16-284
Thapachhetri v. Sessions
BIA
Straus, IJ
A206 233 429
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 16th day of May, two thousand seventeen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 JOSÉ A. CABRANES,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 RUDRA NARSHING THAPACHHETRI, AKA
14 RUDRA NARSHING THAPACHAETRI,
15 Petitioner,
16
17 v. 16-284
18 NAC
19 JEFFERSON B. SESSIONS III, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Khaghendra Gharti-Chhetry, Chhetry
25 & Associates, P.C., New York, NY.
26
27 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
28 Assistant Attorney General; Kiley
29 Kane, Senior Litigation Counsel;
30 Sergio Sarkany, Trial Attorney,
31 Office of Immigration Litigation,
32 United States Department of Justice,
33 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 is
4 DENIED.
5 Petitioner Rudra Narshing Thapachhetri, a native and
6 citizen of Nepal, seeks review of a December 31, 2015, decision
7 of the BIA, affirming a June 16, 2014, decision of an Immigration
8 Judge (“IJ”) denying Thapachhetri’s application for asylum,
9 withholding of removal, and relief under the Convention Against
10 Torture (“CAT”). In re Rudra Narshing Thapachhetri, No. A206
11 233 429 (B.I.A. Dec. 31, 2015), aff’g No. A206 233 429 (Immig.
12 Ct. Hartford June 16, 2014). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 Under the circumstances of this case, we have reviewed the
16 decisions of both the BIA and the IJ “for the sake of
17 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
18 524, 528 (2d Cir. 2006). The applicable standards of review
19 are well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin
20 Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
21 I. Change in Conditions
22 It is undisputed that Thapachhetri established past
23 persecution in Nepal on account of his membership in the Nepali
2
1 Congress Party (“NCP”). Accordingly, he benefits from a
2 presumption of a “well-founded fear of [future] persecution on
3 the basis of the original claim.” 8 C.F.R. § 1208.13(b)(1).
4 However, the Government may rebut this presumption if, among
5 other things, “[t]here has been a fundamental change in
6 circumstances such that the applicant no longer has a
7 well-founded fear of persecution in [his] country of
8 nationality.” Id. § 1208.13(b)(1)(i)(A). The Government
9 “bear[s] the burden of establishing by a preponderance of the
10 evidence” the fundamental change in circumstances. Id.
11 § 1208.13(b)(1)(ii). “To determine whether the government has
12 rebutted the presumption entails ‘an individualized analysis
13 of whether the changes in conditions in [the relevant country]
14 were so fundamental that they are sufficient to rebut the
15 presumption that [an applicant’s] fear of persecution is well
16 founded.’” Lecaj v. Holder, 616 F.3d 111, 115 (2d Cir. 2010)
17 (quoting Passi v. Mukasey, 535 F.3d 98, 103-04 (2d Cir. 2008)).
18 We review the agency’s factual findings regarding changed
19 country conditions for substantial evidence. Id. at 114-115;
20 8 U.S.C. § 1252(b)(4)(B).
21 We conclude that the agency’s finding that the Government
22 demonstrated fundamentally changed country conditions in Nepal
23 rests on substantial evidence. In November 2013, following an
3
1 election which, according to a State Department report,
2 “[d]omestic and international observers characterized . . . as
3 credible and well-conducted” and “essentially free and fair,”
4 the NCP gained control of the majority of seats in parliament.
5 While there are some local articles in the record reporting that
6 members of the Maoist party “committed acts of political
7 violence and intimidation” leading up to the November 2013
8 election, the record evidence does not report post-election
9 violence by Maoists against NCP members. Cf. Lecaj, 616 F.3d
10 at 117 (ruling that State Department report “reflect[ing]
11 ongoing police abuses” was insufficient to establish
12 well-founded fear because the report “d[id] not link those
13 abuses to [petitioner’s] ethnicity, religion, [or] political
14 opinion”). In fact, as the agency observed, the evidence
15 suggests that the tables have turned and that the NCP has been
16 threatening Maoist party members. The agency’s finding is
17 supported by the record, specifically a March 2014 joint press
18 release from two Maoist party factions complaining of the NCP’s
19 arrest and detention of several Maoist party members.
20 Thapachhetri insists that, notwithstanding the NCP’s
21 November 2013 victory, there remains a pattern or practice of
22 persecution of NCP members, as evidenced by the history of
23 Maoist attacks. We have observed that “[t]he removal of a
4
1 persecuting despot might vitiate an asylum applicant’s
2 well-founded fear of persecution, but in many cases lingering
3 elements of a despot’s regime may still pose a threat to an
4 applicant’s life and safety.” Burger v. Gonzales, 498 F.3d
5 131, 135 (2d Cir. 2007). But there is little record evidence
6 about violence against the NCP generally, let alone evidence
7 sufficient to establish a pattern or practice of persecution
8 of NCP members by Maoists. Accordingly, the agency’s
9 conclusion that the Government rebutted the presumption of
10 future persecution is supported by substantial evidence.
11 Lecaj, 616 F.3d at 115; 8 U.S.C. § 1252(b)(4)(B).
12 Thapachhetri also argues that the agency erred in not
13 addressing his individualized fear of persecution. Absent a
14 presumption of future persecution, “[a]n asylum applicant can
15 show a well-founded fear of future persecution in two ways:
16 (1) by demonstrating that he or she ‘would be singled out
17 individually for persecution’ if returned, or (2) by proving
18 the existence of a ‘pattern or practice in [the] . . . country
19 of nationality . . . of persecution of a group of persons
20 similarly situated to the applicant’ and establishing his or
21 her ‘own inclusion in, and identification with, such group.’”
22 Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013) (quoting 8
23 C.F.R. § 1208.13(b)(2)(iii)).
5
1 Thapachhetri did not demonstrate that he would be singled
2 out individually for persecution in Nepal given the change in
3 circumstances or that there is a pattern or practice of
4 persecution of NCP members. His fear is based on his assertion
5 that “there is a network of Maoists all over Nepal,” as well
6 as a threatening phone call his wife received after he left
7 Nepal. However, Thapachhetri testified that his wife and
8 children reside in Nepal unharmed. See Jian Xing Huang v. U.S.
9 INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In the absence of solid
10 support in the record . . . , [an applicant’s] fear is
11 speculative at best.”); Melgar de Torres v. Reno, 191 F.3d 307,
12 313 (2d Cir. 1999) (finding alleged future fear diminished when
13 similarly situated individuals are able to live unharmed in
14 asylum applicant’s native country).
15 II. Humanitarian Asylum
16 Thapachhetri argues that he is eligible for humanitarian
17 asylum because he “is mentally scarred” due to the “brutality
18 of [his] past harm.” To merit a grant of humanitarian asylum,
19 an applicant “must establish both ‘the severe harm and the
20 long-lasting effects of that harm.’” Jalloh v. Gonzales, 498
21 F.3d 148, 151-52 (2d Cir. 2007) (quoting In re N-M-A-, 22 I.
22 & N. Dec. 312, 326 (B.I.A. 1998)); 8 C.F.R.
23 § 1208.13(b)(1)(iii)(A).
6
1 The agency’s conclusion that the severity of
2 Thapachhetri’s past harm was insufficient for a grant of
3 humanitarian asylum likewise rests on substantial evidence.
4 In 2012, he was treated at the hospital for four hours for
5 unidentified injuries. And in 2013, he suffered injuries to
6 his shoulder, chest, and arms, for which he was treated with
7 a pain killer, IV fluid, and bandages, and then discharged
8 within three hours because his “condition improved.” He did
9 not testify to any long-lasting effects stemming from these
10 incidents. Because Thapachhetri “provided no evidence of
11 long-lasting physical or mental effects of his persecution that
12 would support his insistence that he not be returned to” Nepal,
13 the agency reasonably denied humanitarian asylum. Jalloh, 498
14 F.3d at 152.
15 III. CAT Relief
16 Finally, Thapachhetri argues that he is eligible for CAT
17 relief because the background evidence establish “that the
18 Maoists . . . still engage in violence and extortion” with
19 governmental acquiescence, as evidenced by police corruption.
20 Although the agency independently addressed CAT and the parties
21 do the same, the only basis for Thapachhetri’s fear was the same
22 as for asylum and withholding of removal. Accordingly, the
23 agency’s conclusion that that he did not have a well-founded
7
1 fear of future harm, is dispositive. See Lecaj, 616 F.3d at
2 119-20 (holding that failure to meet burden for asylum precludes
3 showing needed to meet higher burden for withholding of removal
4 and CAT relief).
5 For the foregoing reasons, the petition for review is
6 DENIED.
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
8