Pokharel v. Sessions

691 F. App'x 36
CourtCourt of Appeals for the Second Circuit
DecidedMay 31, 2017
Docket16-735
StatusUnpublished

This text of 691 F. App'x 36 (Pokharel v. Sessions) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pokharel v. Sessions, 691 F. App'x 36 (2d Cir. 2017).

Opinion

SUMMARY ORDER

Petitioner Lai Chandra Pokharel, a native and citizen of Nepal, seeks review of a February 19, 2016, decision of the BIA affirming September 16, 2014, decision of an Immigration Judge (“U”) denying asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Lal Chandra Pokharel, No. A205 646 800 (B.I.A Feb. 19, 2016), aff'g No. A205 646 800 (Immig. Ct. Hartford Sept. 16, 2014). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

We have reviewed the IJ’s and the BIA’s decisions “for the sake of completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The applicable standards of review are well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

For asylum, withholding of removal, and CAT relief, “[t]he testimony of [an] applicant may be sufficient to sustain the applicant’s burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant’s testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee.” 8 U.S.C. § 1158(b)(l)(B)(ii); see also 8 U.S.C. § 1231(b)(3)(C); 8 C.F.R. § 1208.16(c)(2). “Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.” 8 U.S.C. § 1158(b)(l)(B)(ii). We find no error in the agency’s conclusions that Pokharel failed to satisfy his burden of proof for asylum, withholding of removal, and CAT relief as to his claims' that Maoists beat him on account of his membership in the Nepali Congress Party, and threatened him if he did not pay them extortion money.

I. Asylum and Withholding of Removal

To establish eligibility, an asylum applicant must show that he or 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).

*38 Past Persecution

“[Persecution 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. 2006)). 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). “ ‘[T]he difference 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). “The [agency] must, therefore, be keenly sensitive to the fact that a ‘minor beating1 or, for that matter, any physical degradation designed to cause pain, humiliation, or other suffering, may rise to the level of persecution if it occurred in the context of an arrest or detention on the basis of a protected ground.” Id.

The agency did not err in concluding that Pokharel failed to establish that a 2004 incident when Maoists beat him rose to the level of persecution. He provided few details in his testimony about the beating and resulting injuries. And he failed to submit evidence from the center that treated him so as to provide a more detailed description of his injuries. Therefore, while this incident was reprehensible, the agency did not err in finding that Pokharel failed to satisfy his burden of establishing that the harm he suffered rose to the level of persecution. See 8 U.S.C. § 1158(b)(1)(B)(ii); see also Beskovic, 467 F.3d at 226; Jian Qiu Liu v. Holder, 632 F.3d 820, 822 (2d Cir. 2011).

Well-Founded Fear of Future Persecution

Absent past persecution, Pokharel had the burden of demonstrating 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. § 1158(b)(l)(B)(i); 8 C.F.R. § 1208.13(a), (b). In order to establish a well-founded fear of future persecution, an applicant must show either a reasonable possibility that he would be singled out for persecution or that the country of removal has a pattern or practice of persecuting individuals similarly situated to him. 8 C.F.R. § 1208.13(b)(2)(iii).

The agency did not err in finding that Pokharel failed to establish a well-founded fear of being singled out for persecution on account of his political opinion. His testimony that he feared returning to his home village based on threats and a false accusation by Maoists in 2008 was not sufficiently credible or persuasive as he failed to provide any details about the incident and his evidence was inconsistent with regard to whether his wife ever returned to their village after 2008. See 8 U.S.C. § 1158(b)(l)(B)(ii). Furthermore,' Pokharel admitted that he had no basis to conclude that a Maoist who threatened him for extortion in Kathmandu in 2012 was motivated by Pokharel’s political opinion, and thus his fear to that extent was not based on a protected ground. See 8 U.S.C, § 1158(b)(1)(B)(i); see INS v. Elias-Zacarias, 5

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Related

Santoso v. Holder
580 F.3d 110 (Second Circuit, 2009)
Chisholm v. Georgia
2 U.S. 419 (Supreme Court, 1793)
Jian Qiu Liu v. Holder
632 F.3d 820 (Second Circuit, 2011)
Mei Fun Wong v. Holder
633 F.3d 64 (Second Circuit, 2011)
Weng v. Holder
562 F.3d 510 (Second Circuit, 2009)
A-M
23 I. & N. Dec. 737 (Board of Immigration Appeals, 2005)
Beskovic v. Gonzales
467 F.3d 223 (Second Circuit, 2006)

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691 F. App'x 36, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pokharel-v-sessions-ca2-2017.