17-4082
Gurung v. Barr
BIA
Kolbe, IJ
A208 151 434
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 TO 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 3rd day of January, two thousand twenty.
PRESENT:
JON O. NEWMAN,
DEBRA ANN LIVINGSTON,
RICHARD J. SULLIVAN,
Circuit Judges.
_____________________________________
RADHA MAYA GURUNG,
Petitioner,
v. 17-4082
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Khagendra Gharti-Chhetry, New
York, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; Claire L.
Workman, Senior Litigation
Counsel; Nelle M. Seymour, 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.
Petitioner Radha Maya Gurung, a native and citizen of
Nepal, seeks review of a December 4, 2017, decision of the
BIA affirming a March 20, 2017, decision of an Immigration
Judge (“IJ”) denying her asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”). In re
Radha Maya Gurung, No. A208 151 434 (B.I.A. Dec. 4, 2017),
aff’g No. A208 151 434 (Immig. Ct. N.Y. City Mar. 20, 2017).
We assume the parties’ familiarity with the underlying facts
and procedural history in this case.
Because the BIA’s opinion “closely tracks the IJ’s
reasoning,” we have reviewed both the IJ’s and the BIA’s
opinions “for the sake of completeness.” Wangchuck v. Dep’t
of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review
the agency’s findings of fact under the substantial evidence
standard. See Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d
Cir. 2018). Under this standard, “[w]e treat factual
findings as ‘conclusive unless any reasonable adjudicator
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would be compelled to conclude to the contrary.’” Id.
(quoting 8 U.S.C. § 1252(b)(4)(B)).
The agency did not err in concluding that Gurung failed
to satisfy her burden of proof for asylum, withholding of
removal, and CAT relief based on her claim that Maoists
threatened her and beat her mother to force them to leave the
Nepali Congress Party for the Maoist Party. To establish
eligibility for asylum, an applicant must show that she has
suffered past persecution or has a well-founded fear of future
persecution on account of race, religion, nationality,
membership in a particular social group, or political
opinion. 8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(A), (B)(i).
Past Persecution
A valid past persecution claim can be based on harm other
than threats to life or freedom, including “non-life-
threatening violence and physical abuse,” Beskovic v.
Gonzales, 467 F.3d 223, 226 n.3 (2d Cir. 2006)(citing Chen v.
INS, 359 F.3d 121, 128–29 (2d Cir. 2004)), but the harm must
be sufficiently severe, rising above “mere harassment,”
Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d
Cir. 2006)(citing Chen, 359 F.3d at 128). In evaluating a
past persecution claim, the agency must consider the harm
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suffered in the aggregate. Poradisova v. Gonzales, 420 F.3d
70, 79-80 (2d Cir. 2005).
The agency did not err in finding that Gurung’s
experiences in Nepal did not constitute persecution.
Gurung’s claim of past persecution rested on unfulfilled
threats directed at her, and an incident during which her
mother was forced to attend a Maoist meeting and beaten on
the way to the meeting. These incidents, even considered
cumulatively, did not constitute persecution against Gurung.
See Ci Pan v. U.S. Att’y Gen., 449 F.3d 408, 412-13 (2d Cir.
2006) (recognizing that unfulfilled threats do not amount to
persecution); Tao Jiang v. Gonzales, 500 F.3d 137, 141 (2d
Cir. 2007) (providing that an asylum applicant cannot
establish persecution based on harm to a family member unless
the applicant shared or was perceived to share the persecuted
characteristic with the family member, was “within the zone
of risk when the family member was harmed, and suffered some
continuing hardship after the incident”).
Well-Founded Fear of Future Persecution
Absent past persecution, an alien may establish
eligibility for asylum by demonstrating a well-founded fear
of future persecution. 8 C.F.R. § 1208.13(b)(2). To
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establish a well-founded fear of persecution, an applicant
must show that she “subjectively fears persecution” and that
“h[er] fear is objectively reasonable.” Ramsameachire v.
Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004)(citing Abankwah v.
INS, 185 F.3d 18, 22 (2d Cir. 1999)).
The agency reasonably determined that Gurung’s fear of
persecution in Nepal was not objectively reasonable.
Gurung’s testimony about her most recent threats lacked any
details about how and why she believed they were politically
motivated. Further, there was no country conditions evidence
in the record indicating that Maoist violence remains a
widespread problem or that Maoists target Nepali Congress
Party members such as Gurung.
On this record, the agency reasonably concluded that
Gurung failed to establish a well-founded fear of
persecution. See Ramsameachire, 357 F.3d at 178; 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
applicant’s] fear is speculative at best.”)(citing INS v.
Cardoza-Fonesca, 480 U.S. 421, 440 (1987)). Accordingly, the
agency did not err in denying asylum, withholding of removal,
and CAT relief because all three claims were based on the
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same factual predicate. See Paul v. Gonzales, 444 F.3d 148,
156-57 (2d Cir. 2006).
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
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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