Sherpa v. Holder , 561 F. App'x 26 ( 2014 )

13-993
Sherpa v. Holder
BIA
Videla, IJ
A089 918 914
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 28th day of March, two thousand fourteen.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 ROBERT D. SACK,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 SINGE SHERPA,
14 Petitioner,
15
16 v. 13-993
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 New York.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; Stephen J. Flynn, Assistant
28 Director; Karen Stewart, Attorney,
29 Office of Immigration Litigation,
30 United States Department of Justice,
31 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
4 review is DENIED.
5 Singe Sherpa, a native and citizen of Nepal, seeks
6 review of a February 26, 2013 order of the BIA affirming the
7 June 28, 2011 decision of an Immigration Judge (“IJ”),
8 denying his application for asylum, withholding of removal,
9 and relief under the Convention Against Torture (“CAT”). In
10 re Singe Sherpa, No. A089 918 914 (B.I.A. Feb. 26, 2013),
11 aff’g No. A089 918 914 (Immig. Ct. N.Y. City June 28, 2011).
12 We assume the parties’ familiarity with the underlying facts
13 and procedural history in this case.
14 Under the circumstances of this case, we have reviewed
15 the IJ’s decision as modified by the BIA. See Xue Hong Yang
16 v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
17 The applicable standards of review are well established.
18 See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562
19 F.3d 510, 513 (2d Cir. 2009). Our scope of review is
20 limited to consideration of whether Sherpa met his burden of
21 proof for asylum, withholding of removal, and CAT relief,
22 because the BIA declined to address or explicitly affirm the
2
1 other aspects of the IJ’s decision. See Xue Hong Yang, 426
2 F.3d at 522.
3 Sherpa argues that he suffered past persecution at the
4 hands of Maoists in Nepal who threatened to take him by
5 force if he refused to join them. However, as Sherpa
6 testified, the Maoists did not physically harm him, but
7 merely threatened to do so. The agency therefore reasonably
8 found that the Maoists’ unfulfilled threats did not
9 constitute persecution. See Gui Ci Pan v. U.S. Attorney
10 Gen., 449 F.3d 408, 412 (2d Cir. 2006); Ivanishvili v. U.S.
11 Dep’t of Justice, 433 F.3d 332, 342 (2d Cir. 2006).
12 Sherpa also asserts that he established a well-founded
13 fear of future persecution by Maoists because he opposed
14 them politically as a member of the Nepalese Congress Party
15 (“NCP”). In order to demonstrate that persecution bears a
16 nexus to an applicant’s political opinion, the applicant
17 must show that the persecutor was motivated by his or her
18 perception of the applicant’s opinion, rather than merely by
19 his or her own opinion. See Yueqing Zhang v. Gonzales, 426
20 F.3d 540, 545 (2d Cir. 2005). Sherpa testified that the
21 Maoists targeted him because his father was a village chief
22 years earlier, and stated that even his wife did not have
3
1 knowledge that he was a member of the NCP. Furthermore, the
2 background materials, particularly the 2010 State Department
3 Human Rights Report and 2011 State Department Travel
4 Advisory, reflect that Maoists continued to foster violence
5 in Nepal through “arbitrary and unlawful killings,” but
6 indicate that they do not target any particular group of
7 people. Given the lack of evidence demonstrating that
8 Sherpa would be targeted by Maoists, the agency reasonably
9 found that he failed to establish an objectively reasonable
10 well-founded fear of persecution. See Melgar de Torres v.
11 Reno, 191 F.3d 307, 314 n.3 (2d Cir. 1999).
12 Because Sherpa was unable to show the objective fear of
13 harm needed to make out an asylum claim, he was necessarily
14 unable to meet the higher standard required to succeed on a
15 claim for withholding of removal and CAT relief. See Lecaj
16 v. Holder, 616 F.3d 111, 119-20 (2d Cir. 2010).
17 For the foregoing reasons, the petition for review is
18 DENIED.
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
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