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