18-1860 Gurung v. Barr BIA Wright, IJ A201 125 997/998 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.
1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 17th day of August, two thousand twenty. 5 6 PRESENT: 7 GUIDO CALABRESI, 8 DENNY CHIN, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 RAJU PUNCHO GURUNG, AKA 14 RAJUPUNCHO GURUNG, SUJAN GURUNG, 15 Petitioners, 16 17 v. 18-1860 18 NAC 19 WILLIAM P. BARR, UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONERS: Gary J. Yerman, Esq., New York, 25 NY. 26 27 FOR RESPONDENT: Ethan P. Davis, Acting Assistant 28 Attorney General; Leslie McKay, 1 Senior Litigation Counsel; 2 Madeline Henley, Trial Attorney, 3 Office of Immigration Litigation, 4 United States Department of 5 Justice, Washington, DC.
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioners Raju Puncho Gurung and Sujan Gurung,
11 natives and citizens of Nepal, seek review of a May 25,
12 2018, decision of the BIA affirming a July 19, 2017,
13 decision of an Immigration Judge (“IJ”) denying Raju Puncho
14 Gurung’s application for asylum, withholding of removal,
15 and relief under the Convention Against Torture (“CAT”).
16 In re Raju Puncho Gurung, Sujan Gurung, No. A 201 125
17 997/998 (B.I.A. May 25, 2018), aff’g No. A 201 125 997/998
18 (Immig. Ct. N.Y. City July 19, 2017). We assume the
19 parties’ familiarity with the underlying facts and
20 procedural history.
21 Under the circumstances of this case, we have reviewed
22 both the IJ’s and BIA’s decisions “for the sake of
23 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448
24 F.3d 524, 528 (2d Cir. 2006). The applicable standards of 2 1 review are well established. See 8 U.S.C. § 1252(b)(4)(B);
2 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009)
3 (reviewing factual findings for substantial evidence and
4 questions of law and the application of law to undisputed
5 facts de novo).
6 To establish asylum eligibility, an applicant must show
7 that he has suffered past persecution, or has a well-
8 founded fear of future persecution, on account of race,
9 religion, nationality, membership in a particular social
10 group, or political opinion. See 8 U.S.C. § 1101(a)(42).
11 If the applicant is found to have suffered past
12 persecution, he is “presumed to have a well-founded fear of
13 future persecution on the basis of the original claim.” 8
14 C.F.R. § 1208.13(b)(1).
15 Past Persecution
16 The agency did not err in concluding that Gurung failed
17 to show that he suffered past persecution at the hands of
18 the Maoists. “[P]ersecution is ‘an extreme concept that
19 does not include every sort of treatment our society
20 regards as offensive.’” Mei Fun Wong v. Holder, 633 F.3d
21 64, 72 (2d Cir. 2011) (quoting Ai Feng Yuan v. U.S. Dep’t
3 1 of Justice, 416 F.3d 192, 198 (2d Cir. 2005)). Persecution
2 may “encompass[] a variety of forms of adverse treatment,
3 including non-life-threatening violence and physical
4 abuse,” but the harm must be sufficiently severe, rising
5 above “mere harassment.” Ivanishvili v. U.S. Dep’t of
6 Justice, 433 F.3d 332, 341 (2d Cir. 2006) (internal
7 quotation marks and brackets omitted). “‘[T]he difference
8 between harassment and persecution is necessarily one of
9 degree,’ . . . [and] the degree must be assessed with
10 regard to the context in which the mistreatment occurs.”
11 Beskovic v. Gonzales, 467 F.3d 223, 226 (2d Cir. 2006)
12 (quoting Ivanishvili, 433 F.3d at 341). In evaluating a
13 past persecution claim, the agency must consider the harm
14 suffered in the aggregate. Poradisova v. Gonzales, 420
15 F.3d 70, 79–80 (2d Cir. 2005).
16 The agency did not err in finding that Gurung’s past
17 harm did not rise to the level of persecution because he
18 testified to only one incident of physical harm and
19 provided little detail regarding the attack or his
20 injuries. While Gurung testified that Maoists threw rocks
21 at his group of protestors in 2006, he escaped without
4 1 harm. The only physical harm he suffered was in December
2 2009, when he was pushed and kicked. He provided little
3 detail and appears to have sustained only a minor injury.
4 Accordingly, the agency did not err in concluding that
5 these incidents did not rise to the level of persecution.
6 See Jian Qiu Liu v. Holder, 632 F.3d 820, 822 (2d Cir.
7 2011) (finding no error in agency’s decision that harm did
8 not rise to the level of persecution where applicant,
9 “prior to his arrest and detention[,] . . . suffered only
10 minor bruising from an altercation with family planning
11 officials, which required no formal medical attention and
12 had no lasting physical effect”).
13 Moreover, the Maoists’ threats against Gurung’s parents
14 do not constitute past persecution of Gurung. See Tao
15 Jiang v. Gonzales, 500 F.3d 137, 141 (2d Cir. 2007) (“As a
16 general principle, an asylum applicant cannot claim past
17 persecution based solely on harm that was inflicted on a
18 family member on account of that family member’s political
19 opinion or other protected characteristic.”). And a letter
20 threatening Gurung that was delivered to his parent’s home
21 was not a sufficiently imminent threat so as to constitute
5 1 past persecution. See Scarlett v. Barr, 957 F.3d 316, 328
2 (2d Cir. 2020) (“[U]nfulfilled threats alone generally do
3 not rise to the level of persecution. To warrant a
4 different conclusion, an applicant must adduce objective
5 evidence that the threat was so imminent or concrete, or so
6 menacing as itself to cause actual suffering or harm.”
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18-1860 Gurung v. Barr BIA Wright, IJ A201 125 997/998 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.
1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 17th day of August, two thousand twenty. 5 6 PRESENT: 7 GUIDO CALABRESI, 8 DENNY CHIN, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 RAJU PUNCHO GURUNG, AKA 14 RAJUPUNCHO GURUNG, SUJAN GURUNG, 15 Petitioners, 16 17 v. 18-1860 18 NAC 19 WILLIAM P. BARR, UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONERS: Gary J. Yerman, Esq., New York, 25 NY. 26 27 FOR RESPONDENT: Ethan P. Davis, Acting Assistant 28 Attorney General; Leslie McKay, 1 Senior Litigation Counsel; 2 Madeline Henley, Trial Attorney, 3 Office of Immigration Litigation, 4 United States Department of 5 Justice, Washington, DC.
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioners Raju Puncho Gurung and Sujan Gurung,
11 natives and citizens of Nepal, seek review of a May 25,
12 2018, decision of the BIA affirming a July 19, 2017,
13 decision of an Immigration Judge (“IJ”) denying Raju Puncho
14 Gurung’s application for asylum, withholding of removal,
15 and relief under the Convention Against Torture (“CAT”).
16 In re Raju Puncho Gurung, Sujan Gurung, No. A 201 125
17 997/998 (B.I.A. May 25, 2018), aff’g No. A 201 125 997/998
18 (Immig. Ct. N.Y. City July 19, 2017). We assume the
19 parties’ familiarity with the underlying facts and
20 procedural history.
21 Under the circumstances of this case, we have reviewed
22 both the IJ’s and BIA’s decisions “for the sake of
23 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448
24 F.3d 524, 528 (2d Cir. 2006). The applicable standards of 2 1 review are well established. See 8 U.S.C. § 1252(b)(4)(B);
2 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009)
3 (reviewing factual findings for substantial evidence and
4 questions of law and the application of law to undisputed
5 facts de novo).
6 To establish asylum eligibility, an applicant must show
7 that he has suffered past persecution, or has a well-
8 founded fear of future persecution, on account of race,
9 religion, nationality, membership in a particular social
10 group, or political opinion. See 8 U.S.C. § 1101(a)(42).
11 If the applicant is found to have suffered past
12 persecution, he is “presumed to have a well-founded fear of
13 future persecution on the basis of the original claim.” 8
14 C.F.R. § 1208.13(b)(1).
15 Past Persecution
16 The agency did not err in concluding that Gurung failed
17 to show that he suffered past persecution at the hands of
18 the Maoists. “[P]ersecution is ‘an extreme concept that
19 does not include every sort of treatment our society
20 regards as offensive.’” Mei Fun Wong v. Holder, 633 F.3d
21 64, 72 (2d Cir. 2011) (quoting Ai Feng Yuan v. U.S. Dep’t
3 1 of Justice, 416 F.3d 192, 198 (2d Cir. 2005)). Persecution
2 may “encompass[] a variety of forms of adverse treatment,
3 including non-life-threatening violence and physical
4 abuse,” but the harm must be sufficiently severe, rising
5 above “mere harassment.” Ivanishvili v. U.S. Dep’t of
6 Justice, 433 F.3d 332, 341 (2d Cir. 2006) (internal
7 quotation marks and brackets omitted). “‘[T]he difference
8 between harassment and persecution is necessarily one of
9 degree,’ . . . [and] the degree must be assessed with
10 regard to the context in which the mistreatment occurs.”
11 Beskovic v. Gonzales, 467 F.3d 223, 226 (2d Cir. 2006)
12 (quoting Ivanishvili, 433 F.3d at 341). In evaluating a
13 past persecution claim, the agency must consider the harm
14 suffered in the aggregate. Poradisova v. Gonzales, 420
15 F.3d 70, 79–80 (2d Cir. 2005).
16 The agency did not err in finding that Gurung’s past
17 harm did not rise to the level of persecution because he
18 testified to only one incident of physical harm and
19 provided little detail regarding the attack or his
20 injuries. While Gurung testified that Maoists threw rocks
21 at his group of protestors in 2006, he escaped without
4 1 harm. The only physical harm he suffered was in December
2 2009, when he was pushed and kicked. He provided little
3 detail and appears to have sustained only a minor injury.
4 Accordingly, the agency did not err in concluding that
5 these incidents did not rise to the level of persecution.
6 See Jian Qiu Liu v. Holder, 632 F.3d 820, 822 (2d Cir.
7 2011) (finding no error in agency’s decision that harm did
8 not rise to the level of persecution where applicant,
9 “prior to his arrest and detention[,] . . . suffered only
10 minor bruising from an altercation with family planning
11 officials, which required no formal medical attention and
12 had no lasting physical effect”).
13 Moreover, the Maoists’ threats against Gurung’s parents
14 do not constitute past persecution of Gurung. See Tao
15 Jiang v. Gonzales, 500 F.3d 137, 141 (2d Cir. 2007) (“As a
16 general principle, an asylum applicant cannot claim past
17 persecution based solely on harm that was inflicted on a
18 family member on account of that family member’s political
19 opinion or other protected characteristic.”). And a letter
20 threatening Gurung that was delivered to his parent’s home
21 was not a sufficiently imminent threat so as to constitute
5 1 past persecution. See Scarlett v. Barr, 957 F.3d 316, 328
2 (2d Cir. 2020) (“[U]nfulfilled threats alone generally do
3 not rise to the level of persecution. To warrant a
4 different conclusion, an applicant must adduce objective
5 evidence that the threat was so imminent or concrete, or so
6 menacing as itself to cause actual suffering or harm.”
7 (internal citations and quotation marks omitted)). Given
8 the single, minor incident of physical harm and the one
9 threatening letter, the agency did not err in determining
10 that the cumulative harm did not rise to the level of
11 persecution. See Mei Fun Wong, 633 F.3d at 72.
12 Fear of Future Persecution
13 Absent a finding of past persecution, an applicant may
14 establish asylum eligibility based on a fear of future
15 persecution, but the applicant must show that “he
16 subjectively fears persecution and establish that his fear
17 is objectively reasonable.” Ramsameachire v. Ashcroft, 357
18 F.3d 169, 178 (2d Cir. 2004). Although a fear may be
19 objectively reasonable “even if there is only a slight,
20 though discernible, chance of persecution,” Diallo v. INS,
21 232 F.3d 279, 284 (2d Cir. 2000), a fear is not objectively
6 1 reasonable if it lacks “solid support” in the record and is
2 merely “speculative at best,” Jian Xing Huang v. U.S. INS,
3 421 F.3d 125, 129 (2d Cir. 2005). The agency did not err
4 in determining that Gurung did not have an objectively
5 reasonable fear of future persecution.
6 First, there is minimal record support for his claim
7 that Maoists remain interested in him. A 2016 letter from
8 a leader of a district development society states that
9 Maoists still want revenge against Gurung, but the letter
10 does not provide any basis for that information.
11 Additionally, Gurung did not testify that the Maoists have
12 looked for him since January 2010. And he conceded that he
13 has not been politically active in the United States.
14 Second, the fact that the Maoists have not followed
15 through on threats against Gurung’s family despite his
16 father’s alleged support for the monarchy weighs against a
17 finding that Gurung has an objectively reasonable fear of
18 future persecution. See Melgar de Torres v. Reno, 191 F.3d
19 307, 313 (2d Cir. 1999) (applicant’s claimed fear of future
20 persecution is weakened when similarly situated family
21 members continue to live unharmed in petitioner’s native
7 1 country).
2 Finally, there is limited support for Gurung’s claim
3 that some Maoists continue to persecute people who do not
4 support their political position. Gurung points to a 2010
5 U.S. State Department Report identifying a Maoist attack on
6 a district president, but this one incident from 2009 that
7 involved a district president from a different political
8 party does not establish that Gurung would be singled out
9 for his pro-monarchy political opinion. See 8 C.F.R.
10 § 1208.13(b)(2)(iii). While this 2010 report notes reports
11 of incidents of torture by Maoists, it does not identify
12 the type of victims. And although a later report from 2013
13 states that a breakaway faction of the Maoist party
14 committed acts of violence, it is insufficient to show that
15 Gurung would be singled out for persecution because it does
16 not detail the frequency of the violence or reflect that
17 Maoists are targeting their political opponents. Several
18 additional sources address issues related to holding
19 Maoists accountable for violence during the civil war but
20 do not discuss ongoing Maoist violence. Accordingly,
21 Gurung’s country conditions evidence does not support his
8 1 claim that Maoists would single him out for persecution.
2 See Jian Xing Huang, 421 F.3d at 129.
3 In sum, the agency did not err in determining that
4 Gurung failed to state a well-founded fear of future
5 persecution because he did not establish that Maoists
6 continue to be interested in him, his family has remained
7 unharmed in Nepal, and the country conditions evidence does
8 not reflect that similarly-situated individuals are singled
9 out for harm. See id. Gurung’s failure to meet his burden
10 for asylum is also dispositive of withholding of removal
11 and CAT protection, which carry a higher burden. See Lecaj
12 v. Holder, 616 F.3d 111, 119 (2d Cir. 2010).
13 For the foregoing reasons, the petition for review is
14 DENIED. All pending motions and applications are DENIED
15 and stays VACATED.
16 FOR THE COURT: 17 Catherine O’Hagan Wolfe, 18 Clerk of Court 19