Dipak Khatri Chhetri v. Holder

12-4380 Khatri Chhetri v. Holder BIA Segal, IJ A087 980 972 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 Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 3rd day of February, two thousand fourteen. 5 6 PRESENT: 7 REENA RAGGI, 8 DEBRA ANN LIVINGSTON, 9 GERARD E. LYNCH, 10 Circuit Judges. 11 _______________________________________ 12 13 DIPAK KHATRI CHHETRI, 14 Petitioner, 15 16 v. 12-4380 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _______________________________________ 22 23 FOR PETITIONER: Khagendra Gharti-Chhetry, New York, 24 NY. 25 26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant 27 Attorney General; Linda S. Wernery, 28 Assistant Director; James E. Grimes, 29 Senior Litigation Counsel, Office of 30 Immigration Litigation, United 31 States Department of Justice, 32 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 Dipak Khatri Chhetri, a native and citizen of Nepal, 6 seeks review of an October 10, 2012, decision of the BIA 7 affirming the March 1, 2011, decision of Immigration Judge 8 (“IJ”) Alice Segal, which denied his application for asylum, 9 withholding of removal, and relief under the Convention 10 Against Torture (“CAT”). In re Dipak Khatri Chhetri, No. 11 A087 980 972 (B.I.A. Oct. 10, 2012), aff’g No. A087 980 972 12 (Immig. Ct. N.Y. City Mar. 1, 2011). We assume the parties’ 13 familiarity with the underlying facts and procedural history 14 in this case. 15 Under the circumstances of this case, we have reviewed 16 both the IJ’s and the BIA’s opinions. See Zaman v. Mukasey, 17 514 F.3d 233, 237 (2d Cir. 2008). The applicable standards 18 of review are well-established. Where an “IJ found [an 19 applicant] to be credible, we treat the events [ ] he 20 experienced in the past as undisputed facts.” Castro v. 21 Holder, 597 F.3d 93, 99 (2d Cir. 2010) (internal quotation 22 marks omitted). “The agency’s findings of fact are 23 conclusive unless any reasonable adjudicator would be 2 1 compelled to conclude to the contrary.” Id. (internal 2 quotation marks omitted). Accordingly, we review factual 3 findings under the substantial evidence standard, which 4 requires that findings have a basis in “reasonable, 5 substantial and probative evidence in the record when 6 considered as a whole.” Iouri v. Ashcroft, 487 F.3d 76, 81 7 (2d Cir. 2007) (internal quotations marks omitted). 8 The IJ reasonably concluded that Khatri Chhetri did not 9 demonstrate that he was persecuted or holds a well-founded 10 fear of future persecution on account of political opinion. 11 Pursuant to the REAL ID Act, to establish that he was 12 persecuted “on account of” a political opinion, Khatri 13 Chhetri must show that the Maoist insurgents’ perception of 14 his political opinion was “at least one central reason” for 15 his persecution. See 8 U.S.C. §§ 1101(a)(42), 16 1158(b)(1)(B)(i); Castro, 597 F.3d at 100. 17 Khatri Chhetri asserts that the Maoists targeted him 18 because: (1) his uncle was a member of the Nepalese army and 19 had anti-Maoist political views; and (2) they interpreted 20 his report of his uncle’s murder to the police as a 21 political act of support for the Nepalese government and 22 opposition to the Maoist cause. A reasonable fact finder 3 1 would not be compelled to accept these arguments, however. 2 Although Maoists murdered Khatri Chhetri’s uncle because of 3 his uncle’s prior membership in the army and his refusal to 4 aid them, there is no evidence that the Maoists targeted any 5 other members of the uncle’s family. In particular, the 6 Maoists have not threatened or harmed Khatri Chhetri’s 7 father, a retired military officer. 8 Although an asylum applicant may satisfy the nexus 9 requirement by showing that he was persecuted due to imputed 10 political opinion, regardless of whether the imputation is 11 accurate, the IJ reasonably concluded that Khatri Chhetri 12 did not provide sufficient evidence that his persecutors 13 believed he held anti-Maoist political opinions. See 14 Delgado v. Mukasey, 508 F.3d 702, 706 (2d Cir. 2007). The 15 BIA has recognized “[t]he difficulty of determining motive 16 in situations of general civil unrest,” such as the conflict 17 between Maoists and the Nepalese government. In re S-P-, 21 18 I. & N. Dec. 486, 493 (BIA 1996). In such circumstances, 19 “the evidence must be evaluated in the context of the 20 ongoing civil conflict to determine whether the motive for 21 the abuse in the particular case was directed toward 22 punishing or modifying perceived political views . . . ; was 23 part of the violence inherent in an armed conflict (i.e., 4 1 lawful acts of war); or, was motivated by some other reason 2 unrelated to asylum law.” Id. at 493-94. 3 Under these circumstances, the IJ did not clearly err 4 by accepting one plausible interpretation of the Maoists’ 5 motives rather than another. Although it is certainly 6 possible that Maoist rebels deemed Khatri Chhetri’s police 7 report a political act, it is equally plausible that they 8 did not. Hostile actions by paramilitary groups are not per 9 se acts of persecution based on imputed political opinion 10 simply because those groups have political aims. See INS v. 11 Elias-Zacarias, 502 U.S. 478, 482 (1992) (holding that 12 actions by anti-government guerrilla group with political 13 agenda are not automatically politically driven). Here, the 14 only corroborating evidence Khatri Chhetri offered concerned 15 Maoist attacks on police stations in northwest Nepal, 16 evidence that does not bear on the insurgents’ motives for 17 targeting Khatri Chhetri. See 8 U.S.C. § 1158(b)(1)(B)(ii) 18 (granting IJ authority to request “evidence that 19 corroborates otherwise credible testimony”). On this 20 record, it was thus not unreasonable for the IJ to infer 21 that the Maoists targeted Khatri Chhetri to avenge a 22 comrade’s death, rather than because they believed that he, 23 like his uncle, would oppose a Maoist regime. See 5 1 Elias-Zacarias, 502 U.S. at 482; In re S-P-, 21 I. & N. Dec. 2 at 493-97. 3 Because the IJ reasonably concluded that Khatri Chhetri 4 failed to demonstrate that political opinion was a central 5 reason for his past persecution or feared future 6 persecution, the agency did not err in denying his 7 application for asylum and withholding of removal. See 8 8 U.S.C. §§ 1101(a)(42), 1231(b)(3)(A); 8 C.F.R. 9 § 1208.16(b)(1). As Khatri Chhetri did not challenge the 10 IJ’s denial of CAT relief before the BIA, and does not renew 11 his claim for such relief here, we deem that claim 12 abandoned. 13 For the foregoing reasons, the petition for review is 14 DENIED. 15 FOR THE COURT: 16 Catherine O’Hagan Wolfe, Clerk 17 18 19 20 21 6