19-2708
Uprety v. Garland
BIA
Douchy, IJ
A200 179 165
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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 4th day of January, two thousand twenty-two.
5
6 PRESENT:
7 DENNIS JACOBS,
8 RAYMOND J. LOHIER, JR.,
9 JOSEPH F. BIANCO,
10 Circuit Judges.
11 _____________________________________
12
13 ACHYUT CHANDRA UPRETY,
14 Petitioner,
15
16 v. 19-2708
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Ramesh K. Shrestha, New York, NY.
24
25 FOR RESPONDENT: Joseph H. Hunt, Assistant
26 Attorney General; Cindy S.
27 Ferrier, Assistant Director;
28 Genevieve M. Kelly, Attorney,
29 Office of Immigration Litigation,
30 United States Department of
31 Justice, Washington, DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Achyut Chandra Uprety, a native and citizen
6 of Nepal, seeks review of an August 8, 2019 decision of the
7 BIA affirming a decision of an Immigration Judge (“IJ”) that
8 denied his application for asylum, withholding of removal,
9 and relief under the Convention Against Torture (“CAT”), and
10 declining to remand for consideration of new evidence. In
11 re Achyut Chandra Uprety, No. A200 179 165 (B.I.A. Aug. 8,
12 2019), aff’g No. A200 179 165 (Immig. Ct. N.Y. City Dec. 4,
13 2017). We assume the parties’ familiarity with the
14 underlying facts and procedural history.
15 We have reviewed the decision of the IJ as supplemented
16 by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
17 Cir. 2005). The applicable standards of review are well
18 established. See Lecaj v. Holder, 616 F.3d 111, 114 (2d Cir.
19 2010) (reviewing factual findings for substantial evidence
20 and questions of law de novo); Li Yong Cao v. U.S. Dep’t of
2
1 Justice, 421 F.3d 149, 157 (2d Cir. 2005) (reviewing denial
2 of motion to remand for abuse of discretion).
3 1. Asylum, Withholding of Removal, and CAT Relief
4 To establish eligibility for asylum, Uprety was required
5 to show that he suffered past persecution, or that he had a
6 well-founded fear of future persecution, on account of his
7 race, religion, nationality, membership in a particular
8 social group, or political opinion. 8 U.S.C. §§ 1101(a)(42),
9 1158(b)(1)(A), (B)(i). When a petitioner establishes past
10 persecution, there is a presumption of a well-founded fear of
11 future persecution on the basis of the petitioner’s original
12 claim. 8 C.F.R. § 1208.13(b)(1). This presumption may be
13 rebutted if it “is found by a preponderance of the evidence,”
14 that “[t]here has been a fundamental change in circumstances
15 such that the applicant no longer has a well-founded fear of
16 persecution.” Id. § 1208.13(b)(1)(i)(A); see also Lecaj, 616
17 F.3d at 115. The agency reasonably concluded that, even
18 though Maoists had persecuted Uprety in 2007 on account of
19 his support for the Nepali Congress Party, any presumption of
20 a well-founded fear of future persecution had been rebutted
21 by changed conditions in Nepal.
3
1 The agency considered the State Department’s Human Rights
2 Reports on Nepal, news articles, and Uprety’s personalized
3 evidence and reasonably found as follows: In 2006, the 10-
4 year armed conflict between the Maoist insurgency and the
5 government of Nepal ended when Maoists joined the government.
6 The 2013 elections were fair and free of irregularities. By
7 2015, the government had promulgated a constitution, which
8 caused political unrest among an ethnic minority group in one
9 region of Nepal. A comparison of the State Department’s
10 Human Rights Reports for the decade before Uprety’s 2017
11 hearing shows the extent to which conditions had improved.
12 Maoists committed acts of violence and extortion throughout
13 the year in 2007, while the 2016 report did not report similar
14 acts. Although sporadic acts of violence occurred around
15 elections and the promulgation of the constitution, those
16 acts did not involve Maoists targeting Nepali Congress Party
17 supporters like Uprety. Therefore, the evidence supports the
18 agency’s finding that there has been a fundamental change in
19 circumstances since the Maoists assaulted Uprety in 2007.
20 See Lecaj, 616 F.3d at 115–16. Given this fundamental
21 change, Uprety no longer had a well-founded fear of future
4
1 persecution, see 8 C.F.R. § 1208.13(b)(1)(i)(A), and the
2 agency did not err in denying asylum, withholding of removal,
3 and CAT relief because all three claims were based on the
4 same factual predicate, see Lecaj, 616 F.3d at 119–20.
5 2. Motion to Remand
6 Nor did the BIA abuse its discretion in denying Uprety’s
7 motion to remand on the ground that his new evidence would
8 not change the outcome of his case. See Li Yong Cao, 421
9 F.3d at 156. Similar to the evidence before the IJ, Uprety’s
10 evidence on appeal showed sporadic violence surrounding an
11 election and did not show that Maoists targeted similarly
12 situated Nepali Congress Party supporters.
13 For the foregoing reasons, the petition for review is
14 DENIED. All pending motions and applications are DENIED and
15 stays VACATED.
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
18
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