Pun v. Holder

11-2134-ag
Pun v. Holder
BIA
Abrams, IJ
A099 536 260
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 9th day of August, two thousand twelve.
PRESENT:
JOSÉ A. CABRANES,
GERARD E. LYNCH,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
GUKARNA PUN,
Petitioner,
v. 11-2134-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Shifa Soressa, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney General;
William C. Peachey, Jr., Assistant
Director; Ada E. Bosque, 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.
Petitioner Gukarna Pun, a native and citizen of Nepal,
seeks review of an April 26, 2011, decision of the BIA
affirming the April 17, 2009, decision of Immigration Judge
(“IJ”) Steven R. Abrams denying his application for asylum,
withholding of removal and relief under the Convention Against
Torture (“CAT”). In re Gukarna Pun, No. A099 536 260 (B.I.A.
Apr. 26, 2011), aff’g No. A099 536 260 (Immig. Ct. N.Y. City
April 17, 2009). We assume the parties’ familiarity with the
underlying facts and procedural history of the case.
Because the BIA adopted, affirmed, and extended the IJ’s
decision, we review the two decisions in tandem. See Yanqin
Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). We review
“factual findings under the substantial evidence standard,”
Aliyev v. Mukasey, 549 F.3d 111, 115 (2d Cir. 2008), and
“defer to the BIA’s reasonable interpretations of the
immigration laws,” Li Yong Cao v. U.S. Dep’t of Justice, 421
F.3d 149, 156-57 (2d Cir. 2005). See also 8 U.S.C.
§ 1252(b)(4)(B).
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I. Asylum and Withholding of Removal
The BIA has defined persecution as a “threat to the life
or freedom of, or the infliction of suffering or harm upon,
those who differ in a way regarded as offensive.” Matter of
Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985), overruled, in
part, on other grounds, INS v. Cardoza-Fonseca, 480 U.S. 421(1987); accord Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d
332, 342 (2d Cir. 2006). The harm or suffering must be
inflicted in order to punish the individual for possessing a
belief or characteristic the persecutor seeks to overcome, and
inflicted either by the government of a country or by persons
or an organization that the government is unable or unwilling
to control. Acosta, 19 I. & N. Dec. at 222; see also Pavlova
v. INS, 441 F.3d 82, 85 (2d Cir. 2006). In addition, the harm
must be sufficiently severe, rising above “mere harassment.”
Ivanishvili, 433 F.3d at 341.
The agency reasonably concluded that the mistreatment
experienced by Pun did not rise to the level of persecution.
Pun argues that the mistreatment experienced by his brother
and other family members establishes that he experienced
persecution in Nepal. But “an applicant must rely upon harm
the applicant has suffered individually”; mistreatment
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experienced by others, even close family members, is not
sufficient to constitute harassment. Tao Jiang v. Gonzales,
500 F.3d 137, 141 (2d Cir. 2007).
Pun also argues that the threats made by the Maoists
constitute past persecution. Unfulfilled threats, however,
are also insufficient to demonstrate past persecution. See
Gui Ci Pan v. U.S. Att’y Gen., 449 F.3d 408, 412 (2d Cir.
2006). Pun further argues that his family’s displacement by
the Maoists constitutes past persecution. The agency,
however, reasonably concluded that this forced relocation did
not constitute persecution, because Pun failed to demonstrate
that “severe economic disadvantage” resulted from this
relocation. See Matter of T-Z-, 24 I. & N. Dec. 163, 173 (BIA
2007).
The agency also reasonably concluded that Pun failed to
demonstrate a well-founded fear of future persecution.
Although Pun testified that he feared that he would be
targeted by the Maoists on account of his political opinions,
he offered no evidence that the Maoists were aware of his
opinions and, in fact, testified that he had never expressed
his opinions “face to face” with the Maoists. None of the
letters he offered in support of his application indicate that
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the Maoist forces are still looking for Pun. Although Pun
argues that he has a well-founded fear of persecution based on
the general violence engaged in by the Maoists in Nepal, the
fact that the Maoists may act out of a “generalized political
motive,” rather than any actual or imputed political opinion
held by Pun is not sufficient to constitute persecution. See
INS v. Elias-Zacarias, 502 U.S. 478, 482 (1992) (internal
quotation marks omitted).
Pun further argues that the mistreatment experienced by
his brother in Nepal is sufficient evidence to establish that
he will be persecuted if he returns to Nepal. However, Pun
offers no evidence that he is likely to experience the same
problems encountered by his brother, particularly in light of
the fact that, unlike Pun, his brother was abducted by the
Maoist forces and escaped their forced military training. See
8 C.F.R. § 1208.13(b)(2)(iii) (providing that to demonstrate a
well-founded fear of persecution, an applicant must show
either that he “would be singled out individually for
persecution” or that there is a “pattern or practice . . . of
persecution of a group of persons similarly situated to the
applicant”). Therefore, as the agency reasonably found that
Pun failed to demonstrate either past persecution or a well-
founded fear of persecution, it did not err in denying his
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claims for asylum and for withholding of removal, which were
based on the same factual predicate. See 8 C.F.R.
§ 1208.13(b)(2)(iii); 8 C.F.R. § 1208.16(b)(2)(i); see also
Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
II. CAT Relief
Pun argues that the agency improperly determined that he
waived his CAT claim by failing to challenge it in his brief
to the BIA, and that he is eligible for CAT relief because the
background materials on Nepal reflect rising violence and
upheaval. Pun’s brief in the BIA, however, contained no
argument regarding the IJ’s denial of his request for CAT
relief. Accordingly, he failed to raise this avenue of relief
with the BIA. See Steevenez v. Gonzales, 476 F.3d 114, 117
(2d Cir. 2007). Because Pun failed to challenge the IJ’s
denial of relief under the CAT in his appeal to the BIA, we
lack jurisdiction to consider any challenge to the denial of
that relief. 8 U.S.C. § 1252(d)(1).
III. Motion to Remand
Finally, the agency did not abuse its discretion by
denying Pun’s motion to remand. See Sanusi v. Gonzales, 445
F.3d 193, 201 (2d Cir. 2006). Motions to remand are subject
to the same substantive requirements as motions to reopen,
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including the requirement that the “evidence sought to be
offered is material and was not available and could not have
been discovered or presented at the former hearing.”
8 C.F.R. § 1003.2(c); Matter of Coelho, 20 I. & N. Dec. 464(BIA 1992). In support of his motion, Pun presented articles
describing the deterioration of conditions in Nepal after the
resignation of the prime minister, and a letter from his
brother describing his experiences after returning to Nepal
from Dubai. However, because none of these materials
demonstrated that the Maoists would single Pun out for
persecution on the basis of his political beliefs, the
evidence was not material. See 8 C.F.R. §§ 1003.2(c),
1208.13(b)(2)(iii). Pun also failed to demonstrate that these
materials were unavailable to him when he first made his
petition. Accordingly, the BIA did not abuse its discretion
in denying Pun’s motion to remand.
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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