Gurung v. Holder

11-1026-ag Gurung v. Holder BIA Nelson, IJ A099 769 359 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 6th day of February, two thousand twelve. 5 6 PRESENT: 7 ROGER J. MINER, 8 ROBERT A. KATZMANN, 9 BARRINGTON D. PARKER, 10 Circuit Judges. 11 12 _______________________________________ 13 14 BHAWAR JUNG GURUNG, 15 Petitioner, 16 17 v. 11-1026-ag 18 NAC 19 ERIC H. HOLDER, JR., UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _______________________________________ 23 24 FOR PETITIONER: Khagendra Gharti-Chhetry, New York, 25 NY. 26 27 FOR RESPONDENT: Tony West, Assistant Attorney 28 General; Emily Anne Radford, 29 Assistant Director; Sarah L. Vuong, 30 Trial Attorney, Office of 31 Immigration Litigation, United 32 States Department of Justice, 33 Washington, D.C. 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 Bhawar Jung Gurung, a native and citizen of 6 Nepal, seeks review of a February 15, 2011, order of the BIA 7 affirming the November 4, 2009, decision of Immigration 8 Judge (“IJ”) Barbara A. Nelson, denying his application for 9 asylum, withholding of removal, and relief under the 10 Convention Against Torture (“CAT”). In re Bhawar Jung 11 Gurung, No. A099 769 359 (B.I.A. Feb. 15, 2011), aff’g No. 12 A099 769 359 (Immigr Ct. N.Y. City Nov. 4, 2009). We assume 13 the parties’ familiarity with the underlying facts and 14 procedural history of this case. 15 Under the circumstances of this case, we have reviewed 16 the IJ’s decision as supplemented by the BIA. See Yan Chen 17 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The 18 applicable standards of review are well-established. 19 See 8 U.S.C. § 1252(b)(4)(B) (2006); Yanqin Weng v. Holder, 20 562 F.3d 510, 513 (2d Cir. 2009). 21 Gurung argues that he suffered past persecution at the 22 hands of Maoists in Nepal who threatened to kill him when he 23 refused their demands for money. However, as Gurung 2 1 testified, the Maoists did not physically harm him or 2 financially harm his tourist businesses, which independently 3 suffered due to a decline in tourism. The agency therefore 4 reasonably found that the Maoists’ unfulfilled threats did 5 not constitute persecution. See Ivanishvili v. U.S. Dep’t 6 of Justice, 433 F.3d 332, 342 (2d Cir. 2006) (holding that 7 harm must be sufficiently severe, rising above mere 8 harassment, to constitute persecution); Gui Ci Pan v. U.S. 9 Attorney Gen., 449 F.3d 408, 412 (2d Cir. 2006) (per curiam) 10 (noting that courts have “rejected [persecution] claims 11 involving ‘unfulfilled’ threats’”). 12 The agency also reasonably found that Gurung failed to 13 establish that the Maoists targeted him based on his 14 political opinion or any other protected ground. Gurung 15 asserts that the Maoists targeted him because he opposed 16 them politically, had close ties to the royal family, and 17 supported the National Democratic Party. Yet he testified 18 only that the Maoists began demanding money once they 19 confirmed that he owned a business. He also testified that 20 he did not meet the Maoists’ demands because he did not want 21 to give them any money and not because he disagreed with 22 their political goals or beliefs. Thus, the agency 3 1 reasonably found that the Maoists targeted him as a business 2 owner and not because of his political opinion. See Chun 3 Gao, 424 F.3d at 129. 4 Gurung also asserts that he established a well-founded 5 fear of persecution by the Maoists based on his political 6 opposition. To the contrary, as discussed above, the agency 7 reasonably found that the Maoists did not target Gurung 8 based on his political opinion but based on his potential 9 income as a business owner. Furthermore, the background 10 materials that Gurung submitted indicate that the Maoists 11 who, according to the 2008 State Department Human Rights 12 Report, continued to foster violence in Nepal through the 13 “arbitrary and unlawful use of lethal force” did not target 14 any particular group of people. 15 The agency also reasonably found that Gurung failed to 16 corroborate his claim sufficiently. Although the IJ 17 declined to admit into evidence several of the exhibits 18 Gurung submitted as untimely, she addressed them and did not 19 err by affording little weight to the letters from his 20 purported political party and the Nepalese Communist Party 21 because they were not authenticated and to the letter from 22 his wife because it was not based on personal knowledge. 4 1 See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 332 2 (2d Cir. 2006). Moreover, as the IJ reasonably found, 3 Gurung should have submitted a letter from his nephew who 4 witnessed, in part, the Maoists’ threats. See Diallo v. 5 INS, 232 F.3d 279, 285 (2d Cir. 2000). Given the lack of 6 evidence demonstrating the possibility that Gurung would be 7 targeted by Maoists, the agency reasonably found that Gurung 8 failed to establish a well-founded fear of persecution. See 9 Melgar de Torres v. Reno, 191 F.3d 307, 314 n.3 (2d Cir. 10 1999) (finding that general civil strife does not establish 11 a well-founded fear of persecution). 12 Because Gurung was unable to show the objective 13 likelihood of persecution needed to make out an asylum 14 claim, he necessarily was unable to meet the higher standard 15 required to succeed on a claim for withholding of removal. 16 See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); 17 Gomez v. INS, 947 F.2d 660, 665 (2d Cir. 1991). 18 Furthermore, the agency did not err in denying CAT relief 19 because Gurung’s CAT claim was based on the same factual 20 predicate as his asylum and withholding of removal claims. 21 See Paul, 444 F.3d at 155-56. 22 For the foregoing reasons, the petition for review is 23 DENIED. As we have completed our review, any stay of 5 1 removal that the Court previously granted in this petition 2 is VACATED, and any pending motion for a stay of removal in 3 this petition is DENIED as moot. Any pending request for 4 oral argument in this petition is DENIED in accordance with 5 Federal Rule of Appellate Procedure 34(a)(2) and Second 6 Circuit Local Rule 34.1(b). 7 FOR THE COURT: 8 Catherine O’Hagan Wolfe, Clerk 9 10 6