Gurung v. Barr

• Court: Court of Appeals for the Second Circuit
• Decided: January 3, 2020
• Docket: 17-4082
• Status: Unpublished

Opinion

17-4082 Gurung v. Barr BIA Kolbe, IJ A208 151 434

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 3rd day of January, two thousand twenty.

PRESENT: JON O. NEWMAN, DEBRA ANN LIVINGSTON, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________

RADHA MAYA GURUNG, Petitioner,

v. 17-4082 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Khagendra Gharti-Chhetry, New York, NY.

FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Claire L. Workman, Senior Litigation Counsel; Nelle M. Seymour, 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 Radha Maya Gurung, a native and citizen of

Nepal, seeks review of a December 4, 2017, decision of the

BIA affirming a March 20, 2017, decision of an Immigration

Judge (“IJ”) denying her asylum, withholding of removal, and

relief under the Convention Against Torture (“CAT”). In re

Radha Maya Gurung, No. A208 151 434 (B.I.A. Dec. 4, 2017),

aff’g No. A208 151 434 (Immig. Ct. N.Y. City Mar. 20, 2017).

We assume the parties’ familiarity with the underlying facts

and procedural history in this case.

Because the BIA’s opinion “closely tracks the IJ’s

reasoning,” we have reviewed both the IJ’s and the BIA’s

opinions “for the sake of completeness.” Wangchuck v. Dep’t

of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review

the agency’s findings of fact under the substantial evidence

standard. See Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d

Cir. 2018). Under this standard, “[w]e treat factual

findings as ‘conclusive unless any reasonable adjudicator 2 would be compelled to conclude to the contrary.’” Id.

(quoting 8 U.S.C. § 1252(b)(4)(B)).

The agency did not err in concluding that Gurung failed

to satisfy her burden of proof for asylum, withholding of

removal, and CAT relief based on her claim that Maoists

threatened her and beat her mother to force them to leave the

Nepali Congress Party for the Maoist Party. To establish

eligibility for asylum, an applicant must show that she has

suffered past persecution or has a well-founded fear of future

persecution on account of 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

A valid past persecution claim can be based on harm other

than threats to life or freedom, including “non-life-

threatening violence and physical abuse,” Beskovic v.

Gonzales, 467 F.3d 223, 226 n.3 (2d Cir. 2006)(citing Chen v.

INS, 359 F.3d 121, 128–29 (2d Cir. 2004)), 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)(citing Chen, 359 F.3d at 128). In evaluating a

past persecution claim, the agency must consider the harm

3 suffered in the aggregate. Poradisova v. Gonzales, 420 F.3d

70, 79-80 (2d Cir. 2005).

The agency did not err in finding that Gurung’s

experiences in Nepal did not constitute persecution.

Gurung’s claim of past persecution rested on unfulfilled

threats directed at her, and an incident during which her

mother was forced to attend a Maoist meeting and beaten on

the way to the meeting. These incidents, even considered

cumulatively, did not constitute persecution against Gurung.

See Ci Pan v. U.S. Att’y Gen., 449 F.3d 408, 412-13 (2d Cir.

2006) (recognizing that unfulfilled threats do not amount to

persecution); Tao Jiang v. Gonzales, 500 F.3d 137, 141 (2d

Cir. 2007) (providing that an asylum applicant cannot

establish persecution based on harm to a family member unless

the applicant shared or was perceived to share the persecuted

characteristic with the family member, was “within the zone

of risk when the family member was harmed, and suffered some

continuing hardship after the incident”).

Well-Founded Fear of Future Persecution

Absent past persecution, an alien may establish

eligibility for asylum by demonstrating a well-founded fear

of future persecution. 8 C.F.R. § 1208.13(b)(2). To

4 establish a well-founded fear of persecution, an applicant

must show that she “subjectively fears persecution” and that

“h[er] fear is objectively reasonable.” Ramsameachire v.

Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004)(citing Abankwah v.

INS, 185 F.3d 18, 22 (2d Cir. 1999)).

The agency reasonably determined that Gurung’s fear of

persecution in Nepal was not objectively reasonable.

Gurung’s testimony about her most recent threats lacked any

details about how and why she believed they were politically

motivated. Further, there was no country conditions evidence

in the record indicating that Maoist violence remains a

widespread problem or that Maoists target Nepali Congress

Party members such as Gurung.

On this record, the agency reasonably concluded that

Gurung failed to establish a well-founded fear of

persecution. See Ramsameachire, 357 F.3d at 178; see also

Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005)

(“In the absence of solid support in the record . . . , [an

applicant’s] fear is speculative at best.”)(citing INS v.

Cardoza-Fonesca, 480 U.S. 421, 440 (1987)). Accordingly, the

agency did not err in denying asylum, withholding of removal,

and CAT relief because all three claims were based on the

5 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. As we have completed our review, any stay of removal

that the Court previously granted in this petition is VACATED,

and any pending motion for a stay of removal in this petition

is DISMISSED as moot. Any pending request for oral argument

in this petition is DENIED in accordance with Federal Rule of

Appellate Procedure 34(a)(2), and Second Circuit Local Rule

34.1(b).

FOR THE COURT: Catherine O=Hagan Wolfe Clerk of Court