Filed: Dec. 01, 2011
Latest Update: Feb. 22, 2020
Summary: 10-5150-ag Sherpa v. Holder BIA Rohan, IJ A093 412 536 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
Summary: 10-5150-ag Sherpa v. Holder BIA Rohan, IJ A093 412 536 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 N..
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10-5150-ag
Sherpa v. Holder
BIA
Rohan, IJ
A093 412 536
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 1st day of December, two thousand eleven.
5
6 PRESENT:
7 JON O. NEWMAN,
8 ROBERT A. KATZMANN,
9 DENNY CHIN,
10 Circuit Judges.
11 _______________________________________
12
13 FUDOMA SHERPA,
14 Petitioner,
15
16 v. 10-5150-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Julie Mullaney, Mount Kisco, NY.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; David V. Bernal, Assistant
27 Director; Lindsay E. Williams,
28 Attorney, Office of Immigration
29 Litigation, United States Department
30 of Justice, 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 DISMISSED, in part, and DENIED, in part.
5 Fudoma Sherpa, a native and citizen of Nepal, seeks
6 review of a November 29, 2010, decision of the BIA affirming
7 the May 3, 2010, decision of Immigration Judge (“IJ”)
8 Patricia A. Rohan, which denied her application for asylum,
9 withholding of removal, and relief under the Convention
10 Against Torture (“CAT”), and denying her motion to remand.
11 In re Fudoma Sherpa, No. A093 412 536 (B.I.A. Nov. 29,
12 2010), aff’g No. A093 412 536 (Immig. Ct. N.Y. City May 3,
13 2010). We assume the parties’ familiarity with the
14 underlying facts and procedural history in this case.
15 Under the circumstances of this case, we review the
16 IJ’s decision as supplemented by the BIA. See Yan Chen v.
17 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
18 standards of review are well-established. See
19 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder,
562 F.3d
20 510, 513 (2d Cir. 2009); Li Yong Cao v. U.S. Dep’t of
21 Justice,
421 F.3d 149, 157 (2d Cir. 2005).
22 We do not have jurisdiction to review the agency’s
23 finding that Sherpa’s asylum application was untimely under
2
1 8 U.S.C. § 1158(a)(2)(B), or its finding of neither changed
2 nor extraordinary circumstances excusing the untimeliness
3 under 8 U.S.C. § 1158(a)(2)(D). See 8 U.S.C. § 1158(a)(3).
4 Although we retain jurisdiction to review constitutional
5 claims and “questions of law,” see 8 U.S.C. § 1252(a)(2)(D),
6 Sherpa’s challenge to the IJ’s finding that she did not
7 establish extraordinary circumstances is simply a challenge
8 to the agency’s fact-finding, over which we do not have
9 jurisdiction, see 8 U.S.C. § 1158(a); Xiao Ji Chen v. U.S.
10 Dep’t of Justice, 471 F.3d 315, 323-32 (2d Cir. 2006).
11 Accordingly, we dismiss the petition with respect to asylum
12 and address only Sherpa’s challenge to the denial of
13 withholding of removal, CAT relief, and her motion to
14 remand.
15 The BIA has defined persecution as a “threat to the
16 life or freedom of, or the infliction of suffering or harm
17 upon, those who differ in a way regarded as offensive.”
18 Matter of Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985),
19 overruled, in part, on other grounds, by INS v.
20 Cardoza-Fonseca,
480 U.S. 421 (1987); accord Ivanishvili v.
21 U.S. Dep’t of Justice,
433 F.3d 332, 341-43 (2d Cir. 2006).
22 The harm must be sufficiently severe, rising above “mere
3
1 harassment.” Ivanishvili, 433 F.3d at 341. The IJ
2 addressed the harassment and intimidation described by
3 Sherpa, and reasonably found that it was insufficiently
4 severe to constitute persecution. See
id. As the agency
5 noted, the entire extent of the harm Sherpa claimed was that
6 the Maoists sent her and her husband letters demanding money
7 and threatening to harm them if they did not donate money or
8 join the Maoists. As a result, Sherpa and her husband left
9 their village and moved to Kathmandu. The agency did not
10 err in finding that these incidents, considered
11 cumulatively, did not amount to persecution. See id.; Gui
12 Ci Pan v. U.S. Att’y Gen.,
449 F.3d 408, 412 (2d Cir. 2006)
13 (noting that courts have “rejected [persecution] claims
14 involving ‘unfulfilled’ threats”).
15 Sherpa also argues that, independent from her past
16 persecution, she fears future persecution if she returns to
17 Nepal, because she was displaced from her home and the
18 Maoists continue to look for her. However, as the agency
19 noted, Sherpa’s husband and children remain in Kathmandu
20 unharmed. Because Sherpa’s well-founded fear was based
21 primarily on the political activity in which her husband was
22 engaged, it was not improper for the agency to consider her
4
1 fear of persecution diminished because her husband, who was
2 similarly-situated, remained in Nepal unharmed. See Melgar
3 de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999).
4 Because Sherpa was unable to show either past persecution or
5 a clear probability of future persecution in Nepal, the
6 agency did not err in denying her application for
7 withholding of removal, and her application for CAT relief,
8 as that claim was based on the same factual predicate. See
9 8 C.F.R. § 1208.16(b)(1); Ramsameachire v. Ashcroft, 357
10 F.3d 169, 178 (2d Cir. 2004); Paul v. Gonzales,
444 F.3d
11 148, 155-56 (2d Cir. 2006).
12 Nor did the agency abuse its discretion by denying
13 Sherpa’s motion to remand. See Sanusi v. Gonzales,
445 F.3d
14 193, 201 (2d Cir. 2006). Motions to remand are subject to
15 the same substantive requirements as motions to reopen,
16 including the requirement that the “evidence sought to be
17 offered is material and was not available and could not have
18 been discovered or presented at the former hearing.” See 8
19 C.F.R. § 1003.2(c); Matter of Coelho, 20 I. & N. Dec. 464
20 (BIA 1992). In support of her motion, Sherpa presented a
21 clinical evaluation by a licensed clinical social worker
22 indicating that she suffered from post traumatic stress
23 disorder, and stated that she was presenting the clinical
5
1 evaluation to counter the IJ’s adverse credibility finding.
2 Sherpa did not address why she could not have obtained the
3 evaluation for her merits hearing, and, because the IJ
4 explicitly found Sherpa to be credible, the evaluation was
5 not material. See 8 C.F.R. § 1003.2(c). Accordingly, the
6 BIA did not abuse its discretion in denying Sherpa’s motion
7 to remand.
8 For the foregoing reasons, the petition for review is
9 DISMISSED, in part, and DENIED, in part. As we have
10 completed our review, any stay of removal that the Court
11 previously granted in this petition is VACATED, and any
12 pending motion for a stay of removal in this petition is
13 DENIED as moot. Any pending request for oral argument in
14 this petition is DENIED in accordance with Federal Rule of
15 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
16 34.1(b).
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
19
6
