Lama v. Holder , 488 F. App'x 499 ( 2012 )

11-2705-ag BIA
Lama v. Holder Abrams, IJ
A089 254 185
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 19th day of July, two thousand twelve.
PRESENT:
ROBERT A. KATZMANN,
DEBRA ANN LIVINGSTON,
SUSAN L. CARNEY,
Circuit Judges.
_______________________________________
SANGE LAMA,
Petitioner,
v. 11-2705-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Dalbir Singh, New York, NY.
FOR RESPONDENT: Tony West, Assistant Attorney General;
Anh-Thu P. Mai-Windle, Senior Litigation
Counsel; James A. Hurley, Attorney,
Office of Immigration Litigation, United
States Department of Justice, Washington,
D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED, that the petition for review
is DENIED.
Petitioner Sange Lama, a native and citizen of Nepal,
seeks review of a July 7, 2011 order of the BIA affirming
the June 5, 2009 decision of Immigration Judge (“IJ”) Steven
R. Abrams, denying his application for asylum, withholding
of removal, and relief under the Convention Against Torture
(“CAT”). In re Sange Lama, No. A089 254 185 (B.I.A. July 7,
2011), aff’g No. A089 254 185 (Immig. Ct. N.Y. City June 5,
2009). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
Under the circumstances of this case, we have reviewed
the IJ’s decision as supplemented by the BIA. See Yan Chen
v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
applicable standards of review are well-established. See 8
U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,
513 (2d Cir. 2009).
Lama argues that he suffered past persecution at the
hands of Maoists in Nepal who threatened to kill him when he
refused to join and contribute money to their party and
renounce his membership in the Nepali Congress Party
2
(“NCP”). However, as Lama testified, the Maoists did not
physically harm him and he did not suffer financially from
their demands because he did not actually give them money.
The agency therefore reasonably found that the Maoists’
unfulfilled threats did not constitute persecution. See
Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 342 (2d
Cir. 2006) (holding that harm must be sufficiently severe,
rising above “mere harassment,” to constitute persecution);
See Gui Ci Pan v. U.S. Attorney Gen., 449 F.3d 408, 412 (2d
Cir. 2006) (noting that courts have “rejected [persecution]
claims involving ‘unfulfilled’ threats”).
The agency also reasonably found that Lama failed to
establish that the Maoists targeted him based on his
political opinion or any other protected ground. Because
the REAL ID Act applies to Lama’s application, he is
required to show that his race, religion, nationality,
political opinion, or particular social group is “one
central reason for persecuting [him].” See 8 U.S.C.
§§ 1101(a)(42), 1158(b)(1)(B)(i). An applicant can
establish past persecution or a well-founded fear of
persecution on account of his political opinion by
demonstrating that the persecutor’s motive to persecute
3
arises from a political belief he perceives the applicant to
hold, whether correctly or incorrectly attributed. See Chun
Gao v. Gonzales, 424 F.3d 122, 129 (2d Cir. 2005) (“[A]n
imputed political opinion, whether correctly or incorrectly
attributed, can constitute a ground of political persecution
within the meaning of the [Immigration and Nationality]
Act.”) (internal quotation marks omitted). While Lama
asserts that the Maoists targeted him because he opposed
them politically as a member of the NCP, he testified that
the Maoists’ primary objective was to collect money, that
they increased their demand for money when they found out he
owned more than one business, and that he played only a
minor role in the NCP. Thus, the agency reasonably found
that the Maoists targeted him as a business owner and not
because of his political opinion.
Lama also asserts that he established a well-founded
fear of persecution by Maoists based on his political
opposition. However, as discussed above, the agency
reasonably found that the Maoists did not target Lama based
on his political opinion, but based on his potential income
as a business owner. Furthermore, the background materials
Lama submitted indicate that Maoists who, according to the
4
2008 State Department Human Rights Report and 2007 State
Department Country Report, continued to foster violence in
Nepal through the “arbitrary and unlawful use of lethal
force” did not target any particular group of people.
Although various articles Lama submitted indicate that the
Maoists attacked NCP cadres and high-ranking officials, the
agency reasonably found that Lama’s minimal participation in
the NCP would not expose him to such attacks. Given the
lack of evidence demonstrating that Lama would be targeted
by Maoists, the agency reasonably found that he failed to
establish a well-founded fear of persecution. See Melgar de
Torres v. Reno, 191 F.3d 307, 314 n.3 (2d Cir. 1999)
(finding that general civil strife does not establish a
well-founded fear of persecution).
Because Lama was unable to show the objective
likelihood of persecution needed to make out an asylum
claim, he was necessarily unable to meet the higher standard
required to succeed on a claim for withholding of removal.
See Paul v. Gonzales, 444 F.3d 148, 155-56 (2d Cir. 2006)
(“It is well-settled that the burden of proof for a
withholding of removal claim is higher than the burden of
proof for an asylum claim.”).
Furthermore, contrary to Lama’s assertion, the agency
5
reasonably found that he failed to establish that he was
likely to be tortured in Nepal. Although Lama alleged that
taxicab drivers beat him when he began arguing with one
driver, he testified that the police intervened during the
fight, took him to the hospital, and investigated the
matter. While Lama claims that the police never prosecuted
the drivers who assaulted him, the agency was nonetheless
entitled to conclude that Lama had not demonstrated that
“government officials . . . breach[ed] their legal
responsibility to prevent [torture].” See Khouzam v.
Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004) (concluding that
“torture requires . . . that government officials know of or
remain willfully blind to an act and thereafter breach their
legal responsibility to prevent it”). Thus, even assuming
that this single incident amounted to torture, the agency
reasonably determined that Lama failed to establish
eligibility for CAT relief.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DENIED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
6