Filed: May 29, 2012
Latest Update: Feb. 12, 2020
Summary: 11-2310-ag Thakali v. Holder BIA Hom, IJ A089 252 847 A089 252 848 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 DATABAS
Summary: 11-2310-ag Thakali v. Holder BIA Hom, IJ A089 252 847 A089 252 848 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..
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11-2310-ag
Thakali v. Holder
BIA
Hom, IJ
A089 252 847
A089 252 848
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 29th day of May, two thousand twelve.
PRESENT:
REENA RAGGI,
GERARD E. LYNCH,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_______________________________________
PRAMALI THAKALI, SURINDER KUMAR1,
Petitioners,
v. 11-2310-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Jason A. Nielson, New York, New
York.
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Pursuant to a February 2012 stipulation order, the
instant petition for review has been withdrawn as to Kumar.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Cindy S. Ferrier, Assistant
Director; Joseph A. O’Connell, 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 Pramila Thakali, a native and citizen of
Nepal, seeks review of a May 11, 2011, decision of the BIA
affirming the April 14, 2009, decision of Immigration Judge
(“IJ”) Sandy Hom, pretermitting her application for asylum
and denying her claims for withholding of removal and relief
under the Convention Against Torture (“CAT”). In re Pramila
Thakali, Surinder Kumar, Nos. A089 252 847/ 848 (B.I.A. May
11, 2011), aff’g Nos. A089 252 847/ 848 (Immig. Ct. N. Y.
City, Apr. 14, 2009). We assume the parties’ familiarity
with the underlying facts and procedural history in this
case.
“Because the BIA adopted and affirmed the IJ's
decision, we review the two decisions in tandem.” Yanqin
Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). “The
substantial evidence standard of review applies, and we
2
uphold the IJ's factual findings if they are supported by
reasonable, substantial and probative evidence in the
record.” Id. (internal quotation marks and citations
omitted). See also 8 U.S.C. § 1252(b)(4)(B).
I. Asylum Pretermission
We lack jurisdiction to review the agency’s decision
that Thakali failed to demonstrate changed or extraordinary
circumstances to excuse the late filing of her asylum
application See 8 U.S.C. §§ 1158(a)(2)(B), 1158(a)(2)(D).
While we retain jurisdiction to review constitutional claims
and questions of law, id. § 1252(a)(2)(D), Thakali’s
argument challenging only the agency’s fact-finding presents
no such issue. See Xiao Ji Chen v. U.S. Dep’t of Justice,
471 F.3d 315, 329 (2d Cir. 2006).
II. Past Persecution
Thakali argues that the extortion attempts and threats
she endured at the hands of the Maoists constituted past
persecution on account of her political opposition to the
Maoist forces. This Court has previously described
persecution as “the infliction of suffering or harm upon
those who differ on the basis of a protected statutory
ground.” Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d Cir.
3
2011)(citing Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d
332, 341 (2d Cir. 2006)). In addition, the harm must be
sufficiently severe, rising above “mere harassment.”
Ivanishvili, 433 F.3d at 341. Here, the BIA reasonably
found that the harm Thakali alleged - unfulfilled threats -
did not rise to the level of persecution. See Guan Shan
Liao v. U.S. Dep’t of Justice,
293 F.3d 61, 70 (2d Cir.
2002) (stating that a “threat of detention . . . itself . .
. is not past persecution”); see also Gui Ci Pan v. U.S.
Attorney Gen.,
449 F.3d 408, 412 (2d Cir. 2006) (collecting
cases that have “rejected [persecution] claims involving
‘unfulfilled’ threats”).
III. Future Persecution
The agency also reasonably found that Thakali failed to
establish that "one central reason" for the Maoists' threats
and her fear of future harm is on account of a protected
ground. Thakali argues that the agency erred in finding
that she was not persecuted and would not suffer future harm
on account of her political opinion. Section 101(a)(3) of
the REAL ID Act, codified at 8 U.S.C. § 1158(b)(1)(B)(i)–
applicable here because Thakali filed her application in
2007, see REAL ID Act § 101(h)(2) – provides that an asylum
applicant “must establish that [a protected ground] was or
4
will be at least one central reason for” the claimed
persecution. See Castro v. Holder, 597 F.3d 93, 100 (2d
Cir. 2010).
To the extent that Thakali argues that she was targeted
on account of her involvement in a women’s group in Nepal,
she has failed to exhaust that argument by failing to
present it to the BIA. See 8 U.S.C. § 1158(a)(3); see also
Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004) (requiring
that petitioners raise to the BIA the specific issues they
later raise in this Court).
To the extent that Thakali argues that she was targeted
because of her opposition to Maoist insurgents, the BIA’s
rejection of that argument was not erroneous. Thakali
stated that Maoists came to her hotel to extort money from
her guests and she informed the police, who took the Maoists
into custody. Roughly two weeks later, the Maoists returned
to her hotel, stating: “You informed the Police and [] made
arrest our Friends. Now our party decided to get 200,000
[rupees] As a donation.” Given that Maoist forces expressed
an economic rather than a political motive as the reason for
their return visit, the agency reasonably concluded that
Thakali was targeted on account of her ability to provide
financial resources and that as a result, she had not
5
demonstrated persecution on account of a protected ground.
See Ucelo-Gomez v. Mukasey, 509 F.3d 70, 72-73 (2d Cir.
2007).
The agency's conclusion that Thakali failed to
demonstrate a likelihood of future persecution is further
supported by its reliance on Thakali's testimony that her
sisters and brother remain in Nepal unharmed. See Melgar de
Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999) (concluding
that where asylum applicant’s family members continued to
live in Petitioner’s native country, claim of well-founded
fear was diminished). Additionally, the agency reasonably
noted that when Thakali reported the Maoists to the police,
they arrested ten individuals, undermining her claim that
the police are unable or unwilling to protect her, and
further undermining her fear of future harm. See Matter of
Acosta, 19 I.&N. Dec. 211, 222 (BIA 1985), overruled on
other grounds, I.N.S. v. Cardoza-Fonseca,
480 U.S. 421
(1987).
Accordingly, substantial evidence supports the agency's
finding that Thakali failed to establish a likelihood of
persecution on account of a protected ground. See Jian Xing
Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (absent solid
support in the record, a fear of future harm is “speculative
6
at best.”). Because Thakali's claim for CAT relief rests on
the same factual predicate as her withholding claim, it
necessarily fails. Xue Hong Yang v. U.S. Dep’t of Justice,
426 F.3d 520, 523 (2d Cir. 2005).
For the foregoing reasons, the petition for review is
DENIED. Petitioner’s pending motion for a stay of removal
is accordingly DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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