Gurung v. Holder

11-1942-ag
Gurung v. Holder
BIA
Videla, IJ
A088 527 868
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 16th day of February, two thousand twelve.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 JOSÉ A. CABRANES,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _______________________________________
12
13 LAXMI GURUNG,
14 Petitioner,
15
16 v. 11-1942-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Jason A. Nielson, Law Offices of
24 Thomas Mungoven, New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Richard M. Evans, Assistant
28 Director; Andrew Oliveira, Trial
29 Attorney, Office of Immigration
30 Litigation, United States Department
31 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Laxmi Gurung, a native and citizen of Nepal, seeks
6 review of an April 15, 2011, order of the BIA affirming the
7 July 14, 2009, decision of an Immigration Judge (“IJ”)
8 denying her application for asylum, withholding of removal,
9 and relief under the Convention Against Torture (“CAT”). In
10 re Laxmi Gurung, No. A088 527 868 (B.I.A. Apr. 15, 2011),
11 aff’g No. A088 527 868 (Immig. Ct. N.Y. City July 14, 2009).
12 We assume the parties’ familiarity with the underlying facts
13 and procedural history in this case.
14 Under the circumstances of this case, we have reviewed
15 the decision of the IJ as supplemented by the BIA. See Yan
16 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
17 applicable standards of review are well established. See
18 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d
19 510, 513 (2d Cir. 2009).
20 Gurung argues that the agency erred in finding that she
21 was not persecuted on account of her political opinion.
22 Section 101(a)(3) of the REAL ID Act, 8 U.S.C.
23 § 1158(b)(1)(B)(i), applicable here because Gurung filed her
24 application in 2007, see REAL ID Act § 101(h)(2), provides
2
1 that an asylum applicant “must establish that [a protected
2 ground] was or will be at least one central reason for” the
3 claimed persecution. See Castro v. Holder, 597 F.3d 93, 100
4 (2d Cir. 2010). The statements contained in Gurung’s
5 affidavit and testimony indicate that the Maoists came to
6 her home to recruit members for their protest rally, and
7 that it was her refusal to join, not her personal political
8 opinion, that resulted in the harm suffered and subsequent
9 visit and threats. Because the record shows that the
10 Maoists were motivated by a desire to fill their ranks, the
11 agency reasonably concluded that the harm suffered was not
12 on account of a protected ground. See INS v. Elias-
13 Zacarias, 502 U.S. 478, 482 (1992).
14 Although Gurung contends that the IJ failed to consider
15 Exhibit 5, the record shows that the IJ considered the
16 letters from Gurung’s mother and the village committee, but
17 ultimately based its finding on Gurung’s testimony, see Xiao
18 Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.
19 2006), from which a reasonable factfinder could conclude
20 that the Maoists’ objective was to recruit Gurung for
21 participation in their rally. See Matter of J-B- & S-M-, 24
22 I. & N. Dec. 208, 214 (BIA 2007); Siewe v. Gonzales, 480
3
1 F.3d 160, 167 (2d Cir. 2007) (“Where there are two
2 permissible views of the evidence, the factfinder’s choice
3 between them cannot be clearly erroneous.” (citation
4 omitted)). Accordingly, substantial evidence supports the
5 agency’s conclusion that Gurung did not demonstrate that the
6 harm she suffered, or her fear of future harm, bore a
7 sufficient nexus to a protected ground.
8 Having found that Gurung did not establish a sufficient
9 nexus to a protected ground, the agency did not err in
10 denying her asylum and withholding of removal. See Jin Jin
11 Long v. Holder, 620 F.3d 162, 166 (2d Cir. 2010); Matter of
12 C-T-L-, 25 I. & N. Dec. 341, 346 (BIA 2010) (holding that
13 the “one central reason” nexus standard of the REAL ID Act
14 applies to withholding of removal). Further, the agency
15 reasonably denied Gurung CAT relief, as neither Gurung nor
16 her family members had ever been arrested or detained in
17 Nepal, and the only instances of harm or mistreatment that
18 Gurung experienced in Nepal were insufficient to constitute
19 persecution, much less torture. See Elias-Zacarias, 502
20 U.S. at 482; Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d
21 Cir. 2011). Aside from country conditions evidence of
22 general human rights concerns in Nepal, Gurung failed to
4
1 provide any evidence showing that someone in her particular
2 circumstances would likely be tortured if returned to Nepal.
3 See Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 160
4 (2d Cir. 2005); see also Mu-Xing Wang v. Ashcroft, 320 F.3d
5 130, 144 (2d Cir. 2003).
6 Gurung’s challenge to the BIA’s adoption and affirmance
7 of the IJ’s decision is meritless. See Aslam v. Mukasey,
8 537 F.3d 110, 117 (2d Cir. 2008). Finally, we decline to
9 address Gurung’s argument that the IJ failed to admit
10 Exhibit 5 into evidence, as that specific argument was never
11 raised before the agency. See Foster v. U.S. INS, 376 F.3d
12 75, 78 (2d Cir. 2004); Lin Zhong v. U.S. Dep’t of Justice,
13 480 F.3d 104, 119-20 (2d Cir. 2007).
14 For the foregoing reasons, the petition for review is
15 DENIED. As we have completed our review, any stay of
16 removal that the Court previously granted in this petition
17 is VACATED, and any pending motion for a stay of removal in
18 this petition is DISMISSED as moot. Any pending request for
19 oral argument in this petition is DENIED in accordance with
20 Federal Rule of Appellate Procedure 34(a)(2) and Second
21 Circuit Local Rule 34.1(b).
22 FOR THE COURT:
23 Catherine O’Hagan Wolfe, Clerk
5