Gurung v. Barr ( 2019 )

18-519
Gurung v. Barr
BIA
Christensen, IJ
A202 081 117
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 16th day of December, two thousand nineteen.
PRESENT:
GUIDO CALABRESI,
PETER W. HALL,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_____________________________________
SURAJ GURUNG,
Petitioner,
v. 18-519
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Gary J. Yerman, New York, NY.
FOR RESPONDENT: Joseph H. Hunt, Assistant
Attorney General; Keith I.
McManus, Assistant Director; Juria
L. Jones, Trial Attorney, Office
of Immigration Litigation, United
States Department of Justice,
Washington, DC.
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 Suraj Gurung, a native and citizen of Nepal,
seeks review of a January 31, 2018, decision of the BIA
affirming a June 8, 2017, decision of an Immigration Judge
(“IJ”) denying Gurung’s application for asylum, withholding
of removal, and relief under the Convention Against Torture
(“CAT”). In re Suraj Gurung, No. A 202 081 117 (B.I.A. Jan.
31, 2018), aff’g No. A 202 081 117 (Immig. Ct. N.Y. City June
8, 2018). We assume the parties’ familiarity with the
underlying facts and procedural history.
We have reviewed both the BIA’s and IJ’s decisions “for
the sake of completeness.” Zaman v. Mukasey, 514 F.3d 233,
237 (2d Cir. 2008) (internal quotation marks omitted). The
standards of review are well established. See 8 U.S.C.
§ 1252(b)(4)(B); Lecaj v. Holder, 616 F.3d 111, 114 (2d Cir.
2010).
The agency did not err in concluding that Gurung failed
to satisfy his burden of proof for asylum, withholding of
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removal, and CAT relief based on his claim that Maoists
attacked him in 2003 and 2013 on account of his family’s
refusal to support the Maoists and his membership in the
Nepali Congress Party. To establish eligibility for asylum,
Gurung was required to show that he suffered past persecution,
or that he has a well-founded fear of future persecution on
account of his race, religion, nationality, membership in a
particular social group, or political opinion. 8 U.S.C.
§§ 1101(a)(42), 1158(b)(1)(A), (B)(i).
Past Persecution
“[P]ersecution is ‘an extreme concept that does not
include every sort of treatment our society regards as
offensive.’” Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d
Cir. 2011) (quoting Ai Feng Yuan v. U.S. Dep’t of Justice,
416 F.3d 192, 198 (2d Cir. 2005)). A valid claim of past
persecution may “encompass[] a variety of forms of adverse
treatment, including non-life-threatening violence and
physical abuse,” but the harm must be sufficiently severe,
rising above “mere harassment.” Ivanishvili v. U.S. Dep’t
of Justice, 433 F.3d 332, 341 (2d Cir. 2006) (internal
quotation marks and brackets omitted). “‘[T]he difference
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between harassment and persecution is necessarily one of
degree,’ . . . the degree must be assessed with regard to the
context in which the mistreatment occurs.” Beskovic v.
Gonzales, 467 F.3d 223, 226 (2d Cir. 2006) (quoting
Ivanishvili, 433 F.3d at 341). In evaluating a past
persecution claim, the agency must consider the harm suffered
in the aggregate. Poradisova v. Gonzales, 420 F.3d 70, 79–
80 (2d Cir. 2005).
In determining whether Gurung established past
persecution, the IJ appropriately considered Gurung’s young
age at the time of the first incident in 2003 (when Maoists
hit him with a bamboo stick) and further considered that
incident cumulatively with the second incident 10 years later
when Maoists “lightly hit” him before he escaped. See Jorge-
Tzoc v. Gonzales, 435 F.3d 146, 150 (2d Cir. 2006) (“[A]ge
can be a critical factor in the adjudication of asylum claims
and may bear heavily on the question of whether an applicant
was persecuted . . . .”); see also Poradisova, 420 F.3d at
79–80. Because Gurung was not harmed in either incident
and he was not mistreated during the 10 years in between, the
IJ did not err in concluding that these attacks did not rise
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to the level of persecution. See Mei Fun Wong, 633 F.3d at
72; cf. Jian Qiu Liu v. Holder, 632 F.3d 820, 822 (2d Cir.
2011) (finding no error in the agency’s determination that a
noncitizen failed to establish past persecution when “prior
to his arrest and detention by local police, he suffered only
minor bruising from an altercation with family planning
officials, which required no formal medical attention and had
no lasting physical effect”).
Well-Founded Fear of Persecution
When a petitioner establishes past persecution, there is
a presumption of a well-founded fear of future persecution on
the basis of the petitioner’s original claim. 8 C.F.R.
§ 1208.13(b)(1). The agency reasonably found that even
assuming Gurung suffered past persecution, the presumption of
a well-founded fear of future persecution was rebutted.
The Government can rebut the presumption of a well-
founded fear of persecution if it shows, by a “preponderance
of the evidence,” that “[t]here has been a fundamental change
in circumstances such that the applicant no longer has a well-
founded fear of persecution . . . .” 8 C.F.R.
§ 1208.13(b)(1)(i)(A), (ii); see also Lecaj, 616 F.3d at 115.
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The agency may consider the most recent State Department
reports but also must consider any contrary evidence and the
applicant’s “particular circumstances.” See Lecaj, 616 F.3d
at 115-16.
The IJ considered the State Department’s Human Rights
Reports on Nepal as well as Gurung’s evidence and reasonably
found as follows. The 10-year armed conflict between the
Maoist insurgency and the government of Nepal ended in 2006
when Maoists signed a peace accord and joined the government.
A breakaway Maoist faction committed some acts of political
violence and intimidation during the 2013 elections. By
2015, the Maoist Party was no longer committing organized
human rights abuses or extortion, although a “very small”
Maoist faction extorted wealthy individuals but did not
specifically target members of the Congress Party. In 2017,
the Congress Party won the national election, which had 71
percent voter participation and only a few incidents of
violence in a few districts.
A comparison of the State Department’s Human Rights
Reports for 2013, which was the last year Gurung had contact
with Maoists, and 2016 shows the extent to which conditions
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improved. The 2013 report states that Maoists committed acts
of violence and extortion throughout the year, although the
number of such incidents had markedly decreased from previous
years. By comparison, the 2016 report does not report that
Maoists committed any such acts during the year. The country
conditions evidence thus supports the agency’s finding that
there has been a fundamental change in circumstances since
the Maoists assaulted Gurung in 2003 and 2013. See Lecaj,
616 F.3d at 115–16.
Further, the agency properly considered the change in
circumstances in Nepal in the context of Gurung’s particular
circumstances. See id. at 116. In support of his claim of
a well-founded fear of future persecution, Gurung submitted
two threatening letters that Maoists had sent to his family’s
home in 2014. His only other assertion that Maoists made any
further contact with his family was, according to his mother,
during a recent local election when they looked for him.
Gurung admitted that the Congress Party candidate for whom he
had campaigned in 2003 had not had problems with Maoists nor
had his mother, who is a party member (although she does not
campaign).
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The agency reasonably took note that Gurung did not
provide a date for the Maoists’ latest attempt to locate him
and that his mother did not mention this visit in her 2016
letter or submit another letter detailing this visit. The
2014 letters and Gurung’s testimony about the alleged
interaction between his mother and Maoists, without any
details or corroboration, did not compel the conclusion that
Gurung has a well-founded fear of persecution. This is
especially so given the steady decline in politically-
motivated violence by Maoists to the point that there were no
reports of such acts in 2016, the large voter turnout and
success of Gurung’s political party in the 2017 elections,
and the lack of harm in Nepal to the local party candidate
and Gurung’s mother. See Lecaj, 616 F.3d at 116–19; see also
Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999)
(applicant’s claimed fear of future persecution is weakened
when similarly situated family members continue to live
unharmed in petitioner’s native country).
Accordingly, the agency did not err in concluding that
circumstances in Nepal had fundamentally changed such that
Gurung does not have a well-founded fear of political
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persecution. See 8 C.F.R. § 1208.13(b)(1)(i)(A), (ii); see
also Lecaj, 616 F.3d at 116–19. Because Gurung does not have
a well-founded fear of persecution, the agency did not err in
denying asylum, withholding of removal, and CAT relief given
that all three claims were based on the same factual
predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d
Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. All pending motions and applications are DENIED and
stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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