Thieng v. Lynch ( 2015 )

11-5202
Thieng v. Lynch
BIA
Straus, I.J.
A093 338 408
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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 10th day of September, two thousand fifteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 ROSEMARY S. POOLER,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 RAJ BAHADUR THIENG,
14 Petitioner,
15
16 v. 11-5202
17 NAC
18 LORETTA E. LYNCH,1 UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Khagendra Gharti-Chhetry, New York, New
24 York.
25
26
1
Loretta E. Lynch is automatically substituted as the
respondent in this case pursuant to Federal Rule of
Appellate Procedure 43(c)(2).
1 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
2 Attorney General; Holly M. Smith,
3 Senior Litigation Counsel; Don G.
4 Scroggin, Trial Attorney, Office of
5 Immigration Litigation, United States
6 Department of Justice, Washington, D.C.
7
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED that the petition for review is
11 GRANTED in part and DENIED in part.
12 Petitioner Raj Bahadur Thieng, a native and citizen of
13 Nepal, seeks review of a November 23, 2011 decision of the BIA
14 affirming the April 15, 2010 decision of Immigration Judge
15 (“IJ”) denying his application for asylum, withholding of
16 removal, and relief under the Convention Against Torture
17 (“CAT”). In re Raj Bahadur Thieng, No. A093 338 408 (B.I.A.
18 November 23, 2011), aff’g No. A093 338 408 (Immig. Ct.
19 Hartford Apr. 15, 2010). We assume the parties’ familiarity
20 with the underlying facts and procedural history of the case.
21 Under the circumstances of this case, we have reviewed
22 the IJ’s decision as the final agency determination. See
23 Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008). The
24 applicable standards of review are well established. See
25 8 U.S.C. § 1252(b)(4)(B); Aliyev v. Mukasey, 549 F.3d 111, 115
26 (2d Cir. 2008).
2
1 The agency reasonably concluded that the mistreatment
2 Thieng experienced in Nepal did not rise to the level of
3 persecution. The BIA has defined persecution as a “threat to
4 the life or freedom of, or the infliction of suffering or harm
5 upon, those who differ in a way regarded as offensive.”
6 Matter of Acosta, 19 I. & N. Dec. 211, 222 (B.I.A. 1985),
7 overruled, in part, on other grounds by INS v.
8 Cardoza-Fonseca, 480 U.S. 421 (1987); accord Ivanishvili v.
9 U.S. Dep’t of Justice, 433 F.3d 332, 342 (2d Cir. 2006).
10 Although the visit by Youth Communists League (“YCL”) members
11 to Thieng’s cyber café likely interrupted his business and
12 disturbed him, this incident does not rise above “mere
13 harassment,” and, thus, does not constitute persecution.
14 Ivanishvili, 433 F.3d at 341; see Mei Fun Wong v. Holder, 633
15 F.3d 64, 72 (2d Cir. 2011) (“We have emphasized that
16 persecution is an extreme concept that does not include every
17 sort of treatment our society regards as offensive.”)
18 (internal quotation marks omitted). Further, although Thieng
19 testified that he received threatening phone calls,
20 unfulfilled threats do not constitute persecution. See Gui Ci
21 Pan v. U.S. Att’y Gen., 449 F.3d 408, 412 (2d Cir. 2006).
22
3
1 However, substantial evidence does not support the
2 agency’s conclusion that Thieng failed to demonstrate that he
3 was targeted by the YCL on account of his political opinion.
4 Although Thieng testified that, as a member of the Nepali
5 Congress, he had participated mostly in non-political social
6 and community assistance activities, he also offered testimony
7 that the Maoists targeted him because he had declined to pay
8 them money, or to support them. Further, in his decision, the
9 IJ incorrectly stated that Thieng did not discuss politics
10 with the YCL members who came to his café in March 2007, as
11 the record contains evidence that Thieng and the YCL members
12 did engage in a political discussion at his café. Given that
13 this evidence reflects a direct link between Thieng’s decision
14 not to support the Maoists and the threatening phone calls, it
15 compels the conclusion that Thieng was subject to mistreatment
16 on the basis of an actual or imputed political opinion. See
17 Ahmed v. Ashcroft, 286 F.3d 611, 612 (2d Cir. 2002). Despite
18 this error, because the mistreatment experienced by Thieng in
19 Nepal did not rise to the level of persecution, the agency
20 reasonably concluded that Thieng failed to demonstrate past
21 persecution.
22
4
1 However, we grant Theing’s petition for review with
2 respect to his challenge to the agency’s denial of his asylum
3 and withholding of removal claims. The IJ relied on the
4 erroneous conclusion that the YCL did not target Thieng on
5 account of a protected ground to determine that he lacked a
6 well-founded fear of future persecution but explicitly stated
7 that “there is probably enough evidence to show that [Thieng]
8 has a well-founded fear” of future persecution. A.R. 38. In
9 these circumstances we cannot state with confidence that the
10 agency would have made the same decision in the absence of the
11 error. See Xiao Ji Chen v. U.S Dep't of Justice, 434 F.3d
12 144, 159 (2d Cir. 2006); Cao He Lin v. U.S. Dep't of Justice,
13 428 F.3d 391, 401–02 (2d Cir. 2005). Thus, we remand for the
14 agency to determine whether that probability of harm is
15 sufficient to make Thieng eligible for asylum or withholding
16 of removal. However, given the IJ’s separate finding that
17 Thieng failed to produce sufficient evidence to support the
18 requisite likelihood that he would be subject to torture upon
19 return to Nepal, we decline to remand Thieng’s CAT claim.
20 For the foregoing reasons, the petition for review is
21 GRANTED in part and DENIED in part, and the case is REMANDED
22 to the BIA for further proceedings consistent with this order.
5
1 As we have completed our review, the stay of removal that the
2 Court previously granted in this petition is VACATED.
3
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
6
6