Sherpa v. Holder

13-993 Sherpa v. Holder BIA Videla, IJ A089 918 914 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 28th day of March, two thousand fourteen. 5 6 PRESENT: 7 ROSEMARY S. POOLER, 8 ROBERT D. SACK, 9 GERARD E. LYNCH, 10 Circuit Judges. 11 _____________________________________ 12 13 SINGE SHERPA, 14 Petitioner, 15 16 v. 13-993 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 New York. 25 26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney 27 General; Stephen J. Flynn, Assistant 28 Director; Karen Stewart, Attorney, 29 Office of Immigration Litigation, 30 United States Department of Justice, 31 Washington, D.C. 1 UPON DUE CONSIDERATION of this petition for review of a 2 decision of the Board of Immigration Appeals (“BIA”), it is 3 hereby ORDERED, ADJUDGED, AND DECREED that the petition for 4 review is DENIED. 5 Singe Sherpa, a native and citizen of Nepal, seeks 6 review of a February 26, 2013 order of the BIA affirming the 7 June 28, 2011 decision of an Immigration Judge (“IJ”), 8 denying his application for asylum, withholding of removal, 9 and relief under the Convention Against Torture (“CAT”). In 10 re Singe Sherpa, No. A089 918 914 (B.I.A. Feb. 26, 2013), 11 aff’g No. A089 918 914 (Immig. Ct. N.Y. City June 28, 2011). 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 IJ’s decision as modified by the BIA. See Xue Hong Yang 16 v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). 17 The applicable standards of review are well established. 18 See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 19 F.3d 510, 513 (2d Cir. 2009). Our scope of review is 20 limited to consideration of whether Sherpa met his burden of 21 proof for asylum, withholding of removal, and CAT relief, 22 because the BIA declined to address or explicitly affirm the 2 1 other aspects of the IJ’s decision. See Xue Hong Yang, 426 2 F.3d at 522. 3 Sherpa argues that he suffered past persecution at the 4 hands of Maoists in Nepal who threatened to take him by 5 force if he refused to join them. However, as Sherpa 6 testified, the Maoists did not physically harm him, but 7 merely threatened to do so. The agency therefore reasonably 8 found that the Maoists’ unfulfilled threats did not 9 constitute persecution. See Gui Ci Pan v. U.S. Attorney 10 Gen., 449 F.3d 408, 412 (2d Cir. 2006); Ivanishvili v. U.S. 11 Dep’t of Justice, 433 F.3d 332, 342 (2d Cir. 2006). 12 Sherpa also asserts that he established a well-founded 13 fear of future persecution by Maoists because he opposed 14 them politically as a member of the Nepalese Congress Party 15 (“NCP”). In order to demonstrate that persecution bears a 16 nexus to an applicant’s political opinion, the applicant 17 must show that the persecutor was motivated by his or her 18 perception of the applicant’s opinion, rather than merely by 19 his or her own opinion. See Yueqing Zhang v. Gonzales, 426 20 F.3d 540, 545 (2d Cir. 2005). Sherpa testified that the 21 Maoists targeted him because his father was a village chief 22 years earlier, and stated that even his wife did not have 3 1 knowledge that he was a member of the NCP. Furthermore, the 2 background materials, particularly the 2010 State Department 3 Human Rights Report and 2011 State Department Travel 4 Advisory, reflect that Maoists continued to foster violence 5 in Nepal through “arbitrary and unlawful killings,” but 6 indicate that they do not target any particular group of 7 people. Given the lack of evidence demonstrating that 8 Sherpa would be targeted by Maoists, the agency reasonably 9 found that he failed to establish an objectively reasonable 10 well-founded fear of persecution. See Melgar de Torres v. 11 Reno, 191 F.3d 307, 314 n.3 (2d Cir. 1999). 12 Because Sherpa was unable to show the objective fear of 13 harm needed to make out an asylum claim, he was necessarily 14 unable to meet the higher standard required to succeed on a 15 claim for withholding of removal and CAT relief. See Lecaj 16 v. Holder, 616 F.3d 111, 119-20 (2d Cir. 2010). 17 For the foregoing reasons, the petition for review is 18 DENIED. 19 FOR THE COURT: 20 Catherine O’Hagan Wolfe, Clerk 21 22 23 4