Sherpa v. Barr ( 2020 )

18-1517
Sherpa v. Barr
BIA
Christensen, IJ
A202 130 883
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 23rd day of July, two thousand twenty.
PRESENT:
REENA RAGGI,
DEBRA ANN LIVINGSTON,
JOSEPH F. BIANCO,
Circuit Judges.
_____________________________________
NIMA SANGE SHERPA,
Petitioner,
v. 18-1517
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Khagendra Gharti-Chhetry, New
York, NY.
FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
General; Stephen J. Flynn,
Assistant Director; Annette M.
Wietecha, 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 Nima Sange Sherpa, a native and citizen of
Nepal, seeks review of a May 2, 2018 decision of the BIA
affirming a June 22, 2017 decision of an Immigration Judge
(“IJ”) denying Sherpa’s application for asylum, withholding
of removal, and relief under the Convention Against Torture
(“CAT”). In re Nima Sange Sherpa, No. A 202 130 883 (B.I.A.
May 2, 2018), aff’g No. A 202 130 883 (Immig. Ct. N.Y. City
June 22, 2017). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
Assuming arguendo that Sherpa experienced past
persecution when Maoists threatened and attacked him on
account of his involvement with the Nepali Congress Party
(“NCP”) and that he was therefore entitled to a presumption
of a well-founded fear of future persecution, the agency did
not err in concluding that Sherpa was not eligible for relief
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because the presumption was rebutted by evidence showing that
he could safely and reasonably relocate in Nepal. See
8 C.F.R. § 1208.13(b)(1); Surinder Singh v. BIA, 435 F.3d
216, 219 (2d Cir. 2006) (“Asylum in the United States is not
available to obviate re-location to sanctuary in one’s own
country.”). In determining whether internal relocation
is reasonable, the agency “consider[s] . . . whether the
applicant would face other serious harm in the place of
suggested relocation; any ongoing civil strife within the
country; administrative, economic, or judicial
infrastructure; geographical limitations; and social and
cultural constraints, such as age, gender, health, and social
and familial ties.” 8 C.F.R. § 1208.13(b)(3).
Substantial evidence supports the agency’s conclusion
that Sherpa could reasonably relocate within Nepal because he
previously relocated to Kathmandu and lived there for eight
or nine months without experiencing any harm. Sherpa
asserted that he felt unsafe in Kathmandu because the Maoists’
leaders lived there, and that he was therefore “virtually in
hiding” during this period. Certified Administrative Record
(“CAR”) at 238. But he also claimed that he was able to
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travel between his home and work without incident. There is
no evidence that Maoists in Kathmandu were interested in
harming Sherpa, or that the Maoists who had previously
threatened him ever contacted or attempted to contact him or
his family—which has since moved to a nearby village—anywhere
but in the village where he was previously abused.
The agency also accurately discussed the country
conditions evidence, which showed that: (1) the armed
conflict with the Maoists formally ended in 2006; (2) there
was some Maoist violence in connection with the 2013 election
but the elections were free and fair; (3) the NCP became the
controlling party in 2017 national elections; (4) the
previous Maoist prime minister peacefully stepped aside
following those elections; (5) the breakaway Maoist factions
that continue to cause some violence are not part of the
unified national Maoist party; and (6) Nepali police arrest
Maoists engaged in violence. While the agency did not
explicitly discuss whether social or economic constraints
rendered relocation unreasonable, the relevant regulation
instructs that these “factors may, or may not, be relevant,
depending on all the circumstances of the case, and are not
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necessarily determinative of whether it would be reasonable
for the applicant to relocate.” 8 C.F.R. § 1208.13(b)(3).
And Sherpa’s previous period living and working in Kathmandu
established the social and economic feasibility of such a
relocation.
Because Sherpa’s claims all rested on the same factual
predicate and the agency reasonably found that Sherpa did not
have a well-founded fear of persecution as required for
asylum, he “necessarily” failed to meet the higher standards
for withholding of removal and CAT relief. Lecaj v. Holder,
616 F.3d 111, 119–20 (2d Cir. 2010).
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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