11-2134-ag
    Pun v. Holder
                                                                                      BIA
                                                                                Abrams, IJ
                                                                              A099 536 260
                         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.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of New
    York, on the 9th day of August, two thousand twelve.

    PRESENT:
             JOSÉ A. CABRANES,
             GERARD E. LYNCH,
             SUSAN L. CARNEY,
                  Circuit Judges.
    _____________________________________

    GUKARNA PUN,
             Petitioner,

                    v.                                        11-2134-ag
                                                              NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                Shifa Soressa, New York, New York.

    FOR RESPONDENT:                Tony West, Assistant Attorney General;
                                   William C. Peachey, Jr., Assistant
                                   Director; Ada E. Bosque, Trial
                                   Attorney, Office of Immigration
                                   Litigation, United States Department of
                                   Justice, Washington, D.C.
    UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review is

DENIED.

    Petitioner Gukarna Pun, a native and citizen of Nepal,

seeks review of an April 26, 2011, decision of the BIA

affirming the April 17, 2009, decision of Immigration Judge

(“IJ”) Steven R. Abrams denying his application for asylum,

withholding of removal and relief under the Convention Against

Torture (“CAT”).   In re Gukarna Pun, No. A099 536 260 (B.I.A.

Apr. 26, 2011), aff’g No. A099 536 260 (Immig. Ct. N.Y. City

April 17, 2009).   We assume the parties’ familiarity with the

underlying facts and procedural history of the case.

    Because the BIA adopted, affirmed, and extended the IJ’s

decision, we review the two decisions in tandem.   See Yanqin

Weng v. Holder, 

, 513 (2d Cir. 2009). We review

“factual findings under the substantial evidence standard,”

Aliyev v. Mukasey, 

, 115 (2d Cir. 2008), and

“defer to the BIA’s reasonable interpretations of the

immigration laws,” Li Yong Cao v. U.S. Dep’t of Justice, 

, 156-57 (2d Cir. 2005).   See also 8 U.S.C.

§ 1252(b)(4)(B).


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I. Asylum and Withholding of Removal

    The BIA has defined persecution as a “threat to the life

or freedom of, or the infliction of suffering or harm upon,

those who differ in a way regarded as offensive.”   Matter of

Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985), overruled, in

part, on other grounds, INS v. Cardoza-Fonseca, 

(1987); accord Ivanishvili v. U.S. Dep’t of Justice, 

, 342 (2d Cir. 2006).   The harm or suffering must be

inflicted in order to punish the individual for possessing a

belief or characteristic the persecutor seeks to overcome, and

inflicted either by the government of a country or by persons

or an organization that the government is unable or unwilling

to control.   Acosta, 19 I. & N. Dec. at 222; see also Pavlova

v. INS, 

, 85 (2d Cir. 2006).   In addition, the harm

must be sufficiently severe, rising above “mere harassment.”

.

    The agency reasonably concluded that the mistreatment

experienced by Pun did not rise to the level of persecution.

Pun argues that the mistreatment experienced by his brother

and other family members establishes that he experienced

persecution in Nepal.   But “an applicant must rely upon harm

the applicant has suffered individually”; mistreatment


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experienced by others, even close family members, is not

sufficient to constitute harassment.   Tao Jiang v. Gonzales,

, 141 (2d Cir. 2007).

    Pun also argues that the threats made by the Maoists

constitute past persecution.   Unfulfilled threats, however,

are also insufficient to demonstrate past persecution.     See

Gui Ci Pan v. U.S. Att’y Gen., 

, 412 (2d Cir.

2006).   Pun further argues that his family’s displacement by

the Maoists constitutes past persecution.   The agency,

however, reasonably concluded that this forced relocation did

not constitute persecution, because Pun failed to demonstrate

that “severe economic disadvantage” resulted from this

relocation.   See Matter of T-Z-, 24 I. & N. Dec. 163, 173 (BIA

2007).

    The agency also reasonably concluded that Pun failed to

demonstrate a well-founded fear of future persecution.

Although Pun testified that he feared that he would be

targeted by the Maoists on account of his political opinions,

he offered no evidence that the Maoists were aware of his

opinions and, in fact, testified that he had never expressed

his opinions “face to face” with the Maoists.   None of the

letters he offered in support of his application indicate that


                               4
the Maoist forces are still looking for Pun.    Although Pun

argues that he has a well-founded fear of persecution based on

the general violence engaged in by the Maoists in Nepal, the

fact that the Maoists may act out of a “generalized political

motive,” rather than any actual or imputed political opinion

held by Pun is not sufficient to constitute persecution.       See

INS v. Elias-Zacarias, 

, 482 (1992) (internal

quotation marks omitted).

    Pun further argues that the mistreatment experienced by

his brother in Nepal is sufficient evidence to establish that

he will be persecuted if he returns to Nepal.    However, Pun

offers no evidence that he is likely to experience the same

problems encountered by his brother, particularly in light of

the fact that, unlike Pun, his brother was abducted by the

Maoist forces and escaped their forced military training.       See

8 C.F.R. § 1208.13(b)(2)(iii) (providing that to demonstrate a

well-founded fear of persecution, an applicant must show

either that he “would be singled out individually for

persecution” or that there is a “pattern or practice . . . of

persecution of a group of persons similarly situated to the

applicant”).   Therefore, as the agency reasonably found that

Pun failed to demonstrate either past persecution or a well-

founded fear of persecution, it did not err in denying his

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claims for asylum and for withholding of removal, which were

based on the same factual predicate.      See 8 C.F.R.

§ 1208.13(b)(2)(iii); 8 C.F.R. § 1208.16(b)(2)(i); see also

Paul v. Gonzales, 

, 156 (2d Cir. 2006).

II. CAT Relief

    Pun argues that the agency improperly determined that he

waived his CAT claim by failing to challenge it in his brief

to the BIA, and that he is eligible for CAT relief because the

background materials on Nepal reflect rising violence and

upheaval.     Pun’s brief in the BIA, however, contained no

argument regarding the IJ’s denial of his request for CAT

relief.     Accordingly, he failed to raise this avenue of relief

with the BIA.     See Steevenez v. Gonzales, 

, 117

(2d Cir. 2007).     Because Pun failed to challenge the IJ’s

denial of relief under the CAT in his appeal to the BIA, we

lack jurisdiction to consider any challenge to the denial of

that relief.     8 U.S.C. § 1252(d)(1).

III. Motion to Remand

    Finally, the agency did not abuse its discretion by

denying Pun’s motion to remand.      See Sanusi v. Gonzales, 

, 201 (2d Cir. 2006).     Motions to remand are subject

to the same substantive requirements as motions to reopen,


                                 6
including the requirement that the “evidence sought to be

offered is material and was not available and could not have

been discovered or presented at the former hearing.”

8 C.F.R. § 1003.2(c); Matter of Coelho, 20 I. & N. Dec. 464

(BIA 1992).    In support of his motion, Pun presented articles

describing the deterioration of conditions in Nepal after the

resignation of the prime minister, and a letter from his

brother describing his experiences after returning to Nepal

from Dubai.    However, because none of these materials

demonstrated that the Maoists would single Pun out for

persecution on the basis of his political beliefs, the

evidence was not material.     See 8 C.F.R. §§ 1003.2(c),

1208.13(b)(2)(iii).     Pun also failed to demonstrate that these

materials were unavailable to him when he first made his

petition.     Accordingly, the BIA did not abuse its discretion

in denying Pun’s motion to remand.

    For the foregoing reasons, the petition for review is

DENIED.

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




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