20-3722 Sunar v. Garland BIA Vomacka, IJ A206 882 136 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 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 24th day of October, two thousand twenty- 5 two. 6 7 PRESENT: 8 JON O. NEWMAN, 9 DENNY CHIN, 10 RICHARD J. SULLIVAN, 11 Circuit Judges. 12 _____________________________________ 13 14 TUL PRASAD SUNAR, 15 Petitioner, 16 17 v. 20-3722 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Dilli Raj Bhatta, Esq., Bhatta Law 25 & Associates, New York, NY. 26 27 FOR RESPONDENT: Brian Boynton, Principal Deputy 28 Assistant Attorney General; 29 Gregory D. Mack, Senior Litigation 1 Counsel; Sarah L. Martin, Trial 2 Attorney, Office of Immigration 3 Litigation, United States 4 Department of Justice, Washington, 5 DC. 6 7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals ("BIA") decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioner Tul Prasad Sunar, a native and citizen of
12 Nepal, seeks review of an October 22, 2020, decision of the
13 BIA affirming a July 27, 2018, decision of an Immigration
14 Judge ("IJ") denying Sunar's application for asylum,
15 withholding of removal, and relief under the Convention
16 Against Torture ("CAT"). In re Tul Prasad Sunar, No. A206
17 882 136 (B.I.A. Oct. 22, 2020), aff'g No. A206 882 136 (Immig.
18 Ct. N.Y. City July 27, 2018). We assume the parties'
19 familiarity with the underlying facts and procedural history.
20 We have reviewed the IJ's decision as modified by the
21 BIA, i.e., minus the IJ's adverse credibility determination
22 because the BIA did not reach it. See Xue Hong Yang v. U.S.
23 Dep't of Just., 426 F.3d 520, 522 (2d Cir. 2005). The
24 standards of review are well established. See 8 U.S.C.
2 1 § 1252(b)(4)(B) ("[T]he administrative findings of fact are
2 conclusive unless any reasonable adjudicator would be
3 compelled to conclude to the contrary."); Lecaj v. Holder,
4 616 F.3d 111, 114 (2d Cir. 2010) (reviewing factual findings
5 under the substantial evidence standard and questions of law
6 and application of law to fact de novo).
7 The agency did not err in concluding that Sunar failed
8 to satisfy his burden of proof for asylum, withholding of
9 removal, and CAT relief based on his claim that Maoists
10 attacked him and detonated a bomb near his home in 2013 on
11 account of his support of the Rastriya Prajatantra Party
12 ("RPP"). To obtain asylum, Sunar had the burden to establish
13 that he suffered past persecution, or that he has a well-
14 founded fear of future persecution, on account of his
15 political opinion. 8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(A),
16 (B)(i).
17 The agency did not err in concluding that Sunar failed
18 to establish that the past harm he suffered rose to the level
19 of persecution. "[P]ersecution is an extreme concept that
20 does not include every sort of treatment our society regards
21 as offensive." Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d
3 1 Cir. 2011) (quotation marks omitted). "[W]hile the
2 difference between harassment and persecution is necessarily
3 one of degree, the degree must be assessed with regard to the
4 context in which the mistreatment occurs." Beskovic v.
5 Gonzales, 467 F.3d 223, 226 (2d Cir. 2006) (quotation marks
6 and citation omitted). For instance, a beating may constitute
7 persecution in some circumstances (such as when administered
8 in conjunction with an arrest or detention), even though a
9 beating alone does not "constitute[] persecution per se."
10 Jian Qiu Liu v. Holder, 632 F.3d 820, 822 (2d Cir. 2011).
11 Sunar's testimony did not "refer[] to specific facts"
12 that would compel the conclusion that the incidents he
13 experienced rose to the level of persecution. 8 U.S.C.
14 § 1158(b)(1)(B)(ii). Indeed, Sunar stated that he suffered
15 only "a little bit" when Maoists hit him and that Maoists
16 detonated a bomb that damaged only the ground 80 meters from
17 his house, without providing details about the bombing, such
18 as whether he heard or saw the explosion, whether anyone was
19 harmed or nearby when it detonated, and whether there were
20 other buildings nearby. 1 See Jian Qiu Liu, 632 F.3d at 822
1 Contrary to Sunar's contention, the BIA did not affirm the
4 1 (finding no error in the agency's determination that
2 applicant failed to establish past persecution when "he
3 suffered only minor bruising from an altercation with family
4 planning officials, which required no formal medical
5 attention and had no lasting physical effect"). Moreover,
6 the agency did not err in declining to credit unsworn
7 statements from Sunar's relatives, his neighbor, and RPP
8 members alleging that Sunar was the target of the bomb because
9 the statements were not based on first-hand knowledge and
10 were strikingly similar to one another in content. See Y.C.
11 v. Holder, 741 F.3d 324, 332 (2d Cir. 2013) ("We generally
12 defer to the agency's evaluation of the weight to be afforded
13 an applicant's documentary evidence."); Mei Chai Ye v. U.S.
14 Dep't of Just., 489 F.3d 517, 524 (2d Cir. 2007) ("[T]his
15 court has . . . firmly embraced the commonsensical notion
16 that striking similarities between affidavits are an
17 indication that the statements are 'canned.'"). Further, the
18 harm suffered by Sunar's wife, which he did not witness and
19 which apparently targeted her and not him, is not evidence
IJ's adverse credibility finding but rather agreed that Sunar did not satisfy his burden of demonstrating that he was the target of the bombing. 5 1 that he suffered past persecution. See Shi Liang Lin v. U.S.
2 Dep't of Just., 494 F.3d 296, 308 (2d Cir. 2007) (concluding
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20-3722 Sunar v. Garland BIA Vomacka, IJ A206 882 136 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 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 24th day of October, two thousand twenty- 5 two. 6 7 PRESENT: 8 JON O. NEWMAN, 9 DENNY CHIN, 10 RICHARD J. SULLIVAN, 11 Circuit Judges. 12 _____________________________________ 13 14 TUL PRASAD SUNAR, 15 Petitioner, 16 17 v. 20-3722 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Dilli Raj Bhatta, Esq., Bhatta Law 25 & Associates, New York, NY. 26 27 FOR RESPONDENT: Brian Boynton, Principal Deputy 28 Assistant Attorney General; 29 Gregory D. Mack, Senior Litigation 1 Counsel; Sarah L. Martin, Trial 2 Attorney, Office of Immigration 3 Litigation, United States 4 Department of Justice, Washington, 5 DC. 6 7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals ("BIA") decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioner Tul Prasad Sunar, a native and citizen of
12 Nepal, seeks review of an October 22, 2020, decision of the
13 BIA affirming a July 27, 2018, decision of an Immigration
14 Judge ("IJ") denying Sunar's application for asylum,
15 withholding of removal, and relief under the Convention
16 Against Torture ("CAT"). In re Tul Prasad Sunar, No. A206
17 882 136 (B.I.A. Oct. 22, 2020), aff'g No. A206 882 136 (Immig.
18 Ct. N.Y. City July 27, 2018). We assume the parties'
19 familiarity with the underlying facts and procedural history.
20 We have reviewed the IJ's decision as modified by the
21 BIA, i.e., minus the IJ's adverse credibility determination
22 because the BIA did not reach it. See Xue Hong Yang v. U.S.
23 Dep't of Just., 426 F.3d 520, 522 (2d Cir. 2005). The
24 standards of review are well established. See 8 U.S.C.
2 1 § 1252(b)(4)(B) ("[T]he administrative findings of fact are
2 conclusive unless any reasonable adjudicator would be
3 compelled to conclude to the contrary."); Lecaj v. Holder,
4 616 F.3d 111, 114 (2d Cir. 2010) (reviewing factual findings
5 under the substantial evidence standard and questions of law
6 and application of law to fact de novo).
7 The agency did not err in concluding that Sunar failed
8 to satisfy his burden of proof for asylum, withholding of
9 removal, and CAT relief based on his claim that Maoists
10 attacked him and detonated a bomb near his home in 2013 on
11 account of his support of the Rastriya Prajatantra Party
12 ("RPP"). To obtain asylum, Sunar had the burden to establish
13 that he suffered past persecution, or that he has a well-
14 founded fear of future persecution, on account of his
15 political opinion. 8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(A),
16 (B)(i).
17 The agency did not err in concluding that Sunar failed
18 to establish that the past harm he suffered rose to the level
19 of persecution. "[P]ersecution is an extreme concept that
20 does not include every sort of treatment our society regards
21 as offensive." Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d
3 1 Cir. 2011) (quotation marks omitted). "[W]hile the
2 difference between harassment and persecution is necessarily
3 one of degree, the degree must be assessed with regard to the
4 context in which the mistreatment occurs." Beskovic v.
5 Gonzales, 467 F.3d 223, 226 (2d Cir. 2006) (quotation marks
6 and citation omitted). For instance, a beating may constitute
7 persecution in some circumstances (such as when administered
8 in conjunction with an arrest or detention), even though a
9 beating alone does not "constitute[] persecution per se."
10 Jian Qiu Liu v. Holder, 632 F.3d 820, 822 (2d Cir. 2011).
11 Sunar's testimony did not "refer[] to specific facts"
12 that would compel the conclusion that the incidents he
13 experienced rose to the level of persecution. 8 U.S.C.
14 § 1158(b)(1)(B)(ii). Indeed, Sunar stated that he suffered
15 only "a little bit" when Maoists hit him and that Maoists
16 detonated a bomb that damaged only the ground 80 meters from
17 his house, without providing details about the bombing, such
18 as whether he heard or saw the explosion, whether anyone was
19 harmed or nearby when it detonated, and whether there were
20 other buildings nearby. 1 See Jian Qiu Liu, 632 F.3d at 822
1 Contrary to Sunar's contention, the BIA did not affirm the
4 1 (finding no error in the agency's determination that
2 applicant failed to establish past persecution when "he
3 suffered only minor bruising from an altercation with family
4 planning officials, which required no formal medical
5 attention and had no lasting physical effect"). Moreover,
6 the agency did not err in declining to credit unsworn
7 statements from Sunar's relatives, his neighbor, and RPP
8 members alleging that Sunar was the target of the bomb because
9 the statements were not based on first-hand knowledge and
10 were strikingly similar to one another in content. See Y.C.
11 v. Holder, 741 F.3d 324, 332 (2d Cir. 2013) ("We generally
12 defer to the agency's evaluation of the weight to be afforded
13 an applicant's documentary evidence."); Mei Chai Ye v. U.S.
14 Dep't of Just., 489 F.3d 517, 524 (2d Cir. 2007) ("[T]his
15 court has . . . firmly embraced the commonsensical notion
16 that striking similarities between affidavits are an
17 indication that the statements are 'canned.'"). Further, the
18 harm suffered by Sunar's wife, which he did not witness and
19 which apparently targeted her and not him, is not evidence
IJ's adverse credibility finding but rather agreed that Sunar did not satisfy his burden of demonstrating that he was the target of the bombing. 5 1 that he suffered past persecution. See Shi Liang Lin v. U.S.
2 Dep't of Just., 494 F.3d 296, 308 (2d Cir. 2007) (concluding
3 "that the statutory scheme unambiguously dictates that
4 applicants can become candidates for asylum relief only based
5 on persecution that they themselves have suffered"); Tao
6 Jiang v. Gonzales, 500 F.3d 137, 141–42 (2d Cir. 2007)
7 (recognizing that there may be circumstances when harm to an
8 applicant's family member amounts to past persecution of the
9 applicant, but noting that such a situation would presumably
10 require that the applicant share or be perceived to share
11 "the characteristic that motivated persecutors to harm the
12 family member," be in the "zone of risk," and suffer some
13 "continuing hardship" following the incident, or
14 alternatively that the applicant show that the harm was a
15 means of targeting the applicant).
16 Absent past persecution, Sunar could establish
17 eligibility for asylum only by demonstrating a well-founded
18 fear of future persecution, "which requires . . . credible
19 testimony that he subjectively fears persecution" and that he
20 "establish that his fear is objectively reasonable."
21 Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004);
6 1 see also 8 C.F.R. § 1208.13(b)(2). The agency did not err in
2 concluding that Sunar failed to establish an objectively
3 reasonable fear of persecution. Sunar did not claim that
4 Maoists had looked for him since his departure from Nepal in
5 2013 but stated only that they threatened him in the course
6 of attacking his wife in 2017 on account of her, not his,
7 political activities. But his wife's written statement does
8 not corroborate that threat, reporting only that Maoists beat
9 her and threatened her life because of her political
10 activities. And the country conditions evidence discusses
11 isolated incidents of violence around the 2013 and 2017
12 elections but does not discuss any incidents in which RPP
13 supporters were harmed. Sunar's testimony that Maoists
14 threatened him on one occasion since his 2013 departure from
15 Nepal thus does not compel a finding that he has a well-
16 founded fear of persecution. See 8 U.S.C.
17 §§ 1158(b)(1)(B)(ii), 1252(b)(4)(B); Jian Xing Huang v. U.S.
18 INS, 421 F.3d 125, 129 (2d Cir. 2005) ("In the absence of
19 solid support in the record . . . [an applicant's] fear is
20 speculative at best."). Because Sunar does not have a well-
21 founded fear of persecution, the agency did not err in denying
7 1 asylum, withholding of removal, and CAT relief because all
2 three claims were based on the same factual predicate and
3 withholding of removal and CAT relief require "a greater
4 likelihood of future persecution than that required for the
5 grant of asylum." 2 Lecaj, 616 F.3d at 119–20.
6 For the foregoing reasons, the petition for review is
7 DENIED. All pending motions and applications are DENIED and
8 stays VACATED.
9 FOR THE COURT: 10 Catherine O'Hagan Wolfe, 11 Clerk of Court
2Contrary to the Government's contention, Sunar challenges the agency's denial of withholding of removal and CAT relief by arguing that the agency erred in relying on his failure to satisfy the burden for asylum to deny those forms of relief. 8