Dipak Khatri Chhetri v. Holder , 553 F. App'x 81 ( 2014 )

12-4380
Khatri Chhetri v. Holder
BIA
Segal, IJ
A087 980 972
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 3rd day of February, two thousand fourteen.
5
6 PRESENT:
7 REENA RAGGI,
8 DEBRA ANN LIVINGSTON,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _______________________________________
12
13 DIPAK KHATRI CHHETRI,
14 Petitioner,
15
16 v. 12-4380
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Khagendra Gharti-Chhetry, New York,
24 NY.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Linda S. Wernery,
28 Assistant Director; James E. Grimes,
29 Senior Litigation Counsel, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Dipak Khatri Chhetri, a native and citizen of Nepal,
6 seeks review of an October 10, 2012, decision of the BIA
7 affirming the March 1, 2011, decision of Immigration Judge
8 (“IJ”) Alice Segal, which denied his application for asylum,
9 withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Dipak Khatri Chhetri, No.
11 A087 980 972 (B.I.A. Oct. 10, 2012), aff’g No. A087 980 972
12 (Immig. Ct. N.Y. City Mar. 1, 2011). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 Under the circumstances of this case, we have reviewed
16 both the IJ’s and the BIA’s opinions. See Zaman v. Mukasey,
17 514 F.3d 233, 237 (2d Cir. 2008). The applicable standards
18 of review are well-established. Where an “IJ found [an
19 applicant] to be credible, we treat the events [ ] he
20 experienced in the past as undisputed facts.” Castro v.
21 Holder, 597 F.3d 93, 99 (2d Cir. 2010) (internal quotation
22 marks omitted). “The agency’s findings of fact are
23 conclusive unless any reasonable adjudicator would be
2
1 compelled to conclude to the contrary.” Id. (internal
2 quotation marks omitted). Accordingly, we review factual
3 findings under the substantial evidence standard, which
4 requires that findings have a basis in “reasonable,
5 substantial and probative evidence in the record when
6 considered as a whole.” Iouri v. Ashcroft, 487 F.3d 76, 81
7 (2d Cir. 2007) (internal quotations marks omitted).
8 The IJ reasonably concluded that Khatri Chhetri did not
9 demonstrate that he was persecuted or holds a well-founded
10 fear of future persecution on account of political opinion.
11 Pursuant to the REAL ID Act, to establish that he was
12 persecuted “on account of” a political opinion, Khatri
13 Chhetri must show that the Maoist insurgents’ perception of
14 his political opinion was “at least one central reason” for
15 his persecution. See 8 U.S.C. §§ 1101(a)(42),
16 1158(b)(1)(B)(i); Castro, 597 F.3d at 100.
17 Khatri Chhetri asserts that the Maoists targeted him
18 because: (1) his uncle was a member of the Nepalese army and
19 had anti-Maoist political views; and (2) they interpreted
20 his report of his uncle’s murder to the police as a
21 political act of support for the Nepalese government and
22 opposition to the Maoist cause. A reasonable fact finder
3
1 would not be compelled to accept these arguments, however.
2 Although Maoists murdered Khatri Chhetri’s uncle because of
3 his uncle’s prior membership in the army and his refusal to
4 aid them, there is no evidence that the Maoists targeted any
5 other members of the uncle’s family. In particular, the
6 Maoists have not threatened or harmed Khatri Chhetri’s
7 father, a retired military officer.
8 Although an asylum applicant may satisfy the nexus
9 requirement by showing that he was persecuted due to imputed
10 political opinion, regardless of whether the imputation is
11 accurate, the IJ reasonably concluded that Khatri Chhetri
12 did not provide sufficient evidence that his persecutors
13 believed he held anti-Maoist political opinions. See
14 Delgado v. Mukasey, 508 F.3d 702, 706 (2d Cir. 2007). The
15 BIA has recognized “[t]he difficulty of determining motive
16 in situations of general civil unrest,” such as the conflict
17 between Maoists and the Nepalese government. In re S-P-, 21
18 I. & N. Dec. 486, 493 (BIA 1996). In such circumstances,
19 “the evidence must be evaluated in the context of the
20 ongoing civil conflict to determine whether the motive for
21 the abuse in the particular case was directed toward
22 punishing or modifying perceived political views . . . ; was
23 part of the violence inherent in an armed conflict (i.e.,
4
1 lawful acts of war); or, was motivated by some other reason
2 unrelated to asylum law.” Id. at 493-94.
3 Under these circumstances, the IJ did not clearly err
4 by accepting one plausible interpretation of the Maoists’
5 motives rather than another. Although it is certainly
6 possible that Maoist rebels deemed Khatri Chhetri’s police
7 report a political act, it is equally plausible that they
8 did not. Hostile actions by paramilitary groups are not per
9 se acts of persecution based on imputed political opinion
10 simply because those groups have political aims. See INS v.
11 Elias-Zacarias, 502 U.S. 478, 482 (1992) (holding that
12 actions by anti-government guerrilla group with political
13 agenda are not automatically politically driven). Here, the
14 only corroborating evidence Khatri Chhetri offered concerned
15 Maoist attacks on police stations in northwest Nepal,
16 evidence that does not bear on the insurgents’ motives for
17 targeting Khatri Chhetri. See 8 U.S.C. § 1158(b)(1)(B)(ii)
18 (granting IJ authority to request “evidence that
19 corroborates otherwise credible testimony”). On this
20 record, it was thus not unreasonable for the IJ to infer
21 that the Maoists targeted Khatri Chhetri to avenge a
22 comrade’s death, rather than because they believed that he,
23 like his uncle, would oppose a Maoist regime. See
5
1 Elias-Zacarias, 502 U.S. at 482; In re S-P-, 21 I. & N. Dec.
2 at 493-97.
3 Because the IJ reasonably concluded that Khatri Chhetri
4 failed to demonstrate that political opinion was a central
5 reason for his past persecution or feared future
6 persecution, the agency did not err in denying his
7 application for asylum and withholding of removal. See 8
8 U.S.C. §§ 1101(a)(42), 1231(b)(3)(A); 8 C.F.R.
9 § 1208.16(b)(1). As Khatri Chhetri did not challenge the
10 IJ’s denial of CAT relief before the BIA, and does not renew
11 his claim for such relief here, we deem that claim
12 abandoned.
13 For the foregoing reasons, the petition for review is
14 DENIED.
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
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