Gurung v. Barr

18-1860 Gurung v. Barr BIA Wright, IJ A201 125 997/998 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. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 17th day of August, two thousand twenty. 5 6 PRESENT: 7 GUIDO CALABRESI, 8 DENNY CHIN, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 RAJU PUNCHO GURUNG, AKA 14 RAJUPUNCHO GURUNG, SUJAN GURUNG, 15 Petitioners, 16 17 v. 18-1860 18 NAC 19 WILLIAM P. BARR, UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONERS: Gary J. Yerman, Esq., New York, 25 NY. 26 27 FOR RESPONDENT: Ethan P. Davis, Acting Assistant 28 Attorney General; Leslie McKay, 1 Senior Litigation Counsel; 2 Madeline Henley, Trial Attorney, 3 Office of Immigration Litigation, 4 United States Department of 5 Justice, Washington, DC. 6 UPON DUE CONSIDERATION of this petition for review of a 7 Board of Immigration Appeals (“BIA”) decision, it is hereby 8 ORDERED, ADJUDGED, AND DECREED that the petition for review 9 is DENIED. 10 Petitioners Raju Puncho Gurung and Sujan Gurung, 11 natives and citizens of Nepal, seek review of a May 25, 12 2018, decision of the BIA affirming a July 19, 2017, 13 decision of an Immigration Judge (“IJ”) denying Raju Puncho 14 Gurung’s application for asylum, withholding of removal, 15 and relief under the Convention Against Torture (“CAT”). 16 In re Raju Puncho Gurung, Sujan Gurung, No. A 201 125 17 997/998 (B.I.A. May 25, 2018), aff’g No. A 201 125 997/998 18 (Immig. Ct. N.Y. City July 19, 2017). We assume the 19 parties’ familiarity with the underlying facts and 20 procedural history. 21 Under the circumstances of this case, we have reviewed 22 both the IJ’s and BIA’s decisions “for the sake of 23 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 24 F.3d 524, 528 (2d Cir. 2006). The applicable standards of 2 1 review are well established. See 8 U.S.C. § 1252(b)(4)(B); 2 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009) 3 (reviewing factual findings for substantial evidence and 4 questions of law and the application of law to undisputed 5 facts de novo). 6 To establish asylum eligibility, an applicant must show 7 that he has suffered past persecution, or has a well- 8 founded fear of future persecution, on account of race, 9 religion, nationality, membership in a particular social 10 group, or political opinion. See 8 U.S.C. § 1101(a)(42). 11 If the applicant is found to have suffered past 12 persecution, he is “presumed to have a well-founded fear of 13 future persecution on the basis of the original claim.” 8 14 C.F.R. § 1208.13(b)(1). 15 Past Persecution 16 The agency did not err in concluding that Gurung failed 17 to show that he suffered past persecution at the hands of 18 the Maoists. “[P]ersecution is ‘an extreme concept that 19 does not include every sort of treatment our society 20 regards as offensive.’” Mei Fun Wong v. Holder, 633 F.3d 21 64, 72 (2d Cir. 2011) (quoting Ai Feng Yuan v. U.S. Dep’t 3 1 of Justice, 416 F.3d 192, 198 (2d Cir. 2005)). Persecution 2 may “encompass[] a variety of forms of adverse treatment, 3 including non-life-threatening violence and physical 4 abuse,” but the harm must be sufficiently severe, rising 5 above “mere harassment.” Ivanishvili v. U.S. Dep’t of 6 Justice, 433 F.3d 332, 341 (2d Cir. 2006) (internal 7 quotation marks and brackets omitted). “‘[T]he difference 8 between harassment and persecution is necessarily one of 9 degree,’ . . . [and] the degree must be assessed with 10 regard to the context in which the mistreatment occurs.” 11 Beskovic v. Gonzales, 467 F.3d 223, 226 (2d Cir. 2006) 12 (quoting Ivanishvili, 433 F.3d at 341). In evaluating a 13 past persecution claim, the agency must consider the harm 14 suffered in the aggregate. Poradisova v. Gonzales, 420 15 F.3d 70, 79–80 (2d Cir. 2005). 16 The agency did not err in finding that Gurung’s past 17 harm did not rise to the level of persecution because he 18 testified to only one incident of physical harm and 19 provided little detail regarding the attack or his 20 injuries. While Gurung testified that Maoists threw rocks 21 at his group of protestors in 2006, he escaped without 4 1 harm. The only physical harm he suffered was in December 2 2009, when he was pushed and kicked. He provided little 3 detail and appears to have sustained only a minor injury. 4 Accordingly, the agency did not err in concluding that 5 these incidents did not rise to the level of persecution. 6 See Jian Qiu Liu v. Holder, 632 F.3d 820, 822 (2d Cir. 7 2011) (finding no error in agency’s decision that harm did 8 not rise to the level of persecution where applicant, 9 “prior to his arrest and detention[,] . . . suffered only 10 minor bruising from an altercation with family planning 11 officials, which required no formal medical attention and 12 had no lasting physical effect”). 13 Moreover, the Maoists’ threats against Gurung’s parents 14 do not constitute past persecution of Gurung. See Tao 15 Jiang v. Gonzales, 500 F.3d 137, 141 (2d Cir. 2007) (“As a 16 general principle, an asylum applicant cannot claim past 17 persecution based solely on harm that was inflicted on a 18 family member on account of that family member’s political 19 opinion or other protected characteristic.”). And a letter 20 threatening Gurung that was delivered to his parent’s home 21 was not a sufficiently imminent threat so as to constitute 5 1 past persecution. See Scarlett v. Barr, 957 F.3d 316, 328 2 (2d Cir. 2020) (“[U]nfulfilled threats alone generally do 3 not rise to the level of persecution. To warrant a 4 different conclusion, an applicant must adduce objective 5 evidence that the threat was so imminent or concrete, or so 6 menacing as itself to cause actual suffering or harm.” 7 (internal citations and quotation marks omitted)). Given 8 the single, minor incident of physical harm and the one 9 threatening letter, the agency did not err in determining 10 that the cumulative harm did not rise to the level of 11 persecution. See Mei Fun Wong, 633 F.3d at 72. 12 Fear of Future Persecution 13 Absent a finding of past persecution, an applicant may 14 establish asylum eligibility based on a fear of future 15 persecution, but the applicant must show that “he 16 subjectively fears persecution and establish that his fear 17 is objectively reasonable.” Ramsameachire v. Ashcroft, 357 18 F.3d 169, 178 (2d Cir. 2004). Although a fear may be 19 objectively reasonable “even if there is only a slight, 20 though discernible, chance of persecution,” Diallo v. INS, 21 232 F.3d 279, 284 (2d Cir. 2000), a fear is not objectively 6 1 reasonable if it lacks “solid support” in the record and is 2 merely “speculative at best,” Jian Xing Huang v. U.S. INS, 3 421 F.3d 125, 129 (2d Cir. 2005). The agency did not err 4 in determining that Gurung did not have an objectively 5 reasonable fear of future persecution. 6 First, there is minimal record support for his claim 7 that Maoists remain interested in him. A 2016 letter from 8 a leader of a district development society states that 9 Maoists still want revenge against Gurung, but the letter 10 does not provide any basis for that information. 11 Additionally, Gurung did not testify that the Maoists have 12 looked for him since January 2010. And he conceded that he 13 has not been politically active in the United States. 14 Second, the fact that the Maoists have not followed 15 through on threats against Gurung’s family despite his 16 father’s alleged support for the monarchy weighs against a 17 finding that Gurung has an objectively reasonable fear of 18 future persecution. See Melgar de Torres v. Reno, 191 F.3d 19 307, 313 (2d Cir. 1999) (applicant’s claimed fear of future 20 persecution is weakened when similarly situated family 21 members continue to live unharmed in petitioner’s native 7 1 country). 2 Finally, there is limited support for Gurung’s claim 3 that some Maoists continue to persecute people who do not 4 support their political position. Gurung points to a 2010 5 U.S. State Department Report identifying a Maoist attack on 6 a district president, but this one incident from 2009 that 7 involved a district president from a different political 8 party does not establish that Gurung would be singled out 9 for his pro-monarchy political opinion. See 8 C.F.R. 10 § 1208.13(b)(2)(iii). While this 2010 report notes reports 11 of incidents of torture by Maoists, it does not identify 12 the type of victims. And although a later report from 2013 13 states that a breakaway faction of the Maoist party 14 committed acts of violence, it is insufficient to show that 15 Gurung would be singled out for persecution because it does 16 not detail the frequency of the violence or reflect that 17 Maoists are targeting their political opponents. Several 18 additional sources address issues related to holding 19 Maoists accountable for violence during the civil war but 20 do not discuss ongoing Maoist violence. Accordingly, 21 Gurung’s country conditions evidence does not support his 8 1 claim that Maoists would single him out for persecution. 2 See Jian Xing Huang, 421 F.3d at 129. 3 In sum, the agency did not err in determining that 4 Gurung failed to state a well-founded fear of future 5 persecution because he did not establish that Maoists 6 continue to be interested in him, his family has remained 7 unharmed in Nepal, and the country conditions evidence does 8 not reflect that similarly-situated individuals are singled 9 out for harm. See id. Gurung’s failure to meet his burden 10 for asylum is also dispositive of withholding of removal 11 and CAT protection, which carry a higher burden. See Lecaj 12 v. Holder, 616 F.3d 111, 119 (2d Cir. 2010). 13 For the foregoing reasons, the petition for review is 14 DENIED. All pending motions and applications are DENIED 15 and stays VACATED. 16 FOR THE COURT: 17 Catherine O’Hagan Wolfe, 18 Clerk of Court 19 9