Khadka v. Holder , 389 F. App'x 45 ( 2010 )

09-2829-ag
Khadka v. Holder
BIA
Balasquide, IJ
A094 778 595
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 3 rd day of August, two thousand ten.
PRESENT:
ROBERT D. SACK,
REENA RAGGI,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
PURNA BAHADUR KHADKA,
Petitioner,
v. 09-2829-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Ramesh K. Shrestha, New York, New
York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Ahn-Thu P. Mai-Windle,
Senior Litigation Counsel; Lynda A.
Do, Attorney, Office of Immigration
Litigation, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED that the petition for
review is DENIED.
Purna Bahadur Khadka, a native and citizen of Nepal,
seeks review of a June 4, 2009 order of the BIA affirming
the August 16, 2007 decision of Immigration Judge (“IJ”)
Javier Balasquide, which denied his application for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Purna Bahadur Khadka, No.
A094 778 595 (B.I.A. June 4, 2009), aff’g No. A094 778 595
(Immig. Ct. N.Y. City Aug. 16, 2007). We assume the
parties’ familiarity with the underlying facts and
procedural history in this case.
Because the BIA’s decision addressed only the IJ’s
nexus finding, we need not reach either the IJ’s adverse
credibility determination or his finding that Khadka failed
to demonstrate harm rising to the level of persecution.
See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,
522 (2d Cir. 2005). Accordingly, “we assume, but do not
determine,” Khadka’s credibility for purposes of our
analysis. Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.
2005). The applicable standards of review are well-
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established. See 8 U.S.C. § 1252(b)(4)(B); Manzur v. U.S.
Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007).
To establish eligibility for asylum and withholding of
removal, an alien must demonstrate that any persecution that
he has suffered or that he fears suffering is on account of
his race, religion, nationality, political opinion, or
membership in a particular social group. See 8 U.S.C.
§ 1101(a)(42) (asylum); id. § 1231(b)(3) (withholding of
removal). Under the REAL ID Act, an applicant must also
demonstrate that a protected ground “was or will be at least
one central reason for” the claimed persecution. Id.
§ 1158(b)(1)(B)(i) (emphasis added). In light of these
standards, we find no error in the agency’s determination
that Khadka failed to demonstrate that any harm he endured
bore a sufficient nexus to a protected ground.
Contrary to Khadka’s argument, the agency reasonably
determined that his wealth, and not his political opinion or
status as a member in the purported social group of “ex-army
men,” was the central reason for his persecution. See id.
Indeed, the record demonstrated that the Maoists who harmed
Khadka “took his house in order to get the money, and at
other times . . . indicated that they wanted 300,000 NP’s.”
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While Khadka asserts that the agency’s finding failed to
take into account the overall socio-political context in
Nepal, cf. Vumi v. Gonzales, 502 F.3d 150, 156-59 (2d Cir.
2007), the record does not compel such a conclusion. Far
from ignoring the fact that political turmoil existed
between the Nepali Congress Party and the Nepali Maoist
Party, the agency simply found that Khadka failed to
demonstrate a connection to the Nepali Congress Party that
would support the conclusion that the harm he suffered was
politically motivated. See 8 U.S.C. § 1158(b)(1)(B)(i).
Consequently, because Khadka failed to demonstrate that his
harm bore a sufficient nexus to a protected ground, his
applications for asylum and withholding of removal
necessarily fail. See id. §§ 1101(a)(42), 1231(b)(3).
No different conclusion is warranted with respect to
Khadka’s application for CAT relief, as the BIA reasonably
concluded that Khadka failed to demonstrate that it was more
likely than not that he would be tortured “by or at the
instigation of or with the consent or acquiescence of a
public official or other person acting in an official
capacity.” 8 C.F.R. § 1208.18(a)(1).
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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 DISMISSED 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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