Khatri v. Holder ( 2013 )

12-1953
Khatri v. Holder
BIA
Vomacka, IJ
A087 446 649
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 20th day of August, two thousand thirteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 RICHARD C. WESLEY,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 HARI BAHADUR KHATRI,
14 Petitioner,
15
16 v. 12-1953
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Jason A. Nielson, New York, NY.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Anthony C. Payne,
27 Senior Litigation Counsel; Jesse M.
28 Bless, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 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 Hari Bahadur Khatri, a native and citizen of Nepal,
6 seeks review of an April 26, 2012, decision of the BIA
7 affirming the June 23, 2010, decision of Immigration Judge
8 (“IJ”) Alan A. Vomacka, which denied his application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Hari Bahadur
11 Khatri, No. A087 446 649 (B.I.A. Apr. 26, 2012), aff’g No.
12 A087 446 649 (Immig. Ct. N.Y. City June 23, 2010). We
13 assume the parties’ familiarity with the underlying facts
14 and procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 the decision of the IJ as supplemented by the BIA. See Yan
17 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well-established. See
19 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
20
21
22
2
1 I. Asylum
2 We retain jurisdiction to review the pretermission of
3 Khatri’s asylum application only to the extent he raises a
4 colorable constitutional claim or question of law. See
5 8 U.S.C. § 1252(a)(2)(C),(D). Although Khatri’s argument
6 that the IJ ignored evidence in finding that the rise of
7 Maoists in the Nepalese government did not constitute
8 changed circumstances, raises a question of law, see Xiao Ji
9 Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 (2d Cir.
10 2006); Gui Yin Liu v. INS, 508 F.3d 716, 720 (2d Cir. 2007),
11 his argument lacks merit.
12 Khatri testified that he intended to return to Nepal
13 following the election of Maoists as the majority party in
14 the parliament in 2008 because the November 2006 peace
15 agreement between the Nepalese government and the Maoists
16 had signaled an easing of tension and Maoist-led violence;
17 he filed for asylum only after he realized that the Maoists
18 had continued to terrorize citizens. However, the 2009 U.S.
19 State Department Human Rights Report, which notes that
20 Maoists obtained a plurality in the Nepalese parliament in
21 April 2008, also states that the violence in the hands of
22 Maoists that had preexisted the 2006 peace agreement
3
1 continued thereafter. Khatri also testified that the
2 Maoists had harassed him both before and after the signing
3 of the peace agreement. Because the agency did not ignore
4 any evidence in finding that the substantial basis for
5 Khatri’s argument of changed circumstances—namely,
6 continued violence in the wake of the peace
7 agreement—occurred prior to the expiration of the one-year
8 filing deadline in May 2008, Khatri has not demonstrated any
9 reviewable error in the agency’s conclusion that he failed
10 to establish a change in circumstances excusing his delay in
11 filing his asylum application. See 8 C.F.R. § 1208.4(a)(4).
12 Moreover, even assuming changed circumstances as of
13 April 2008, the agency did not err in concluding that
14 Khatri’s eight-month delay in filing for asylum after the
15 alleged change in circumstances is presumptively
16 unreasonable. See id. (requiring that an application be
17 filed within a reasonable time after a change in
18 circumstances); 65 Fed. Reg. 76121-01 at 76123-24 (providing
19 that “waiting six months or longer after expiration or
20 termination of status [to apply for asylum] would not be
21 considered reasonable”). And, to the extent Khatri
22 challenges the IJ’s further finding that the elections did
4
1 little by way of changing the Maoists’ activities, his
2 argument essentially challenges the IJ’s factual findings
3 and does not raise a colorable constitutional claim or
4 question of law over which we retain jurisdiction. See Xiao
5 Ji Chen, 471 F.3d at 328-29.
6 II. Withholding of Removal and CAT Relief
7 The agency also reasonably determined that Khatri
8 failed to establish that he was or would be persecuted on
9 account of his membership in the Nepali Congress Party
10 (“NCP”) or any other protected ground. To establish
11 eligibility for withholding of removal, an applicant must
12 demonstrate that the persecution he suffered or fears was or
13 would be on account of a protected ground, which includes
14 political opinion, see 8 U.S.C. § 1231(b)(3)(A), and that
15 his protected status, and not some other factor, is a
16 central reason why he was or will be targeted for
17 persecution, see Rodas Castro v. Holder, 597 F.3d 93, 103
18 (2d Cir. 2010).
19 Khatri’s claim for relief centered on repeated demands
20 by Maoists that he abandon the NCP and fund their cause and
21 the allegation that following his failure to comply, the
22 Maoists abducted and beat him and also abducted his son.
23 Although an individual’s actual or imputed political opinion
5
1 may be a protected ground, see 8 U.S.C. § 1231(b)(3)(A),
2 recruitment efforts and extortion attempts do not inherently
3 constitute persecution on account of one of the protected
4 grounds, see INS v. Elias-Zacarias, 502 U.S. 478, 81 (1992)
5 (finding that forced recruitment of an individual by
6 guerilla forces is not per se persecution on account of a
7 protected ground); Ucelo-Gomez v. Mukasey, 509 F.3d 70, 74
8 (2d Cir. 2007) (holding that harm purely motivated by wealth
9 is not persecution). The IJ reasonably concluded that
10 Khatri’s testimony did not support his assertion that the
11 Maoists targeted him on account of a protected ground—his
12 political membership—given substantial evidence of the
13 financial motives for the attacks. See Elias-Zacarias, 502
14 U.S. at 81; Ucelo-Gomez, 509 F.3d at 74.
15 The IJ also reasonably found that Khatri failed to
16 establish that the Nepalese government was unwilling or
17 unable to protect him given his testimony that he never
18 notified police or other government officials when either he
19 or his son was abducted, and that the army, in fact, aided
20 in his son’s recovery when alerted by villagers of the
21 abduction. See Rizal v. Gonzales, 442 F.3d 84, 92 (2d Cir.
22 2006) (defining persecution as harm inflicted by a
23 governmental actor or independent actors who the government
6
1 is unwilling or unable to control). Accordingly, the IJ did
2 not err in denying withholding of removal. See 8 C.F.R.
3 § 1208.16(b)(1).
4 Given Khatri’s testimony that he did not seek aid from
5 Nepalese police or government officials when threatened or
6 abducted by Maoists, and the police involvement in the
7 rescue of his son from Maoists, the IJ also did not err in
8 denying CAT relief. See Khouzam v. Ashcroft, 361 F.3d 161,
9 171 (2d Cir. 2004) (noting that applicant for CAT relief
10 must show that torture would be perpetrated with the
11 government’s consent or acquiescence (including the concept
12 of wilful blindness)).1
13 For the foregoing reasons, the petition for review is
14 DENIED. As we have completed our review, any stay of
15 removal that the Court previously granted in this petition
16 is VACATED, and any pending motion for a stay of removal in
17 this petition is DISMISSED as moot. Any pending request for
1
Although the IJ may have erred by failing to give
sufficient consideration to Khatri’s assertion that his
assault at the hands of Maoists while on a “forced” walk
constituted torture, remand would be futile given the
alternative grounds for denying CAT relief. See Alam v.
Gonzales, 438 F.3d 184, 187-88 (2d Cir. 2006) (“[W]e are
not required to remand where there is no realistic
possibility that, absent the errors, the IJ or BIA would
have reached a different conclusion.” (internal citation
and quotation marks omitted)).
7
1 oral argument in this petition is DENIED in accordance with
2 Federal Rule of Appellate Procedure 34(a)(2), and Second
3 Circuit Local Rule 34.1(b).
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
8