Tamang v. Garland

19-3649
Tamang v. Garland
BIA
Christensen, IJ
A208 927 739
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.
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 29th day of June, two thousand twenty-one.
5
6 PRESENT:
7 RAYMOND J. LOHIER, JR.,
8 RICHARD J. SULLIVAN,
9 STEVEN J. MENASHI,
10 Circuit Judges.
11 _____________________________________
12
13 MAN BAHADUR TAMANG,
14 Petitioner,
15
16 v. 19-3649
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Dilli Raj Bhatta, Esq., Bhatta
24 Law & Associates, New York, NY.
25
26 FOR RESPONDENT: Ethan P. Davis, Acting Assistant
27 Attorney General, Civil Division;
28 Russell J. E. Verby, Senior
1 Litigation Counsel, Office of
2 Immigration Litigation; John D.
3 Williams, Trial Attorney, Office
4 of Immigration Litigation, United
5 States Department of Justice,
6 Washington, DC.
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioner Man Bahadur Tamang, a native and citizen of
12 Nepal, seeks review of an October 10, 2019 decision of the
13 BIA affirming a March 6, 2018 decision of an Immigration Judge
14 (“IJ”) denying asylum, withholding of removal, and protection
15 under the Convention Against Torture (“CAT”). In re Man
16 Bahadur Tamang, No. A 208 927 739 (B.I.A. Oct. 10, 2019),
17 aff’g No. A 208 927 739 (Immigr. Ct. N.Y. City Mar. 6, 2018).
18 We assume the parties’ familiarity with the underlying facts
19 and procedural history.
20 We have reviewed the IJ’s decision as modified by the
21 BIA and do not reach the credibility determination on which
22 the BIA did not rely. See Yan Chen v. Gonzales, 417 F.3d
23 268, 271–72 (2d Cir. 2005). The applicable standards of
24 review are well established. See 8 U.S.C. § 1252(b)(4)(B)
25 (“[T]he administrative findings of fact are conclusive unless
2
1 any reasonable adjudicator would be compelled to conclude to
2 the contrary[.]”); Lecaj v. Holder, 616 F.3d 111, 114 (2d
3 Cir. 2010) (“We review factual findings under the deferential
4 substantial evidence standard, treating them as conclusive
5 unless any reasonable adjudicator would be compelled to
6 conclude to the contrary. Legal questions, including mixed
7 questions of law and fact and the application of law to fact,
8 are reviewed de novo.”) (internal quotation marks and
9 citations omitted).
10 The agency did not err in concluding that Tamang failed
11 to meet his burden of proof for asylum. He had to show that
12 he was persecuted, or had a well-founded fear of persecution,
13 in Nepal based on his political opinion. See 8 U.S.C.
14 §§ 1101(a)(42), 1158(b)(1)(A), (B)(i). Tamang did not
15 establish that his past harm at the hands of Maoists rose to
16 the level of persecution, or that his fear of future
17 persecution was objectively reasonable given that his family
18 had continued to live safely in Nepal and had not been
19 contacted by Maoists since 2016.
20 I. Past Persecution
21 “[P]ersecution is ‘an extreme concept that does not
22 include every sort of treatment our society regards as
3
1 offensive.’” Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d
2 Cir. 2011) (quoting Ai Feng Yuan v. U.S. Dep’t of Justice,
3 416 F.3d 192, 198 (2d Cir. 2005)). It may include “non-life-
4 threatening violence and physical abuse,” but the harm must
5 be sufficiently severe, rising above “mere harassment.”
6 Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d
7 Cir. 2006) (internal quotation marks and brackets omitted).
8 “‘[T]he difference between harassment and persecution is
9 necessarily one of degree,’ . . . [and] the degree must be
10 assessed with regard to the context in which the mistreatment
11 occurs.” Beskovic v. Gonzales, 467 F.3d 223, 226 (2d Cir.
12 2006) (quoting Ivanishvili, 433 F.3d at 341). The agency
13 must consider the harm suffered in the aggregate. See
14 Poradisova v. Gonzales, 420 F.3d 70, 79–80 (2d Cir. 2005).
15 Tamang testified that he was threatened by Maoists in
16 his village on several occasions—specifically, that one
17 Maoist hit him in November 2015, and another assaulted his
18 wife in April 2016—because he refused to join their party and
19 instead supported the Nepali Congress Party. The agency did
20 not err in concluding that these incidents did not rise to
21 the level of persecution because Tamang was physically harmed
22 on only one occasion, he did not suffer any serious injury,
4
1 and the leader of the group of Maoists stopped the attack.
2 See Mei Fun Wong, 633 F.3d at 72; Jian Qiu Liu v. Holder, 632
3 F.3d 820, 822 (2d Cir. 2011) (finding no error in agency’s
4 conclusion that asylum applicant did not establish past
5 persecution where “he suffered only minor bruising from an
6 altercation with family planning officials, which required no
7 formal medical attention and had no lasting physical
8 effect”).
9 Tamang argues that the assault on his wife also
10 constituted persecution against him. However, “an asylum
11 applicant cannot claim past persecution based solely on harm
12 that was inflicted on a family member” and must generally
13 rely on harm that the applicant has suffered directly. Tao
14 Jiang v. Gonzales, 500 F.3d 137, 141 (2d Cir. 2007); see Shi
15 Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 308 (2d
16 Cir. 2007) (“[T]he statutory scheme unambiguously dictates
17 that applicants can become candidates for asylum relief only
18 based on persecution that they themselves have suffered or
19 must suffer.”).
20 II. Well-Founded Fear of Persecution
21 Because Tamang did not demonstrate past persecution, he
22 had the burden to demonstrate a well-founded fear of future
5
1 persecution, 8 C.F.R. § 1208.13(b)(1), (2), i.e., that his
2 fear was “objectively reasonable,” Ramsameachire v. Ashcroft,
3 357 F.3d 169, 178 (2d Cir. 2004). The agency did not err in
4 concluding that Tamang did not meet this burden.
5 Tamang’s interactions with Maoists occurred in his home
6 village and ceased when he relocated to Kathmandu between
7 2013 and 2015. His only evidence of Maoists’ continued
8 interest in him was their April 2016 assault on his wife in
9 their home village. But she and their children subsequently
10 moved to Kathmandu, where—at the time of Tamang’s hearing—
11 they had lived for approximately two years without being
12 located or contacted by Maoists. The BIA appropriately found
13 that the reasonableness of Tamang’s fear was “undermined” by
14 the fact that his family had remained unharmed in Nepal for
15 over two years. See Jian Xing Huang v. U.S. INS, 421 F.3d
16 125, 129 (2d Cir. 2005) (“In the absence of solid support in
17 the record . . . ,[applicant’s] fear is speculative at
18 best.”); Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir.
19 1999) (finding asylum applicant’s fear diminished because her
20 mother and daughters continued to live unharmed in her native
21 country). Tamang asserts that Maoists would locate him
22 anywhere in Nepal because they have made “persistent efforts”
6
1 to do so, Tamang Br. at 16; but this assertion is belied by
2 the record because Tamang testified that the last contact
3 they made with his family was in 2016 and that they never
4 contacted him outside of his village.
5 Because the agency did not err in finding that Tamang
6 did not meet his burden to show past harm rising to the level
7 of persecution or an objectively reasonable fear of future
8 harm in Kathmandu, it did not err in denying asylum and
9 withholding of removal. See 8 C.F.R. § 1208.13(b); Lecaj,
10 616 F.3d at 119.
11 We have considered all of Tamang’s remaining arguments
12 and find them to be without merit. Accordingly, the petition
13 for review is DENIED. All pending motions and applications
14 are DENIED and stays VACATED.
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe,
17 Clerk of Court
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