08-5280-ag
Sherpa v. Holder
BIA
Hladylowycz, IJ
A079 509 324
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 4 th day of February, two thousand ten.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 BARRINGTON D. PARKER,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _______________________________________
12
13 WONGCHHU SHERPA,
14 Petitioner,
15
16 v. 08-5280-ag
17 NAC
18 ERIC H. HOLDER JR., 1 UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
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1
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric. H. Holder Jr. is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
1 FOR PETITIONER: Khagendra Gharti-Chhetry, New York,
2 New York.
3
4 FOR RESPONDENT: Michael F. Hertz, Acting Assistant
5 Attorney General; William C.
6 Peachey, Assistant Director; Ada E.
7 Bosque, Attorney; Office of
8 Immigration Litigation, United
9 States Department of Justice,
10 Washington, D.C.
11
12 UPON DUE CONSIDERATION of this petition for review of a
13 Board of Immigration Appeals (“BIA”) decision, it is hereby
14 ORDERED, ADJUDGED, AND DECREED that the petition for review
15 is DENIED.
16 Petitioner Wongchhu Sherpa, a native and citizen of
17 Nepal, seeks review of a September 30, 2008 order of the BIA
18 affirming the May 19, 2003 decision of Immigration Judge
19 (“IJ”) Roxanne C. Hladylowycz, denying Sherpa’s application
20 for asylum, withholding of removal, and relief under the
21 Convention Against Torture (“CAT”). In re Wongchhu Sherpa,
22 No. A079 509 324 (B.I.A. Sept. 30, 2008), aff’g No. A079 509
23 324 (Immig. Ct. N.Y. City May 19, 2003). We assume the
24 parties’ familiarity with the underlying facts and
25 procedural history in this case.
26 When the BIA adopts the decision of the IJ and
27 supplements the IJ’s decision, this Court reviews the
28 decision of the IJ as supplemented by the BIA. See Yan Chen
29 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the
2
1 agency’s factual findings under the substantial evidence
2 standard. See 8 U.S.C. § 1252(b)(4)(B); see also Manzur v.
3 DHS, 494 F.3d 281, 289 (2d Cir. 2007). Questions of law and
4 the application of law to undisputed fact are reviewed de
5 novo. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d
6 Cir. 2008).
7 The agency did not err in denying Sherpa’s application
8 for asylum and withholding of removal based on his failure
9 to show a nexus to a protected ground. See 8 U.S.C.
10 § 1101(a)(42); See Jiang v. Gonzales, 500 F.3d 137, 142 (2d
11 Cir. 2007). The agency rejected Sherpa’s proposed
12 particular social group, which he defined as wealthy Sherpa
13 landowners who are involved with the Congress Party. See In
14 re Acosta, 19 I. & N. Dec. at 211 (BIA 1985) (An “immutable
15 characteristic” is one that members of the group “either
16 cannot change, or should not be required to change because
17 it is fundamental to their individual identities or
18 consciences.”). The agency reasonably concluded that
19 “wealth” was not an immutable characteristic that could be
20 used to define a social group. See Saleh v. U.S. Dep’t of
21 Justice, 962 F.2d 234, 240 (2d Cir. 1992) (holding that
22 “poor” Yemeni Muslims are not a particular social group
3
1 because group “posses[es] broadly-based characteristics”);
2 see also Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73-74 (2d Cir.
3 2007) (finding reasonable the BIA’s conclusion that
4 “affluent Guatemalans” did not constitute a cognizable
5 social group). Further, as the BIA observed, the record
6 indicated that the Maoists targeted the entire Nepalese
7 population and that Sherpa presented “no evidence to suggest
8 that his status as a land owner or as a Sherpa contributed
9 to the threats he received.” Therefore, the agency
10 reasonably found both that the social group Sherpa described
11 was not cognizable and that, even if it was, the Maoists
12 were not motivated to persecute him, even in part, on
13 account of his membership in that group. See Ucelo-Gomez,
14 509 F.3d at 73-74.
15 While Sherpa argues that the BIA failed to consider his
16 imputed political opinion claim, the BIA reasonably found
17 that there was “simply no evidence that the extortion
18 threats he received were motivated even in part by his
19 political leanings.” Indeed, Sherpa admitted that his
20 political involvement was minimal. Additionally, while
21 Sherpa argues that the BIA failed to consider the testimony
22 of his witness, the BIA specifically considered that
4
1 testimony, observing that the witness testified that the
2 Maoists’ motivation to target Sherpa was “totally
3 economical.” In view of this and other record evidence, we
4 find no error in the BIA’s conclusion that the Maoists were
5 not motivated to target Sherpa, even in part, because they
6 believed he held a political opinion antithetical to their
7 own.
8 Because the agency’s nexus findings are dispositive of
9 Sherpa’s asylum and withholding of removal claims, we
10 decline to address Sherpa’s argument that the BIA erred by
11 failing to address the evidence he submitted concerning
12 whether he could relocate within Nepal. Finally, because
13 the parties’ stipulated agreement did not remand to the
14 agency for it to consider CAT relief, and the BIA did not
15 consider that form of relief on remand, Sherpa’s challenge
16 to the agency’s denial of CAT relief is unexhausted. See
17 8 U.S.C. § 1252(d)(1); Karaj v. Gonzales, 462 F.3d 113, 119
18 (2d Cir. 2006).
19 For the foregoing reasons, the petition for review is
20 DENIED.
21
22 FOR THE COURT:
23 Catherine O’Hagan Wolfe, Clerk
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