18-2796 Kandel v. Barr BIA Nelson, IJ A205 726 059 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 30th day of October, two thousand twenty. 5 6 PRESENT: 7 JON O. NEWMAN, 8 JOHN M. WALKER, JR., 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 YAM LAL KANDEL, 14 Petitioner, 15 16 v. 18-2796 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Jason Schaffer, Mungoven & 24 Associates, P.C., New York, NY. 25 26 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 27 General; Derek C. Julius, 28 Assistant Director; Regina Byrd, 1 Trial Attorney, Office of 2 Immigration Litigation, United 3 States Department of Justice, 4 Washington, DC.
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Yam Lal Kandel, a native and citizen of Nepal,
10 seeks review of an August 23, 2018, decision of the BIA
11 affirming an August 9, 2017, decision of an Immigration Judge
12 (“IJ”) denying Kandel’s application for asylum, withholding
13 of removal, and relief under the Convention Against Torture
14 (“CAT”). In re Yam Lal Kandel, No. A 205 726 059 (B.I.A. Aug.
15 23, 2018), aff’g No. A 205 726 059 (Immig. Ct. N.Y. City Aug.
16 9, 2017). We assume the parties’ familiarity with the
17 underlying facts and procedural history.
18 In lieu of filing a brief, the Government moves for
19 summary denial of Kandel’s petition for review. Summary
20 denial is warranted only if a petition is frivolous. See
21 Pillay v. INS, 45 F.3d 14, 17 (2d Cir. 1995). We decline to
22 address whether this petition is frivolous. Kandel has filed
23 his merits brief, and so we treat the Government’s motion as
2 1 a response to that brief.
2 Under the circumstances of this case, we have reviewed
3 both the BIA’s and IJ’s decisions “for the sake of
4 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
5 524, 528 (2d Cir. 2006). The applicable standards of review
6 are well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin
7 Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009) (reviewing
8 factual findings for substantial evidence and questions of
9 law and the application of law to undisputed facts de novo).
10 To establish asylum eligibility, an applicant must show
11 that he has suffered past persecution, or has a well-founded
12 fear of future persecution, on account of a protected ground.
13 See 8 U.S.C. § 1101(a)(42). If the applicant is found to
14 have suffered past persecution, he is presumed to have a well-
15 founded fear of future persecution on the basis of the
16 original claim. 8 C.F.R. § 1208.13(b)(1). Kandel alleged
17 that Maoists assaulted him in 2004 because he supported the
18 Nepali Congress Party and that they would harm him again if
19 he returns to Nepal. As set forth below, the agency did not
20 err in denying asylum and withholding of removal because
21 Kandel’s past harm did not rise to the level of persecution
3 1 and he did not establish that he could not reasonably relocate
2 withing Nepal.
3 Past Persecution
4 “[P]ersecution is ‘an extreme concept that does not
5 include every sort of treatment our society regards as
6 offensive.’” Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d
7 Cir. 2011) (quoting Ai Feng Yuan v. U.S. Dep’t of Justice,
8 416 F.3d 192, 198 (2d Cir. 2005)). Persecution may
9 “encompass[] a variety of forms of adverse treatment,
10 including non-life-threatening violence and physical abuse,”
11 but the harm must be sufficiently severe, rising above “mere
12 harassment.” Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d
13 332, 341 (2d Cir. 2006) (internal quotation marks and brackets
14 omitted). “‘[T]he difference between harassment and
15 persecution is necessarily one of degree,’ . . . the degree
16 must be assessed with regard to the context in which the
17 mistreatment occurs.” Beskovic v. Gonzales, 467 F.3d 223,
18 226 (2d Cir. 2006) (quoting Ivanishvili, 433 F.3d at 341).
19 The agency did not err in finding that Kandel’s past harm
20 did not rise to the level of persecution because there was
21 only one attack, it lasted approximately a minute, and Kandel
4 1 did not require any medical attention after this incident.
2 See Jian Qiu Liu v. Holder, 632 F.3d 820, 822 (2d Cir. 2011)
3 (upholding agency’s decision that applicant did not suffer
4 past persecution when, “prior to his arrest and detention by
5 local police, he suffered only minor bruising . . . , which
6 required no formal medical attention and had no lasting
7 physical effect”); cf. Beskovic, 467 F.3d at 226 (“The BIA
8 must, therefore, be keenly sensitive to the fact that a ‘minor
9 beating’ or, for that matter, any physical degradation
10 designed to cause pain, humiliation, or other suffering, may
11 rise to the level of persecution if it occurred in the context
12 of an arrest or detention on the basis of a protected
13 ground.”). Moreover, although Kandel testified that his wife
14 was assaulted in 2016, her harm is not persecution of him,
15 particularly as he was in the United States when this alleged
16 incident occurred. See Tao Jiang v. Gonzales, 500 F.3d 137,
17 141 (2d Cir. 2007) (“As a general principle, an asylum
18 applicant cannot claim past persecution based solely on harm
19 that was inflicted on a family member on account of that
20 family member’s political opinion or other protected
21 characteristic.”).
5 1 Fear of Future Persecution
2 Absent a finding of past persecution, an applicant may
3 establish asylum eligibility based on a fear of future
4 persecution, but the applicant must show that “he
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18-2796 Kandel v. Barr BIA Nelson, IJ A205 726 059 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 30th day of October, two thousand twenty. 5 6 PRESENT: 7 JON O. NEWMAN, 8 JOHN M. WALKER, JR., 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 YAM LAL KANDEL, 14 Petitioner, 15 16 v. 18-2796 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Jason Schaffer, Mungoven & 24 Associates, P.C., New York, NY. 25 26 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 27 General; Derek C. Julius, 28 Assistant Director; Regina Byrd, 1 Trial Attorney, Office of 2 Immigration Litigation, United 3 States Department of Justice, 4 Washington, DC.
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Yam Lal Kandel, a native and citizen of Nepal,
10 seeks review of an August 23, 2018, decision of the BIA
11 affirming an August 9, 2017, decision of an Immigration Judge
12 (“IJ”) denying Kandel’s application for asylum, withholding
13 of removal, and relief under the Convention Against Torture
14 (“CAT”). In re Yam Lal Kandel, No. A 205 726 059 (B.I.A. Aug.
15 23, 2018), aff’g No. A 205 726 059 (Immig. Ct. N.Y. City Aug.
16 9, 2017). We assume the parties’ familiarity with the
17 underlying facts and procedural history.
18 In lieu of filing a brief, the Government moves for
19 summary denial of Kandel’s petition for review. Summary
20 denial is warranted only if a petition is frivolous. See
21 Pillay v. INS, 45 F.3d 14, 17 (2d Cir. 1995). We decline to
22 address whether this petition is frivolous. Kandel has filed
23 his merits brief, and so we treat the Government’s motion as
2 1 a response to that brief.
2 Under the circumstances of this case, we have reviewed
3 both the BIA’s and IJ’s decisions “for the sake of
4 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
5 524, 528 (2d Cir. 2006). The applicable standards of review
6 are well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin
7 Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009) (reviewing
8 factual findings for substantial evidence and questions of
9 law and the application of law to undisputed facts de novo).
10 To establish asylum eligibility, an applicant must show
11 that he has suffered past persecution, or has a well-founded
12 fear of future persecution, on account of a protected ground.
13 See 8 U.S.C. § 1101(a)(42). If the applicant is found to
14 have suffered past persecution, he is presumed to have a well-
15 founded fear of future persecution on the basis of the
16 original claim. 8 C.F.R. § 1208.13(b)(1). Kandel alleged
17 that Maoists assaulted him in 2004 because he supported the
18 Nepali Congress Party and that they would harm him again if
19 he returns to Nepal. As set forth below, the agency did not
20 err in denying asylum and withholding of removal because
21 Kandel’s past harm did not rise to the level of persecution
3 1 and he did not establish that he could not reasonably relocate
2 withing Nepal.
3 Past Persecution
4 “[P]ersecution is ‘an extreme concept that does not
5 include every sort of treatment our society regards as
6 offensive.’” Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d
7 Cir. 2011) (quoting Ai Feng Yuan v. U.S. Dep’t of Justice,
8 416 F.3d 192, 198 (2d Cir. 2005)). Persecution may
9 “encompass[] a variety of forms of adverse treatment,
10 including non-life-threatening violence and physical abuse,”
11 but the harm must be sufficiently severe, rising above “mere
12 harassment.” Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d
13 332, 341 (2d Cir. 2006) (internal quotation marks and brackets
14 omitted). “‘[T]he difference between harassment and
15 persecution is necessarily one of degree,’ . . . the degree
16 must be assessed with regard to the context in which the
17 mistreatment occurs.” Beskovic v. Gonzales, 467 F.3d 223,
18 226 (2d Cir. 2006) (quoting Ivanishvili, 433 F.3d at 341).
19 The agency did not err in finding that Kandel’s past harm
20 did not rise to the level of persecution because there was
21 only one attack, it lasted approximately a minute, and Kandel
4 1 did not require any medical attention after this incident.
2 See Jian Qiu Liu v. Holder, 632 F.3d 820, 822 (2d Cir. 2011)
3 (upholding agency’s decision that applicant did not suffer
4 past persecution when, “prior to his arrest and detention by
5 local police, he suffered only minor bruising . . . , which
6 required no formal medical attention and had no lasting
7 physical effect”); cf. Beskovic, 467 F.3d at 226 (“The BIA
8 must, therefore, be keenly sensitive to the fact that a ‘minor
9 beating’ or, for that matter, any physical degradation
10 designed to cause pain, humiliation, or other suffering, may
11 rise to the level of persecution if it occurred in the context
12 of an arrest or detention on the basis of a protected
13 ground.”). Moreover, although Kandel testified that his wife
14 was assaulted in 2016, her harm is not persecution of him,
15 particularly as he was in the United States when this alleged
16 incident occurred. See Tao Jiang v. Gonzales, 500 F.3d 137,
17 141 (2d Cir. 2007) (“As a general principle, an asylum
18 applicant cannot claim past persecution based solely on harm
19 that was inflicted on a family member on account of that
20 family member’s political opinion or other protected
21 characteristic.”).
5 1 Fear of Future Persecution
2 Absent a finding of past persecution, an applicant may
3 establish asylum eligibility based on a fear of future
4 persecution, but the applicant must show that “he
5 subjectively fears persecution and establish that his fear is
6 objectively reasonable.” Ramsameachire v. Ashcroft, 357 F.3d
7 169, 178 (2d Cir. 2004). Although a fear may be objectively
8 reasonable “even if there is only a slight, though
9 discernible, chance of persecution,” Diallo v. INS, 232 F.3d
10 279, 284 (2d Cir. 2000), a fear is not objectively reasonable
11 if it lacks “solid support” in the record and is merely
12 “speculative at best,” Jian Xing Huang v. U.S. INS, 421 F.3d
13 125, 129 (2d Cir. 2005). An applicant has not established a
14 well-founded fear of future persecution “if the applicant
15 could avoid persecution by relocating to another part of the
16 applicant’s country of nationality . . . if under all the
17 circumstances it would be reasonable to expect the applicant
18 to do so.” 8 C.F.R. § 1208.13(b)(2)(ii); see id.
19 § 1208.13(b)(3)(i) (“In cases in which the applicant has not
20 established past persecution, the applicant shall bear the
21 burden of establishing that it would not be reasonable for
6 1 him or her to relocate, unless the persecution is by a
2 government or is government-sponsored.”). In determining
3 whether internal relocation is reasonable, the agency
4 “consider[s] . . . whether the applicant would face other
5 serious harm in the place of suggested relocation; any ongoing
6 civil strife within the country; administrative, economic, or
7 judicial infrastructure; geographical limitations; and social
8 and cultural constraints, such as age, gender, health, and
9 social and familial ties.” Id. § 1208.13(b)(3). As the
10 Government argues, the agency did not err in concluding that
11 Kandel failed to establish that internal relocation was
12 unreasonable.
13 The agency reasonably determined that Kandel could
14 internally relocate within Nepal because he lived unharmed in
15 Kathmandu for approximately a year between his return from
16 Saudi Arabia in March 2011 and his departure for the United
17 States in March 2012. The agency reasonably determined that
18 the higher cost of living in Kathmandu did not preclude Kandel
19 from relocating his family when Kandel previously afforded
20 living in Kathmandu and Kandel could also relocate to another
21 area of Nepal that was less expensive. Although Kandel
7 1 testified that he could not live in Kathmandu because the
2 Maoists would find him, the agency was not required to accept
3 this assertion because the Maoists had not previously found
4 him while he was living in Kathmandu. Moreover, the country
5 conditions evidence does not show that Maoists are currently
6 engaged in violent acts against Nepali Congress Party
7 supporters. Kandel’s evidence includes an article reporting
8 that a Maoist leader sided with members of the Nepali Congress
9 Party in supporting the new constitution, and other articles
10 discussing a power sharing deal between the Maoist party and
11 the Nepali Congress Party. There is limited evidence
12 regarding a breakaway Maoist faction, and no evidence that
13 they have targeted Nepali Congress Party members. See Jian
14 Xing Huang, 421 F.3d at 129 (holding that a fear is not
15 objectively reasonable if it lacks “solid support” in the
16 record).
17 In sum, because Kandel did not suffer past harm rising
18 to the level of persecution or show that relocation was
19 unreasonable, he did not meet his burden for asylum or
20 withholding of removal. See 8 C.F.R. § 1208.13(b)(1),
21 (b)(2)(ii); Lecaj v. Holder, 616 F.3d 111, 119 (2d Cir. 2010).
8 1 Kandel does not challenge the denial of CAT relief.
2 For the foregoing reasons, the petition for review is
3 DENIED. All pending motions and applications are DENIED and
4 stays VACATED.
5 FOR THE COURT: 6 Catherine O’Hagan Wolfe, 7 Clerk of Court 8