18-3393 Sherpa v. Barr BIA Thompson, IJ A206 503 826 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 7th day of December, two thousand twenty. 5 6 PRESENT: 7 DEBRA ANN LIVINGSTON, 8 Chief Judge, 9 GUIDO CALABRESI, 10 ROBERT A. KATZMANN, 11 Circuit Judges. 12 _____________________________________ 13 14 CHHIREE SHERPA, AKA CITHIREE 15 SHERPA, 16 Petitioner, 17 18 v. 18-3393 19 NAC 20 WILLIAM P. BARR, UNITED STATES 21 ATTORNEY GENERAL, 22 Respondent. 23 _____________________________________ 24 25 FOR PETITIONER: Gary J. Yerman, Esq., New York, 26 NY. 27 28 1 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 2 Assistant Attorney General; 3 Lindsay B. Glauner, Senior 4 Litigation Counsel; Craig A. 5 Newell, Jr., Trial Attorney, 6 Office of Immigration Litigation, 7 United States Department of 8 Justice, Washington, DC.
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DENIED.
13 Petitioner Chhiree Sherpa, a native and citizen of Nepal,
14 seeks review of an October 11, 2018 decision of the BIA
15 affirming a September 25, 2017 decision of an Immigration
16 Judge (“IJ”) denying Sherpa’s application for asylum,
17 withholding of removal, and relief under the Convention
18 Against Torture (“CAT”). In re Chhiree Sherpa, No. A206 503
19 826 (B.I.A. Oct. 11, 2018), aff’g No. A206 503 826 (Immig.
20 Ct. N.Y.C. Sept. 25, 2017). We assume the parties’
21 familiarity with the underlying facts and procedural history.
22 We have reviewed both the IJ’s and BIA’s decisions “for
23 the sake of completeness.” Wangchuck v. DHS, 448 F.3d 524,
24 528 (2d Cir. 2006). The applicable standards of review are
25 well established. See 8 U.S.C. § 1252(b)(4)(B); Lecaj v.
2 1 Holder, 616 F.3d 111, 114 (2d Cir. 2010) (noting that this
2 Court reviews factual findings under the substantial evidence
3 standard and questions of law, “including mixed questions of
4 law and fact and the application of law to fact,” de novo).
5 An asylum applicant has the burden to establish past
6 persecution or a well-founded fear of persecution on account
7 of “race, religion, nationality, membership in a particular
8 social group, or political opinion.” 8 U.S.C.
9 § 1158(b)(1)(i); Cao He Lin v. U.S. Dep’t of Just., 428 F.3d
10 391, 398 (2d Cir. 2005). “A showing of past persecution sets
11 up a rebuttable presumption of a well-founded fear of future
12 persecution . . . .” Cao He Lin, 428 F.3d at 399 (internal
13 quotation marks omitted); see also 8 C.F.R. § 1208.13(b)(1).
14 “That presumption may be rebutted” where the Government
15 establishes by a preponderance of the evidence that “[t]here
16 has been a fundamental change in circumstances such that the
17 applicant no longer has a well-founded fear of persecution”
18 or that “[t]he applicant could avoid future persecution by
19 relocating to another part of the applicant’s country . . .
20 and under all the circumstances, it would be reasonable to
21 expect the applicant to do so.” 8 C.F.R. § 1208.13(b)(1) &
22 (b)(1)(i)(A)–(B); see id. § 1208.13(b)(1)(ii). 3 1 Here, we need not address the agency’s finding that
2 Sherpa failed to establish past persecution because, even
3 assuming he did, the agency’s findings of changed conditions
4 and ability to relocate are dispositive. See INS v.
5 Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule[,]
6 courts and agencies are not required to make findings on
7 issues the decision of which is unnecessary to the results
8 they reach.”).
9 I. Fundamental Change in Country Conditions
10 The record supports the IJ’s conclusion that there has
11 been a fundamental change in conditions in Nepal and that
12 Sherpa no longer has an objectively reasonable fear that the
13 Maoists will persecute him because of his involvement with
14 the Nepali Congress party (“NC”). The IJ addressed the 2016
15 State Department report in the record and took administrative
16 notice of State Department reports from 2013 forward, noting
17 that they reflected continuing improvements, free and fair
18 elections in 2013, and the election of a Prime Minister from
19 the NC. See Chhetry v. U.S. Dep’t of Just., 490 F.3d 196,
20 199–200 (2d Cir. 2007) (noting that the agency may take
21 administrative notice of country conditions evidence). The
22 IJ acknowledged incidents of violence surrounding elections 4 1 but also noted an overall decrease in violence. The 2016
2 State Department report discusses developments in outstanding
3 “conflict-era cases” that arose from killings,
4 disappearances, and land seizures during the Maoist
5 insurgency, which ended in 2006, but the report does not
6 reflect current political violence by Maoists towards the NC,
7 apart from violence by a “breakaway faction” during the 2013
8 elections.
9 Moreover, a 2015 report that Sherpa presented from the
10 Immigration and Refugee Board of Canada provides that Maoist
11 violence had been decreasing since 2006, that instances of
12 violence were not common, and that while criminal activities
13 such as extortion were ongoing by factions in some areas, the
14 targets of extortion were individuals with money, not
15 political opponents. Given the end of the Maoist insurgency,
16 a continuing decrease in violence since that time, and the
17 absence of continued targeting of NC members by Maoists, the
18 agency did not err in finding that there had been a
19 fundamental change in conditions.
20 Contrary to Sherpa’s argument that the Government failed
21 to meet its burden to establish a fundamental change in
22 circumstances because it did not proffer any country 5 1 conditions evidence, the Government need not present
2 additional or duplicative country conditions evidence where,
3 as here, the record evidence itself shows such a change. See
4 Passi v. Mukasey,
Free access — add to your briefcase to read the full text and ask questions with AI
18-3393 Sherpa v. Barr BIA Thompson, IJ A206 503 826 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 7th day of December, two thousand twenty. 5 6 PRESENT: 7 DEBRA ANN LIVINGSTON, 8 Chief Judge, 9 GUIDO CALABRESI, 10 ROBERT A. KATZMANN, 11 Circuit Judges. 12 _____________________________________ 13 14 CHHIREE SHERPA, AKA CITHIREE 15 SHERPA, 16 Petitioner, 17 18 v. 18-3393 19 NAC 20 WILLIAM P. BARR, UNITED STATES 21 ATTORNEY GENERAL, 22 Respondent. 23 _____________________________________ 24 25 FOR PETITIONER: Gary J. Yerman, Esq., New York, 26 NY. 27 28 1 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 2 Assistant Attorney General; 3 Lindsay B. Glauner, Senior 4 Litigation Counsel; Craig A. 5 Newell, Jr., Trial Attorney, 6 Office of Immigration Litigation, 7 United States Department of 8 Justice, Washington, DC.
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DENIED.
13 Petitioner Chhiree Sherpa, a native and citizen of Nepal,
14 seeks review of an October 11, 2018 decision of the BIA
15 affirming a September 25, 2017 decision of an Immigration
16 Judge (“IJ”) denying Sherpa’s application for asylum,
17 withholding of removal, and relief under the Convention
18 Against Torture (“CAT”). In re Chhiree Sherpa, No. A206 503
19 826 (B.I.A. Oct. 11, 2018), aff’g No. A206 503 826 (Immig.
20 Ct. N.Y.C. Sept. 25, 2017). We assume the parties’
21 familiarity with the underlying facts and procedural history.
22 We have reviewed both the IJ’s and BIA’s decisions “for
23 the sake of completeness.” Wangchuck v. DHS, 448 F.3d 524,
24 528 (2d Cir. 2006). The applicable standards of review are
25 well established. See 8 U.S.C. § 1252(b)(4)(B); Lecaj v.
2 1 Holder, 616 F.3d 111, 114 (2d Cir. 2010) (noting that this
2 Court reviews factual findings under the substantial evidence
3 standard and questions of law, “including mixed questions of
4 law and fact and the application of law to fact,” de novo).
5 An asylum applicant has the burden to establish past
6 persecution or a well-founded fear of persecution on account
7 of “race, religion, nationality, membership in a particular
8 social group, or political opinion.” 8 U.S.C.
9 § 1158(b)(1)(i); Cao He Lin v. U.S. Dep’t of Just., 428 F.3d
10 391, 398 (2d Cir. 2005). “A showing of past persecution sets
11 up a rebuttable presumption of a well-founded fear of future
12 persecution . . . .” Cao He Lin, 428 F.3d at 399 (internal
13 quotation marks omitted); see also 8 C.F.R. § 1208.13(b)(1).
14 “That presumption may be rebutted” where the Government
15 establishes by a preponderance of the evidence that “[t]here
16 has been a fundamental change in circumstances such that the
17 applicant no longer has a well-founded fear of persecution”
18 or that “[t]he applicant could avoid future persecution by
19 relocating to another part of the applicant’s country . . .
20 and under all the circumstances, it would be reasonable to
21 expect the applicant to do so.” 8 C.F.R. § 1208.13(b)(1) &
22 (b)(1)(i)(A)–(B); see id. § 1208.13(b)(1)(ii). 3 1 Here, we need not address the agency’s finding that
2 Sherpa failed to establish past persecution because, even
3 assuming he did, the agency’s findings of changed conditions
4 and ability to relocate are dispositive. See INS v.
5 Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule[,]
6 courts and agencies are not required to make findings on
7 issues the decision of which is unnecessary to the results
8 they reach.”).
9 I. Fundamental Change in Country Conditions
10 The record supports the IJ’s conclusion that there has
11 been a fundamental change in conditions in Nepal and that
12 Sherpa no longer has an objectively reasonable fear that the
13 Maoists will persecute him because of his involvement with
14 the Nepali Congress party (“NC”). The IJ addressed the 2016
15 State Department report in the record and took administrative
16 notice of State Department reports from 2013 forward, noting
17 that they reflected continuing improvements, free and fair
18 elections in 2013, and the election of a Prime Minister from
19 the NC. See Chhetry v. U.S. Dep’t of Just., 490 F.3d 196,
20 199–200 (2d Cir. 2007) (noting that the agency may take
21 administrative notice of country conditions evidence). The
22 IJ acknowledged incidents of violence surrounding elections 4 1 but also noted an overall decrease in violence. The 2016
2 State Department report discusses developments in outstanding
3 “conflict-era cases” that arose from killings,
4 disappearances, and land seizures during the Maoist
5 insurgency, which ended in 2006, but the report does not
6 reflect current political violence by Maoists towards the NC,
7 apart from violence by a “breakaway faction” during the 2013
8 elections.
9 Moreover, a 2015 report that Sherpa presented from the
10 Immigration and Refugee Board of Canada provides that Maoist
11 violence had been decreasing since 2006, that instances of
12 violence were not common, and that while criminal activities
13 such as extortion were ongoing by factions in some areas, the
14 targets of extortion were individuals with money, not
15 political opponents. Given the end of the Maoist insurgency,
16 a continuing decrease in violence since that time, and the
17 absence of continued targeting of NC members by Maoists, the
18 agency did not err in finding that there had been a
19 fundamental change in conditions.
20 Contrary to Sherpa’s argument that the Government failed
21 to meet its burden to establish a fundamental change in
22 circumstances because it did not proffer any country 5 1 conditions evidence, the Government need not present
2 additional or duplicative country conditions evidence where,
3 as here, the record evidence itself shows such a change. See
4 Passi v. Mukasey, 535 F.3d 98, 101–02 (2d Cir. 2008)
5 (explaining that the agency may consider State Department
6 reports so long as it conducts an individualized analysis as
7 to how changed conditions would affect the petitioner’s
8 situation); see also Singh v. Barr, 920 F.3d 255, 260 (5th
9 Cir. 2019) (“[T]he argument that the DHS must affirmatively
10 submit its own documentary evidence . . . is belied by the
11 text of the regulation, which simply requires the DHS to rebut
12 the presumption by the preponderance of the evidence, not by
13 its evidence.” (emphases in original)).
14 II. Safe Internal Relocation
15 The agency also did not err in concluding that Sherpa
16 could safely relocate within Nepal. Sherpa’s own testimony
17 satisfied the Government’s burden to show that he could safely
18 relocate. See 8 C.F.R. § 1208.13(b)(1)(ii). Apart from four
19 or five threatening telephone calls, Sherpa lived unharmed in
20 Kathmandu from 2008 until he came to the United States in
21 2013. Although he stated in his application and argues here
22 that he was in hiding in Kathmandu between 2008 and 2011, he 6 1 testified that he openly participated in NC activities. This
2 evidence that Sherpa lived unharmed in Kathmandu for five
3 years while engaged in political activities for the NC rebuts
4 any presumption that he has an objectively reasonable fear of
5 persecution by the Maoists. See Jian Xing Huang v. U.S. INS,
6 421 F.3d 125, 128–29 (2d Cir. 2005) (explaining that a fear
7 is not objectively reasonable where it lacks “solid support”
8 in the record and is merely “speculative at best”).
9 Because Sherpa’s withholding of removal and CAT claims
10 rest on the same factual basis as his asylum claim, the
11 agency’s determinations that country conditions had
12 fundamentally changed and that he could safely relocate are
13 dispositive of those claims as well. See Lecaj, 616 F.3d at
14 119–20 (holding that an applicant who fails to establish the
15 fear of harm required for a grant of asylum “necessarily”
16 fails to meet the higher standard for withholding of removal
17 and CAT relief).
18 For the foregoing reasons, the petition for review is
19 DENIED. All pending motions and applications are DENIED and
20 stays VACATED.
21 FOR THE COURT: 22 Catherine O’Hagan Wolfe, 23 Clerk of Court 7