Poudel v. Garland

16-948 Poudel v. Garland BIA Verrillo, IJ A205 811 487 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 15th day of March, two thousand twenty-two. 5 6 PRESENT: 7 JON O. NEWMAN, 8 DENNIS JACOBS, 9 ROSEMARY S. POOLER, 10 Circuit Judges. 11 _____________________________________ 12 13 KISHOR KUMAR POUDEL, AKA ANIL 14 POUDEL, AKA ANIL PAUDEL, 15 Petitioner, 16 17 v. 16-948 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Dilli Raj Bhatta, Esq., Bhatta 25 Law & Associates, New York, NY. 26 27 FOR RESPONDENT: Ethan P. Davis, Acting Assistant 28 Attorney General; Shelley R. Goad, 29 Assistant Director; Kristin 30 Moresi, Trial Attorney, Office of 31 Immigration Litigation, United 1 States Department of Justice, 2 Washington, DC. 3 4 UPON DUE CONSIDERATION of this petition for review of a 5 Board of Immigration Appeals (“BIA”) decision, it is hereby 6 ORDERED, ADJUDGED, AND DECREED that the petition for review 7 is DENIED. 8 Petitioner Kishor Kumar Poudel, a native and citizen of 9 Nepal, seeks review of a March 3, 3016, decision of the BIA 10 affirming an August 14, 2014, decision of an Immigration Judge 11 (“IJ”) denying Poudel’s application for asylum. In re Kishor 12 Kumar Poudel, No. A205 811 487 (B.I.A. Mar. 3, 2016), aff’g 13 No. A205 811 487 (Immig. Ct. Hartford Aug. 14, 2014). We 14 assume the parties’ familiarity with the underlying facts and 15 procedural history. 16 We have reviewed both the BIA’s and IJ’s decisions. 17 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d 18 Cir. 2006). The standards of review are well established. 19 See 8 U.S.C. § 1252(b)(4)(B); Lecaj v. Holder, 616 F.3d 111, 20 114 (2d Cir. 2010). An applicant for asylum “must establish 21 that race, religion, nationality, membership in a particular 22 social group, or political opinion was or will be at least 23 one central reason for persecuting the applicant.” 8 U.S.C. 2 1 § 1158(b)(1)(B)(i). “[A]sylum may be granted where there is 2 more than one motive for mistreatment, as long as at least 3 one central reason for the mistreatment is on account of a 4 protected ground.” Acharya v. Holder, 761 F.3d 289, 297 (2d 5 Cir. 2014) (internal quotation marks and citations omitted). 6 The agency did not err in concluding that Poudel failed 7 to establish that his political opinion was a central reason 8 that Maoists targeted him. To demonstrate that persecution 9 or a well-founded fear of persecution is on account of an 10 applicant’s political opinion, the applicant must “show, 11 through direct or circumstantial evidence, that the 12 persecutor’s motive to persecute arises from the applicant’s 13 political belief,” rather than from the persecutor’s own 14 opinion. Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 (2d 15 Cir. 2005) (emphasis added). 16 Poudel repeatedly testified that Maoists targeted him 17 because they wanted to recruit him to increase their ranks 18 given his extensive network and because he refused to give 19 them money they had demanded. He mentioned his own political 20 affiliation only once when discussing why Maoists had 21 targeted his brother; but, even then, he did not state that 3 1 Maoists were motivated by his political opinion rather than 2 in recruiting members from another party and he again stated 3 that they were motivated to obtain money. “[T]he mere 4 existence of a generalized ‘political’ motive 5 underlying . . . recruitment is inadequate to establish (and, 6 indeed, goes far to refute) the proposition that [an 7 applicant] fears persecution on account of political opinion” 8 INS v. Elias-Zacarias, 502 U.S. 478, 482 (1992) (emphasis in 9 original), and “harm motivated purely by wealth is not 10 persecution,” Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73–74 (2d 11 Cir. 2007). Accordingly, the agency did not err in finding 12 that Poudel failed to establish a nexus to a protected ground 13 as required for asylum. See 8 U.S.C. § 1158(b)(1)(B)(i); 14 Yueqing Zhang, 426 F.3d at 545. 15 Because the nexus finding was dispositive of asylum, we 16 do not reach the agency’s alternative bases for denying 17 asylum. See 8 U.S.C. § 1158(b)(1)(B)(i); INS v. Bagamasbad, 18 429 U.S. 24, 25 (1976) (“As a general rule courts and agencies 19 are not required to make findings on issues the decision of 20 which is unnecessary to the results they reach.”). We lack 21 jurisdiction to review the IJ’s denial of withholding of 4 1 removal and CAT protection because Poudel did not raise those 2 forms of relief on appeal to the BIA. See Karaj v. Gonzales, 3 462 F.3d 113, 119 (2d Cir. 2006). 4 Finally, we conclude that the BIA did not abuse its 5 discretion in declining to consider the additional evidence 6 Poudel submitted for the first time on appeal. The BIA is an 7 appellate body that may not consider such evidence outside 8 the context of a motion to remand. See 8 C.F.R. 9 § 1003.1(d)(3)(iv) (2021); Matter of Fedorenko, 19 I. & N. 10 Dec. 57, 74 (B.I.A. 1984) (recognizing that, as an appellate 11 body, the BIA may decline to review evidence proffered for 12 the first time on appeal); see also De La Rosa v. Holder, 598 13 F.3d 103, 108 n.2 (2d Cir. 2010) (noting that it is improper 14 for the BIA to consider new evidence on appeal). 15 For the foregoing reasons, the petition for review is 16 DENIED. 17 FOR THE COURT: 18 Catherine O’Hagan Wolfe, 19 Clerk of Court 5