11-4852
Gurung v. Holder
BIA
Morace, IJ
A089 918 948/949
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 Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 5th day of March, two thousand fourteen.
PRESENT:
JON O. NEWMAN,
REENA RAGGI,
RICHARD C. WESLEY,
Circuit Judges.
_______________________________________
BISHNU GURUNG, KARMA GURUNG,
Petitioners,
v. 11-4852
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Khagendra Gharti-Chhetry, New York,
NY.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; Shelley R. Goad,
Assistant Director; Carmel A.
Morgan, 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 DISMISSED, in part, and DENIED, in part.
Bishnu and Karma Gurung (“Petitioners”), natives and
citizens of Nepal, seek review of an October 18, 2011,
decision of the BIA affirming the February 22, 2010,
decision of Immigration Judge (“IJ”) Philip L. Morace
denying their application for asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). In re Bishnu Gurung, Karma Gurung, Nos. A089 918
948/949 (B.I.A. Oct. 18, 2011), aff’g Nos. A089 918 948/949
(Immig. Ct. N.Y. City Feb. 22, 2010). We assume the
parties’ familiarity with the underlying facts and
procedural history in this case.
Under the circumstances of this case, we have reviewed
the IJ’s decision as supplemented by the BIA. See Yan Chen
v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
applicable standards of review are well-established. See
8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d
510, 513 (2d Cir. 2009).
2
Under 8 U.S.C. § 1252(d)(1), we “may review a final
order of removal only if . . . the alien has exhausted all
administrative remedies available to the alien as of right.”
This jurisdictional rule is absolute with respect to the
requirement that on appeal to the BIA, the alien must raise
each category of relief subsequently raised in this Court.
See Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir. 2006).
Here, in addition to the fact that the argument in
Petitioners’ brief addresses a CAT claim entirely unrelated
to their situation or to Nepal, Petitioners failed to
challenge the IJ’s denial of CAT relief in their appeal to
the BIA. Thus, as a statutory matter, we are without
jurisdiction to consider their challenge to the denial of
that relief. See 8 U.S.C. § 1252(d)(1).
In addition to the statutory requirement that
petitioners exhaust the categories of relief they seek,
petitioners must also raise to the BIA the specific issues
they later raise in this Court. See Foster v. INS, 376 F.3d
75, 78 (2d Cir. 2004). While not jurisdictional, this
judicially imposed exhaustion requirement is mandatory. Lin
Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d
Cir. 2007). Accordingly, because Petitioners failed to
3
raise the claim that there was a pattern or practice of
persecution in Nepal in their appeal to the BIA, and because
the government has raised this failure to exhaust, we
decline to consider this issue. See id. at 124 (describing
the issue exhaustion requirement as an “affirmative defense
subject to waiver”).
Furthermore, the agency did not err in finding that
Petitioners failed to establish an objectively reasonable
fear of future persecution because they did not show that
anyone in Nepal sought to harm them or that they were
similarly situated to anyone targeted by the Maoists, or
that their sons, or other family members remaining in Nepal,
had been harmed in any way. See Hongsheng Leng v. Mukasey,
528 F.3d 135, 143 (2d Cir. 2008) (“to establish a well-
founded fear of persecution in the absence of any evidence
of past persecution, an alien must make some showing that
authorities in his country of nationality are either aware
of his activities or likely to become aware of his
activities”); Jian Xing Huang v. INS, 421 F.3d 125, 128-29
(2d Cir. 2005) (holding that, absent solid support in the
record for the petitioner’s assertion that he would be
subjected to persecution, his fear was “speculative at
4
best”); Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir.
1999) (concluding that where asylum applicant’s mother and
daughters continued to live in petitioner’s native country,
a claim of well-founded fear was diminished). Moreover,
absent a connection to a protected ground, high levels of
general crime and violence are insufficient to establish
eligibility for asylum. See Melgar de Torres, 191 F.3d at
314.
Because Petitioners failed to show a well-founded fear
of future persecution, the agency did not err in denying
their application for asylum. See 8 U.S.C. § 1101(a)(42);
Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).
As Petitioners could not show a well-founded fear of future
persecution, they necessarily could not meet the higher
burden of proof required to establish eligibility for
withholding of removal. See 8 C.F.R. § 1208.16(b)(1); Paul
v. Gonzales, 444 F.3d 148, 155-56 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DISMISSED, in part, and DENIED, in part. As we have
completed our review, any stay of removal that the Court
previously granted in this petition is VACATED, and any
pending motion for a stay of removal in this petition is
DISMISSED as moot. Any pending request for oral argument in
5
this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
6