother did not mention this visit in her 2016

letter or submit another letter detailing this visit. The

2014 letters and Gurung’s testimony about the alleged

interaction between his mother and Maoists, without any

details or corroboration, did not compel the conclusion that

Gurung has a well-founded fear of persecution. This is

especially so given the steady decline in politically-

motivated violence by Maoists to the point that there were no

reports of such acts in 2016, the large voter turnout and

success of Gurung’s political party in the 2017 elections,

and the lack of harm in Nepal to the local party candidate

and Gurung’s mother. See Lecaj, 616 F.3d at 116–19; see also

Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999)

(applicant’s claimed fear of future persecution is weakened

when similarly situated family members continue to live

unharmed in petitioner’s native country).

Accordingly, the agency did not err in concluding that

circumstances in Nepal had fundamentally changed such that

Gurung does not have a well-founded fear of political

8 persecution. See 8 C.F.R. § 1208.13(b)(1)(i)(A), (ii); see

also Lecaj, 616 F.3d at 116–19. Because Gurung does not have

a well-founded fear of persecution, the agency did not err in

denying asylum, withholding of removal, and CAT relief given

that all three claims were based on the same factual

predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d

Cir. 2006).

For the foregoing reasons, the petition for review is

DENIED. All pending motions and applications are DENIED and

stays VACATED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court