Garbuja v. Garland ( 2021 )

19-3058
Garbuja v. Garland
BIA
Douchy, IJ
A205 731 934
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 TO 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 Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 4th day of November, two thousand twenty-one.
PRESENT:
JON O. NEWMAN,
DENNY CHIN,
RICHARD J. SULLIVAN,
Circuit Judges.
_____________________________________
SURESH GARBUJA,
Petitioner,
v. 19-3058
NAC
MERRICK B. GARLAND, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Ramesh K. Shrestha, Esq., New
York, NY.
FOR RESPONDENT: Ethan P. Davis, Acting Assistant
Attorney General; Greg D. Mack,
Senior Litigation Counsel; Corey
L. Farrell, 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 Suresh Garbuja, a native and citizen of Nepal,
seeks review of an August 26, 2019, decision of the BIA
affirming a February 6, 2018, decision of an Immigration Judge
(“IJ”) denying asylum, withholding of removal, and protection
under the Convention Against Torture (“CAT”). In re Suresh
Garbuja, No. A 205 731 934 (B.I.A. Aug. 26, 2019), aff’g No.
A 205 731 934 (Immig. Ct. N.Y.C. Feb. 6, 2018). We assume the
parties’ familiarity with the underlying facts and procedural
history.
The agency reasonably determined that Garbuja did not
qualify for asylum or withholding of removal. It is
undisputed that Garbuja suffered past persecution.
Accordingly, the burden shifted to the Government to show, by
a preponderance of the evidence, that a fundamental change in
circumstances or the possibility of internal relocation could
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prevent future persecution. 8 C.F.R. §§ 1208.13(b)(1)
(asylum), 1208.16(b)(1)(i) (withholding of removal); Kone v.
Holder, 596 F.3d 141, 147 (2d Cir. 2010).
The IJ properly found that the Government met its burden
in showing that Garbuja could safely relocate. “For an
applicant to be able to internally relocate safely, there
must be an area of the country where he or she has no well-
founded fear of persecution.” Matter of M-Z-M-R-, 26 I. & N.
Dec. 28, 33 (B.I.A. 2012). The Government demonstrated that,
although Garbuja suffered persecution by Maoists in his home
village, he lived and worked unharmed in a different city,
Pokhara, for six years. His father and wife have relocated
as well, apparently without incident. See Melgar de Torres
v. Reno, 191 F.3d 307, 313 (2d Cir. 1999) (fear of persecution
is undermined when similarly situated family members remain
unharmed in the native country). The IJ was entitled to
reject Garbuja’s contention that he had lived “in hiding” in
Pokhara – he had worked in a public place as a waiter at a
hotel restaurant – as well as Garbuja’s unadorned assertion
that he would have been found by Maoists had he stayed in
Pokhara.
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The IJ’s finding that Garbuja could relocate within Nepal
is dispositive of asylum and withholding of removal. 8
C.F.R. §§ 1208.13(b)(1)(i)(B), 1208.16(b)(1)(i)(B).
Garbuja’s CAT claim also fails on this basis. Because he can
safely relocate, he has not shown that he is likely to be
tortured. Id. § 1208.16(c)(2), (3)(ii); see Lecaj v. Holder,
616 F.3d 111, 119–20 (2d Cir. 2010) (where record does not
show “chance of persecution required for the grant of asylum
. . . [it] necessarily fails to demonstrate the . . . more
likely than not to be tortured standard required for CAT
relief” (internal quotation marks and citations omitted)).
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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