17-1135
Sherpa v. Barr
BIA
Vomacka, IJ
A089 252 045/046
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
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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 18th day of March, two thousand nineteen.
PRESENT:
ROBERT D. SACK,
DEBRA ANN LIVINGSTON,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
PASANG DAWA SHERPA, ANG CHHOKPA
SHERPA,
Petitioners,
v. 17-1135
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONERS: Ramesh K. Shrestha, New York, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; Paul Fiorino,
Senior Litigation Counsel; Erik R.
Quick, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, DC.
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 DENIED.
Petitioners Pasang Dawa Sherpa (“Sherpa”) and Ang Chhokpa
Sherpa, natives and citizens of Nepal, seek review of a March
28, 2017, decision of the BIA affirming a June 16, 2016,
decision of an Immigration Judge (“IJ”) denying Pasang Dawa
Sherpa’s application for asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”).1 In re
Pasang Dawa Sherpa, Ang Chhokpa Sherpa, Nos. A 089 252 045/046
(B.I.A. Mar. 28, 2017), aff’g Nos. A 089 252 045/046 (Immig.
Ct. N.Y. City June 16, 2016). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
Under the circumstances of this case, we have reviewed
both the IJ’s and BIA’s decisions. Wangchuck v. Dep’t of
Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review
the agency’s legal conclusions de novo and its factual
1 Petitioner Ang Chhokpa Sherpa is a derivative beneficiary
on the asylum application. Accordingly, this order refers
primarily to the lead petitioner.
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findings under the substantial evidence standard. Y.C. v.
Holder, 741 F.3d 325, 332 (2d Cir. 2013). “The
administrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B).
In denying Sherpa’s original petition for review, we
upheld the agency’s determination that Sherpa had not
suffered harm amounting to past persecution, and Sherpa does
not challenge that finding. Thus, he had the burden of
establishing a well-founded fear of future persecution. 8
U.S.C. §§ 1101(a)(42), 1158(b)(1)(B)(i). To do this, he was
required to show that he subjectively fears persecution and
that his fear is objectively reasonable. Ramsameachire v.
Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004); see also Jian
Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In
the absence of solid support in the record,” an asylum
applicant’s fear of persecution is “speculative at best”).
This can be satisfied either by establishing “a reasonable
possibility that [he] would be singled out individually for
persecution . . . or “a pattern or practice . . . of
persecution of a group of persons similarly situated to the
applicant on account of . . . political opinion.” 8 C.F.R.
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§ 1208.13(b)(2)(iii); Y.C., 741 F.3d at 332. As discussed
below, the agency reasonably concluded that Sherpa failed to
establish an objectively reasonable fear of persecution
because the letters from the witnesses in Nepal were entitled
to little evidentiary weight and the country conditions
evidence did not show continuing Maoist violence against
those who had refused to support the Maoists during the civil
armed conflict, which ended in 2006.
Between 2012 and 2015, Sherpa submitted the following
evidence from Nepal: letters from his brother, the local
village development committee, and his former neighbor, as
well as letters allegedly delivered by the Maoists to Sherpa’s
brother and a 2012 letter from a police inspector certifying
Sherpa’s brother’s report that he was beaten by Maoists. We
generally defer to the agency’s weighing of the evidence, and
the agency did not err in discounting these letters because
they were unsworn and authored by witnesses who were not
available for cross examination. Y.C., 741 F.3d at 334. And
the agency explained why the letters were unreliable:
Sherpa’s brother alleged that Sherpa was “tortured” by
Maoists in the past, which conflicted with Sherpa’s own
statements because he only alleged one instance of physical
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harm (that a Maoist hit him on the shoulder with the butt of
a gun in 2002); the village development committee’s and police
inspector’s letters were based almost entirely on information
provided by Sherpa’s brother; the letters were cursory and
did not give details; and the letters did not adequately
explain why the Maoists continued to target Sherpa or identify
any recent Maoist violence against other residents of his
village.
The lack of evidence that Maoists targeted anyone else
from Sherpa’s village, or continued to punish anyone who
refused to join or donate to their cause during the civil
war, made it unlikely that Maoists would seek to harm Sherpa
if he returns to Nepal. The agency also noted that there was
no explanation for why the Maoists waited until 2012 to begin
questioning Sherpa’s brother about Sherpa’s whereabouts and
found that this six-year gap further undermined the
plausibility of Sherpa’s evidence that Maoists continued to
look for him.
The agency also reasonably determined that the general
country conditions evidence undermined Sherpa’s fear of
future persecution. The most recent country reports stated
that Nepal had implemented a new constitution, held free
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elections, and that the Maoists participated in the
government as a minority party. The reports reflected that
Nepal was slowly moving forward with the establishment of a
Truth and Reconciliation Commission, and that some Maoists
had been prosecuted for prior violence. Sherpa submitted
news articles reporting on Maoist rallies and protests in
other regions of the country, including some reports of
physical violence in connection with a strike to protest the
new constitution. But the evidence did not reflect
continuing armed conflict or Maoist violence against those
who refused to support them during the civil war.
In sum, given the lack of any reliable objective evidence
that Maoists continued to target individuals who had refused
to support them during the civil war, substantial evidence
supports the agency’s determination that Sherpa’s continuing
fear of the Maoists was not objectively reasonable.
For the foregoing reasons, the petition for review is
DENIED. 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 this petition is DENIED in accordance with Federal Rule of
6
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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