Bhattrai v. Garland ( 2022 )

19-82
Bhattrai v. Garland
BIA
Conroy, IJ
A205 647 151
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 10th day of February, two thousand twenty-
5 two.
6
7 PRESENT:
8 REENA RAGGI,
9 GERARD E. LYNCH,
10 DENNY CHIN,
11 Circuit Judges.
12 _____________________________________
13
14 KABITA BHATTRAI,
15 Petitioner,
16
17 v. 19-82
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Ramesh K. Shrestha, New York, NY.
25
26 FOR RESPONDENT: Jody H. Hunt, Assistant Attorney
27 General; Ernesto H. Molina, Jr. ,
28 Deputy Director; Nancy F. Safavi,
1 Trial Attorney, Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, DC.
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Kabita Bhattrai, a native and citizen of
10 Nepal, seeks review of a December 13, 2018, decision of the
11 BIA affirming a November 9, 2017, decision of an Immigration
12 Judge (“IJ”) denying asylum, withholding of removal, and
13 protection under the Convention Against Torture (“CAT”). In
14 re Kabita Bhattrai, No. A 205 647 151 (B.I.A. Dec. 13, 2018),
15 aff’g No. A 205 647 151 (Immig. Ct. N.Y. City Nov. 9, 2017).
16 We assume the parties’ familiarity with the underlying facts
17 and procedural history.
18 We have considered both the IJ’s and the BIA’s opinions
19 “for the sake of completeness.” Wangchuck v. Dep’t of
20 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The
21 applicable standards of review are well established. See
22 8 U.S.C. § 1252(b)(4)(B); Paloka v. Holder, 762 F.3d 191, 195
23 (2d Cir. 2014) (reviewing factual findings under the
2
1 substantial evidence standard and questions of law de novo).
2 An asylum applicant must show that she has suffered past
3 persecution, or has a well-founded fear of future
4 persecution, on account of race, religion, nationality,
5 membership in a particular social group, or political
6 opinion. See 8 U.S.C. § 1158(b)(1)(B)(i); 8 C.F.R.
7 § 1208.13(b). Past persecution creates a rebuttable
8 presumption of a “well-founded fear of [future] persecution
9 on the basis of the original claim.” 8 C.F.R. §
10 1208.13(b)(1). The Government may rebut that presumption
11 where a preponderance of the evidence shows that the applicant
12 could avoid future persecution “by relocating to another part
13 of the applicant’s country of nationality . . . , and under
14 all the circumstances, it would be reasonable to expect the
15 applicant to do so.” 8 C.F.R. § 1208.13(b)(1)(i)(B); see
16 also Matter of D-I-M-, 24 I. & N. Dec. 448, 450–51 (B.I.A.
17 2008) (discussing the burden shifting framework).
18 The record supports the agency’s conclusion that Bhattrai
19 could relocate within Nepal to avoid future persecution on
20 account of her caste and that it would be reasonable for her
21 to do so. See 8 C.F.R. § 1208.13(b)(1)(i)(B); Singh v. BIA,
3
1 435 F.3d 216, 219 (2d Cir. 2006) (“Asylum in the United States
2 is not available to obviate re-location to sanctuary in one’s
3 own country.”). Factors relevant in determining the
4 reasonableness of relocation include “whether the applicant
5 would face other serious harm in the place of suggested
6 relocation; any ongoing civil strife within the country;
7 administrative, economic, or judicial infrastructure;
8 geographical limitations; and social and cultural
9 constraints, such as age, gender, health, and social and
10 familial ties.” 8 C.F.R. § 1208.13(b)(3) (2018) 1; Singh v.
11 Garland, 11 F.4th 106, 117–118 (2d Cir. 2021).
12 The agency considered the relevant factors, and the
13 following facts support the agency’s decision. Bhattrai’s
14 parents moved from her home village to Kathmandu in January
15 2016, they live there with her children, and they have not
16 been harassed or threatened in the time that they have lived
17 in Kathmandu. Her family appeared to have sufficient
18 financial resources to live in Kathmandu because her father
19 was able to pay for her trip to the United States. Although
1 This version of the regulation was in effect until November 2018, including
at the time of the IJ’s decision in this case.
4
1 neighbors from Bhattrai’s village called and told her father
2 that people from other castes were still looking for her and
3 she should not come back, there were no threats of harm to
4 her or her family if they remained in Kathmandu. The Chhetri
5 caste, of which Bhattrai was a member, is the dominant group
6 in Kathmandu, and is the second highest caste in Nepal. The
7 2015 U.S. State Department Human Rights Report for Nepal
8 reflects political violence in Nepal, but it does not indicate
9 that such violence is directed against the Chhetri caste.
10 Moreover, Bhattrai herself lived unharmed in Kathmandu for
11 three months before coming to the United States.
12 The record does not support Bhattrai’s challenges to the
13 IJ’s determination. She contends that the IJ discounted her
14 testimony that her family was in hiding and that she would be
15 unable to get a job to support her family in Kathmandu.
16 However, the record supports the IJ’s determination because
17 Bhattrai’s testimony was ambiguous about living in hiding
18 given her testimony that her two younger children attended
19 school and her oldest child was in college and worked in a
20 restaurant. Bhattrai also argues that the IJ
21 mischaracterized her family’s financial resources, but, to
5
1 the contrary, she testified that her father paid for
2 everything for her even though he was not wealthy and she did
3 not provide a clear statement of how her father financed her
4 trip to the United States. And although Bhattrai claimed
5 that her family would have no financial resources in
6 Kathmandu, she had worked in a factory in her home village
7 and her son works in a restaurant in Kathmandu.
8 Finally, Bhattrai argues that the agency erred by failing
9 to conduct a separate analysis of her CAT claim. However,
10 the agency’s determination that the Government had rebutted
11 the presumption of a well-founded fear of future harm as
12 required to state an asylum claim “necessarily” resolved
13 Bhattrai’s claims for both withholding of removal and CAT
14 relief, which require a greater likelihood of persecution or
15 torture. Lecaj v. Holder, 616 F.3d 111, 119–20 (2d Cir.
16 2010); see also 8 C.F.R. § 1208.16(c)(3)(ii) (providing that
17 ability to relocate is a factor to be considered in
18 determining the risk of torture).
19 In sum, the agency’s conclusion that Bhattrai could
20 reasonably relocate within Nepal is supported by substantial
21 evidence because her risk of harm is limited to her home
6
1 village and her parents and children have been able to live
2 safely in Kathmandu. See 8 C.F.R. § 1208.13(b)(1)(i)(B),
3 1208.16(c)(3)(ii).
4 For the foregoing reasons, the petition for review is
5 DENIED. All pending motions and applications are DENIED and
6 stays VACATED.
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe,
9 Clerk of Court
7