Gurung v. Holder , 445 F. App'x 446 ( 2011 )

10-4935-ag
Gurung v. Holder
BIA
Sichel, IJ
A099 073 331
A099 073 332
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 17th day of November, two thousand eleven.
PRESENT:
DENNIS JACOBS,
Chief Judge,
PETER W. HALL,
GERARD E. LYNCH,
Circuit Judges.
_______________________________________
TEKENDRA GURUNG, JAMUNA GURUNG,
Petitioners,
v. 10-4935-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONERS: Visuvanathan Rudrakumaran, New York,
NY.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Luis E. Perez, Senior
Litigation Counsel; Juria L. Jones,
Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
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.
Petitioners, natives and citizens of Nepal, seek review
of a November 12, 2010, order of the BIA affirming the April
10, 2008, decision of Immigration Judge (“IJ”) Helen Sichel,
denying their application for asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). In re Tekendra Gurung, Jamuna Gurung, Nos. A099
073 331/332 (B.I.A. Nov. 12, 2010), aff’g Nos. A099 073
331/332 (Immig. Ct. N.Y. City Apr. 10, 2008). We assume the
parties’ familiarity with the underlying facts and
procedural history in this case.
Under the circumstances of this case, we have reviewed
the IJ’s decision as supplemented by the BIA. See Yan Chen
v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
applicable standards of review are well-established. See 8
U.S.C. § 1252(b)(4); Yanqin Weng v. Holder, 562 F.3d 510,
513 (2d Cir. 2009). Because Petitioners do not challenge
the agency’s pretermission of their asylum application, the
only issue before us is whether the agency erred in denying
Petitioners’ application for withholding of removal and CAT
relief.
Eligibility for withholding of removal requires that it
is more likely than not that the applicant’s “life or
freedom would be threatened in [his] country . . . on
account of race, religion, nationality, membership in a
particular social group, or political opinion.” 8 C.F.R.
§ 1208.16(b). In support of Petitioners’ claim of political
persecution, Gurung submitted letters from his mother and a
municipal office stating that Maoists threatened his mother
and sought to discuss “personal matters” with him, but the
letters do not assert any political motivation for the
Maoists’ threats. Gurung also testified that Maoists
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indiscriminately demanded money from individuals, and that
the Maoists targeted Gurung due to their alleged belief that
he was corrupt. In light of that testimony, the IJ
reasonably concluded that Gurung failed to establish that he
would be targeted on account of a protected ground.
Petitioners contend that the agency failed to give
proper weight to Gurung’s testimony regarding NCP officials’
warning that the Maoists targeted Gurung because he had
participated as a NCP member. However, the IJ reasonably
found that the conversation was insufficient alone to
establish the requisite nexus between the attempted
extortion and Gurung’s NCP activities. See Xiao Ji Chen v.
U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (the
weight to be accorded to evidence lies largely within the
agency’s discretion).
Moreover, Gurung testified that he could safely reside
in Nepal if he went into hiding, and that his mother (who
had also been a victim of attempted extortion by the
Maoists) and children have continued living there unharmed.
It was not improper for the agency to discount Petitioners’
claim that his life or freedom would be endangered in Nepal,
in light of the fact that a similarly-situated family member
remained there unharmed. See Melgar de Torres v. Reno, 191
F.3d 307, 313 (2d Cir. 1999). Petitioners’ argument that
the agency failed to consider the various articles and State
Department reports they submitted is also unavailing. Those
materials indicate nothing more particular than that Maoists
indiscriminately committed human rights violations. In any
event, the agency is not required to “expressly parse or
refute on the record each individual . . . piece of
evidence” so long as it makes adequate findings. See Wei
Guang Wang v. BIA, 437 F.3d 270, 273-75 (2d Cir. 2006)
(quotation marks omitted); see also Xiao Ji Chen, 471 F.3d
at 338 n.17.
Substantial evidence, therefore, supports the agency’s
finding that Petitioners failed to demonstrate a likelihood
that Gurung would be endangered, let alone tortured, in
Nepal. Thus, there is no basis on which to vacate the BIA’s
decision in that regard. See Yanqin Weng, 562 F.3d at 513.
Furthermore, the agency did not err in denying CAT relief
because Petitioners’ CAT claims were based on the same
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factual predicate as their withholding claims. See Paul v.
Gonzales, 444 F.3d 148, 155-56 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DENIED as moot. Any pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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