Shrestha v. Garland

18-3816
Shrestha v. Garland
BIA
Christensen, IJ
A208 927 770
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
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 16th day of April, two thousand twenty-one.
5
6 PRESENT:
7 DEBRA ANN LIVINGSTON,
8 Chief Judge,
9 RICHARD C. WESLEY,
10 STEVEN J. MENASHI,
11 Circuit Judges.
12 _____________________________________
13
14 LAXMAN SHRESTHA,
15 Petitioner,
16
17 v. 18-3816
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.*
22 _____________________________________
23
24 FOR PETITIONER: Dilli Raj Bhatta, Esq., Bhatta
25 Law & Associates, New York, NY.
26
27 FOR RESPONDENT: Brian M. Boynton, Acting
28 Assistant Attorney General; Kohsei
29 Ugumori, Senior Litigation
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
General Merrick B. Garland is automatically substituted as Respondent.
1 Counsel; David J. Schor, Trial
2 Attorney, Office of Immigration
3 Litigation, United States
4 Department of Justice, Washington,
5 DC.
6
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 Laxman Shrestha, a native and citizen of
12 Nepal, seeks review of a November 29, 2018, decision of the
13 BIA affirming a November 2, 2017, decision of an Immigration
14 Judge (“IJ”) denying Shrestha’s application for asylum,
15 withholding of removal, and relief under the Convention
16 Against Torture (“CAT”). In re Laxman Shrestha, No. A208 927
17 770 (B.I.A. Nov. 29, 2018), aff’g No. A208 927 770 (Immig.
18 Ct. N.Y. City Nov. 2, 2017). We assume the parties’
19 familiarity with the underlying facts and procedural history.
20 We have reviewed both the BIA’s and IJ’s decisions “for
21 the sake of completeness.” Wangchuck v. Dep’t of Homeland
22 Sec., 448 F.3d 524, 528 (2d Cir. 2006). The standards of
23 review are well established. See 8 U.S.C. § 1252(b)(4)(B);
24 Lecaj v. Holder, 616 F.3d 111, 114 (2d Cir. 2010).
2
1 The agency did not err in concluding that Shrestha failed
2 to satisfy his burden of proof for asylum, withholding of
3 removal, and CAT relief based on his claim that Maoists
4 attempted to attack him in 2009 and threatened him in 2013 on
5 account of his membership in the Nepali Congress Party. To
6 establish eligibility for asylum, Shrestha was required to
7 show that he suffered past persecution, or that he has a well-
8 founded fear of future persecution, on account of his race,
9 religion, nationality, membership in a particular social
10 group, or political opinion. 8 U.S.C. §§ 1101(a)(42),
11 1158(b)(1)(A), (B)(i).
12 The agency did not err in concluding that Shrestha’s
13 experiences did not rise to the level of persecution because
14 he was not harmed in either incident, he did not have any
15 interaction with Maoists in Nepal during the four years
16 between the incidents or the one and a half years after the
17 second incident, and the Maoists’ threats went unfulfilled.
18 See Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d Cir. 2011)
19 (“[P]ersecution is an extreme concept that does not include
20 every sort of treatment our society regards as offensive.”
21 (internal quotation marks omitted)); Jian Qiu Liu v. Holder,
3
1 632 F.3d 820, 822 (2d Cir. 2011) (finding no error in the
2 agency’s determination that an alien failed to establish past
3 persecution when “he suffered only minor bruising from an
4 altercation with family planning officials, which required no
5 formal medical attention and had no lasting physical
6 effect”); Gui Ci Pan v. U.S. Att’y General, 449 F.3d 408,
7 412–13 (2d Cir. 2006) (concluding that unfulfilled threats do
8 not constitute persecution).
9 Absent past persecution, an alien may establish
10 eligibility for asylum by demonstrating a well-founded fear
11 of future persecution, “which requires that the alien present
12 credible testimony that he subjectively fears persecution and
13 establish that his fear is objectively reasonable.”
14 Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004);
15 see also 8 C.F.R. § 1208.13(b)(2). The agency did not err
16 in concluding that Shrestha failed to establish a well-
17 founded fear of persecution in Nepal because he remained
18 unharmed in Nepal for one and a half years after the 2013
19 threat and conditions in Nepal had improved significantly
20 since then. See Melgar de Torres v. Reno, 191 F.3d 307, 313
21 (2d Cir. 1999) (finding a fear of future persecution weakened
4
1 when similarly situated family members remain unharmed in
2 petitioner’s native country); see also Ramsameachire, 357
3 F.3d at 178. Because Shrestha does not have a well-founded
4 fear of persecution, the agency did not err in denying asylum,
5 withholding of removal, and CAT relief because all three
6 claims were based on the same factual predicate. See Lecaj,
7 616 F.3d at 119–20.
8 For the foregoing reasons, the petition for review is
9 DENIED. All pending motions and applications are DENIED and
10 stays VACATED.
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe,
13 Clerk of Court
5