13-3432
Gurung v. Holder
BIA
Nelson, I.J.
A089 908 491
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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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 25th day of November, two thousand fourteen.
PRESENT:
JOHN M. WALKER, JR.,
REENA RAGGI,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
KAL BAHADUR GURUNG,
Petitioner,
v. 13-3432
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Khagendra Gharti-Chhetry, New York,
New York.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; Lyle D. Jentzer, Jeffrey L.
Menkin, Senior Counsel for National
Security, National Security Unit,
Office of Immigration Litigation,
United States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED that the petition for
review is DISMISSED in part, DENIED in part, and GRANTED in
part.
Kal Bahadur Gurung, a native and citizen of Nepal,
seeks review of an August 14, 2013, decision of the BIA
affirming the November 4, 2011, decision of an Immigration
Judge (“IJ”) denying asylum, withholding of removal, and
Convention Against Torture (“CAT”) relief. In re Kal
Bahadur Gurung, No. A089 908 491 (B.I.A. Aug. 14, 2013),
aff’g No. A089 908 491 (Immig. Ct. N.Y. City Nov. 4, 2011).
We assume the parties’ familiarity with the underlying facts
and procedural history of this case.
Under the circumstances of this case, we have reviewed
the IJ’s and BIA’s opinions. See Zaman v. Mukasey, 514 F.3d
233, 237 (2d Cir. 2008). The 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).
The agency rejected Gurung’s claims for asylum,
withholding of removal and CAT relief on various alternative
grounds, finding that his asylum claim was not timely
presented; that his asylum and withholding claims are barred
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because he gave “material support” to a terrorist
organization, and in any event are without merit because his
testimony lacked credibility and because even if his
testimony were credited, he had failed to establish that he
faced harm due to his actual or imputed political opinion;
and that his CAT claim failed because he had not established
that he would more likely than not be tortured if he
returned to Nepal.
We dismiss the petition as to asylum because we lack
jurisdiction to review the agency’s determination that
Gurung’s asylum application was untimely. See 8 U.S.C.
§ 1158(a)(2)(B),(3). Although we retain jurisdiction to
review “constitutional claims or questions of law” relating
to that determination, 8 U.S.C. § 1252(a)(2)(D), Gurung
merely disputes the agency’s factual findings and does not
raise a reviewable constitutional claim or question of law.
We deny the petition as to withholding of removal and
CAT relief. To qualify for withholding of removal, an
applicant must show that it is more likely than not that his
or her “life or freedom would be threatened in the proposed
country of removal on account of race, religion,
nationality, membership in a particular social group, or
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political opinion.” 8 C.F.R. § 1208.16(b); Ramsameachire v.
Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). Substantial
evidence supports the agency’s finding that the Maoists’
interest in Gurung was not related to his membership in the
National Democratic Party (“NDP”), the only protected ground
identified by Gurung. Gurung testified that he joined the
NDP in 2005, but his asserted problems with the Maoists
began in 2002, predating his party membership. Gurung
testified that the Maoists wanted him to join their militia
in 2002, and abducted him in 2005 and brought him to a
training camp. However, Gurung offered no evidence that any
of these actions were taken on account of his political
beliefs. Because these past incidents are not related to a
protected ground, Gurung is not eligible for withholding of
removal. Cf. INS v. Elias-Zacarias, 502 U.S. 478 (1992)
(holding that forced recruitment by guerilla forces is not
per se persecution on account of a protected ground).
We also deny the petition as to CAT relief because the
record lacks particularized evidence showing a likelihood of
harm rising to the level of torture. Mu Xiang Lin v. U.S.
Dep’t of Justice, 432 F.3d 156, 160 (2d Cir. 2005).
As noted, the agency also determined that Gurung’s
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claims for asylum and withholding of removal are barred
because he gave “material support” to the Maoists, a
terrorist organization. Gurung contends that any support he
provided for the Maoists was de minimis and was provided
under duress. The agency rejected the former claim on the
merits, holding that the support was “material,” and held
that only the Secretaries of State and Homeland Security,
and not the BIA or the IJ, have authority to exempt an alien
from the terrorism bar on grounds of duress. We have
recently remanded cases to the BIA to clarify in
precedential opinions the meaning of the term “material,”
Ayvaz v. Holder, 564 F. App’x 625, 627-28 (2d Cir. 2014),
and whether there is an implicit duress exception, Ay v.
Holder, 743 F.3d 317, 320 (2d Cir. 2014). Although the
agency’s alternative determinations provide a sufficient
basis for dismissing the petition as to asylum, and denying
the petition as to withholding of removal and CAT relief,
the agency’s material support finding may impact Gurung’s
eligibility for future immigration benefits. See, e.g., 8
U.S.C. 1182(a)(3)(B)(iv)(VI). Consequently, the petition is
granted with respect to the agency’s material support
ruling, and this issue is remanded for further proceedings
consistent with this order. The agency may, if it chooses,
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vacate the finding of material support as unnecessary to the
resolution of the present matter, leaving the question of
whether Gurung is barred from future immigration benefits on
that basis for determination if and when he should apply for
such benefits.
For the foregoing reasons, the petition for review is
DISMISSED in part, DENIED in part, and GRANTED in part.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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