Regmi v. Barr

Opinion

18-2327 Regmi v. Barr BIA

Christensen, IJ

A206 180 902

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 4th day of November, two thousand twenty. 5 6 PRESENT: 7 DEBRA ANN LIVINGSTON, 8 Chief Judge, 9 DENNY CHIN, 10 SUSAN L. CARNEY, 11 Circuit Judges. 12 _____________________________________ 13 14 JIT BAHADUR REGMI, 15 Petitioner, 16 17 v. 18-2327 18 NAC 19 WILLIAM P. BARR, UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Khagendra Gharti-Chhetry, New 25 York, NY. 26 27 FOR RESPONDENT: Joseph H. Hunt, Assistant 28 Attorney General; Carl McIntyre, 29 Assistant Director; Brooke Marie

2

1 Maurer, Trial Attorney, Office of 2 Immigration Litigation, United 3 States Department of Justice, 4 Washington, DC. 5 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 Petitioner Jit Bahadur Regmi, a native and citizen of 11 Nepal, seeks review of a July 16 2018, decision of the BIA 12 affirming an August 10, 2017, decision of an Immigration Judge 13 (“IJ”) denying his application for asylum, withholding of 14 removal, and relief under the Convention Against Torture 15 (“CAT”). In re Jit Bahadur Regmi, No. A206 180 902 (B.I.A. 16 Jul. 16, 2018), aff’g No. A206 180 902 (Immig. Ct. N.Y. City 17 Aug. 10, 2017). We assume the parties’ familiarity with the 18 underlying facts and procedural history. 19 Under the circumstances of this case, we have reviewed 20 the IJ’s decision as modified by the BIA, i.e., minus the 21 internal relocation finding that the BIA did not reach. See 22 Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d 23 Cir. 2005). The applicable standards of review are well 24 established. See 8 U.S.C. § 1252(b)(4)(B); Lecaj v. Holder, 25 616 F.3d 111, 114 (2d Cir. 2010).

3

1 I. Fundamental Change in Country Conditions 2 It is undisputed that Regmi established that he suffered 3 past persecution in Nepal by members of the Nepal Communist 4 Party-Maoist (“Maoists”) on account of his membership in the 5 rival Nepali Congress Party (“NCP”). Accordingly, he 6 benefits from a presumption of a well-founded fear of future 7 persecution. 8 C.F.R. § 1208.13(b)(1). However, the 8 Government may rebut this presumption if a preponderance of 9 the evidence shows that “[t]here has been a fundamental change 10 in circumstances such that the applicant no longer has a well- 11 founded fear of persecution.” 8 C.F.R. 12 § 1208.13(b)(1)(i)(A), (ii); see also Cao He Lin v. U.S. Dep’t 13 of Justice, 428 F.3d 391, 399 (2d Cir. 2005). The agency 14 “must conduct an individualized analysis of how changed 15 conditions would affect the specific petitioner’s situation.” 16 Passi v. Mukasey, 535 F.3d 98, 102 (2d Cir. 2008) (internal 17 quotation marks omitted). And it must provide a reasoned 18 basis for its finding that the presumption of a well-founded 19 fear of persecution is no longer justified. Niang v. 20 Mukasey, 511 F.3d 138, 149 (2d Cir. 2007). 21 Substantial evidence supports the agency’s conclusion 22 that, at the time of Regmi’s August 2017 hearing, conditions

4

1 in Nepal had fundamentally changed such that he no longer had 2 a well-founded fear of persecution. See 8 U.S.C. 3 § 1252(b)(4)(B) (providing that “the administrative findings 4 of fact are conclusive unless any reasonable adjudicator 5 would be compelled to conclude to the contrary”). The IJ 6 acknowledged that the “transition period” after the end of 7 the Maoist insurgency in 2006 “was not without problems,” 8 including some Maoist violence during elections in 2013. In 9 re Jit Bahadur Regmi, No. A206 180 902 *2 (B.I.A. Jul. 16, 10 2018), aff’g No. A206 180 902 (Immig. Ct. N.Y. City Aug. 10, 11 2017). Nevertheless, the IJ reasonably found that those 12 elections were conducted without major irregularities and the 13 record reflected that apart from a beating in 2010, Regmi had 14 no problems between the end of the insurgency and 2013. Id. 15 Further, the IJ reasonably noted that, after the June 2017 16 elections, the NCP became the largest political party and an 17 NCP official assumed the post of prime minister. Id. The 18 IJ also reasonably relied on a 2015 report of the Canadian 19 Immigration and Refugee Board, which noted a scholarly 20 consensus that violence, kidnapping, and extortion by Maoists 21 had “dramatically decreased.” Id. And, to the extent that 22 Regmi feared violence from a Maoist splinter group known as

5

1 Biplav, the IJ reasonably determined that the country 2 conditions evidence revealed that the authorities were 3 arresting Biplav supporters who committed acts of violence. 4 Id. 5 Regmi argues that the agency’s finding that there has 6 been a fundamental change in country conditions is flawed 7 because Maoists regained control of Nepal in 2018. To the 8 extent that Regmi is asserting that there has been an 9 additional change in conditions, he has not provided any 10 objective evidence of such a change and such evidence should 11 be submitted to the BIA in the first instance in connection 12 with a motion to reopen. See Xiao Xing Ni v. Gonzales, 494 13 F.3d 260, 271 (2d Cir. 2007) (“The mere opportunity to file 14 a motion to reopen means that regardless of the disposition 15 in this Court, a petitioner has the ability to put additional 16 evidence before the agency, and the agency will consider 17 whether to reopen proceedings in light of that evidence.”). 18 Contrary to Regmi’s position, because his CAT claim 19 rested on the same factual basis as his claims for asylum and 20 withholding of removal, the agency’s determination that 21 country conditions had fundamentally changed is dispositive 22 of his CAT claim as well. See Lecaj, 616 F.3d at 119–20

6

1 (holding that applicant who fails to establish fear of harm 2 required for asylum “necessarily” fails to meet higher 3 standard for withholding of removal and CAT relief); see also 4 Paul v. Gonzales, 444 F.3d 148, 157 (2d Cir. 2006) (explaining 5 that CAT claim may fail if its factual basis is the same as 6 that of an asylum claim that lacks credibility). 7 II. Humanitarian Asylum 8 If an asylum applicant can show either “compelling 9 reasons for being unwilling or unable to return to the country 10 arising out of the severity of the past persecution” or that 11 he faces “other serious harm” upon his return, an IJ may grant 12 humanitarian asylum in the absence of a well-founded fear of 13 future persecution. 8 C.F.R. § 1208.13(b)(1)(iii). A grant 14 of humanitarian asylum based on severe past persecution “is 15 reserved for atrocious forms of persecution,” Kone v. Holder, 16 596 F.3d 141, 152 (2d Cir. 2010) (internal quotation marks 17 omitted), and an applicant must demonstrate both “severe 18 harm” and “long-lasting physical or mental effects of his 19 persecution,” Jalloh v. Gonzales, 498 F.3d 148, 151–52 (2d 20 Cir. 2007) (internal quotation marks omitted). 21 Regmi has waived any challenge to the denial of 22 humanitarian asylum by not arguing the issue in his brief.

7

1 See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) 2 (“Issues not sufficiently argued in the briefs are considered 3 waived and normally will not be addressed on appeal.”). In 4 any event, he does not qualify for humanitarian asylum. 5 First, his past persecution, which consisted of beatings on 6 three occasions, does not, in and of itself, justify 7 humanitarian asylum. See Hoxhallari v. Gonzales, 468 F.3d 8 179, 184 (2d Cir. 2006) (upholding denial of humanitarian 9 asylum to petitioner who was beaten and harassed on six 10 occasions); cf. Jalloh, 498 F.3d at 150–52 (having “no reason 11 to doubt” that past persecution was sufficiently severe where 12 a petitioner was beaten, his wife raped, their house burned, 13 and he was held captive for two weeks, during which he was 14 beaten and threatened with death and amputation, but 15 nevertheless upholding the denial of humanitarian asylum 16 because the petitioner provided no evidence of “long-lasting 17 physical or mental effects”). Second, Regmi has not claimed 18 continuing effects of his past persecution. See Jalloh, 498 19 F.3d at 151–52 (“Although we have no reason to doubt the 20 gravity of the dreadful mistreatment that [petitioner] 21 suffered at the hands of his . . . persecutors, [he] provided 22 no evidence of long-lasting physical or mental effects of his

8

1 persecution that would support his insistence that he not be 2 returned . . . .”). Further, he has not established that he 3 will suffer “other serious harm” if returned to Nepal. 8 4 C.F.R. § 1208.13(b)(1)(iii)(B). 5 For the foregoing reasons, the petition for review is 6 DENIED. All pending motions and applications are DENIED and 7 stays VACATED.

8 FOR THE COURT: 9 Catherine O’Hagan Wolfe, 10 Clerk of Court