Pun v. Holder , 491 F. App'x 241 ( 2012 )


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  •     11-2134-ag
    Pun v. Holder
    BIA
    Abrams, IJ
    A099 536 260
    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 9th day of August, two thousand twelve.
    PRESENT:
    JOSÉ A. CABRANES,
    GERARD E. LYNCH,
    SUSAN L. CARNEY,
    Circuit Judges.
    _____________________________________
    GUKARNA PUN,
    Petitioner,
    v.                                        11-2134-ag
    NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
    Respondent.
    _____________________________________
    FOR PETITIONER:                Shifa Soressa, New York, New York.
    FOR RESPONDENT:                Tony West, Assistant Attorney General;
    William C. Peachey, Jr., Assistant
    Director; Ada E. Bosque, Trial
    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 Gukarna Pun, a native and citizen of Nepal,
    seeks review of an April 26, 2011, decision of the BIA
    affirming the April 17, 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 Gukarna Pun, No. A099 536 260 (B.I.A.
    Apr. 26, 2011), aff’g No. A099 536 260 (Immig. Ct. N.Y. City
    April 17, 2009).   We assume the parties’ familiarity with the
    underlying facts and procedural history of the case.
    Because the BIA adopted, affirmed, and extended the IJ’s
    decision, we review the two decisions in tandem.   See Yanqin
    Weng v. Holder, 
    562 F.3d 510
    , 513 (2d Cir. 2009). We review
    “factual findings under the substantial evidence standard,”
    Aliyev v. Mukasey, 
    549 F.3d 111
    , 115 (2d Cir. 2008), and
    “defer to the BIA’s reasonable interpretations of the
    immigration laws,” Li Yong Cao v. U.S. Dep’t of Justice, 
    421 F.3d 149
    , 156-57 (2d Cir. 2005).   See also 
    8 U.S.C. § 1252
    (b)(4)(B).
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    I. Asylum and Withholding of Removal
    The BIA has defined persecution as a “threat to the life
    or freedom of, or the infliction of suffering or harm upon,
    those who differ in a way regarded as offensive.”   Matter of
    Acosta, 
    19 I. & N. Dec. 211
    , 222 (BIA 1985), overruled, in
    part, on other grounds, INS v. Cardoza-Fonseca, 
    480 U.S. 421
    (1987); accord Ivanishvili v. U.S. Dep’t of Justice, 
    433 F.3d 332
    , 342 (2d Cir. 2006).   The harm or suffering must be
    inflicted in order to punish the individual for possessing a
    belief or characteristic the persecutor seeks to overcome, and
    inflicted either by the government of a country or by persons
    or an organization that the government is unable or unwilling
    to control.   Acosta, 19 I. & N. Dec. at 222; see also Pavlova
    v. INS, 
    441 F.3d 82
    , 85 (2d Cir. 2006).   In addition, the harm
    must be sufficiently severe, rising above “mere harassment.”
    Ivanishvili, 
    433 F.3d at 341
    .
    The agency reasonably concluded that the mistreatment
    experienced by Pun did not rise to the level of persecution.
    Pun argues that the mistreatment experienced by his brother
    and other family members establishes that he experienced
    persecution in Nepal.   But “an applicant must rely upon harm
    the applicant has suffered individually”; mistreatment
    3
    experienced by others, even close family members, is not
    sufficient to constitute harassment.   Tao Jiang v. Gonzales,
    
    500 F.3d 137
    , 141 (2d Cir. 2007).
    Pun also argues that the threats made by the Maoists
    constitute past persecution.   Unfulfilled threats, however,
    are also insufficient to demonstrate past persecution.     See
    Gui Ci Pan v. U.S. Att’y Gen., 
    449 F.3d 408
    , 412 (2d Cir.
    2006).   Pun further argues that his family’s displacement by
    the Maoists constitutes past persecution.   The agency,
    however, reasonably concluded that this forced relocation did
    not constitute persecution, because Pun failed to demonstrate
    that “severe economic disadvantage” resulted from this
    relocation.   See Matter of T-Z-, 
    24 I. & N. Dec. 163
    , 173 (BIA
    2007).
    The agency also reasonably concluded that Pun failed to
    demonstrate a well-founded fear of future persecution.
    Although Pun testified that he feared that he would be
    targeted by the Maoists on account of his political opinions,
    he offered no evidence that the Maoists were aware of his
    opinions and, in fact, testified that he had never expressed
    his opinions “face to face” with the Maoists.   None of the
    letters he offered in support of his application indicate that
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    the Maoist forces are still looking for Pun.    Although Pun
    argues that he has a well-founded fear of persecution based on
    the general violence engaged in by the Maoists in Nepal, the
    fact that the Maoists may act out of a “generalized political
    motive,” rather than any actual or imputed political opinion
    held by Pun is not sufficient to constitute persecution.       See
    INS v. Elias-Zacarias, 
    502 U.S. 478
    , 482 (1992) (internal
    quotation marks omitted).
    Pun further argues that the mistreatment experienced by
    his brother in Nepal is sufficient evidence to establish that
    he will be persecuted if he returns to Nepal.    However, Pun
    offers no evidence that he is likely to experience the same
    problems encountered by his brother, particularly in light of
    the fact that, unlike Pun, his brother was abducted by the
    Maoist forces and escaped their forced military training.       See
    
    8 C.F.R. § 1208.13
    (b)(2)(iii) (providing that to demonstrate a
    well-founded fear of persecution, an applicant must show
    either that he “would be singled out individually for
    persecution” or that there is a “pattern or practice . . . of
    persecution of a group of persons similarly situated to the
    applicant”).   Therefore, as the agency reasonably found that
    Pun failed to demonstrate either past persecution or a well-
    founded fear of persecution, it did not err in denying his
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    claims for asylum and for withholding of removal, which were
    based on the same factual predicate.      See 
    8 C.F.R. § 1208.13
    (b)(2)(iii); 
    8 C.F.R. § 1208.16
    (b)(2)(i); see also
    Paul v. Gonzales, 
    444 F.3d 148
    , 156 (2d Cir. 2006).
    II. CAT Relief
    Pun argues that the agency improperly determined that he
    waived his CAT claim by failing to challenge it in his brief
    to the BIA, and that he is eligible for CAT relief because the
    background materials on Nepal reflect rising violence and
    upheaval.     Pun’s brief in the BIA, however, contained no
    argument regarding the IJ’s denial of his request for CAT
    relief.     Accordingly, he failed to raise this avenue of relief
    with the BIA.     See Steevenez v. Gonzales, 
    476 F.3d 114
    , 117
    (2d Cir. 2007).     Because Pun failed to challenge the IJ’s
    denial of relief under the CAT in his appeal to the BIA, we
    lack jurisdiction to consider any challenge to the denial of
    that relief.     
    8 U.S.C. § 1252
    (d)(1).
    III. Motion to Remand
    Finally, the agency did not abuse its discretion by
    denying Pun’s motion to remand.      See Sanusi v. Gonzales, 
    445 F.3d 193
    , 201 (2d Cir. 2006).     Motions to remand are subject
    to the same substantive requirements as motions to reopen,
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    including the requirement that the “evidence sought to be
    offered is material and was not available and could not have
    been discovered or presented at the former hearing.”
    
    8 C.F.R. § 1003.2
    (c); Matter of Coelho, 
    20 I. & N. Dec. 464
    (BIA 1992).    In support of his motion, Pun presented articles
    describing the deterioration of conditions in Nepal after the
    resignation of the prime minister, and a letter from his
    brother describing his experiences after returning to Nepal
    from Dubai.    However, because none of these materials
    demonstrated that the Maoists would single Pun out for
    persecution on the basis of his political beliefs, the
    evidence was not material.     See 
    8 C.F.R. §§ 1003.2
    (c),
    1208.13(b)(2)(iii).     Pun also failed to demonstrate that these
    materials were unavailable to him when he first made his
    petition.     Accordingly, the BIA did not abuse its discretion
    in denying Pun’s motion to remand.
    For the foregoing reasons, the petition for review is
    DENIED.
    FOR THE COURT:
    Catherine O’Hagan Wolfe, Clerk
    7