Filed: May 31, 2017
Latest Update: Mar. 03, 2020
Summary: 16-735 Pokharel v. Sessions BIA Straus, IJ A205 646 800 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: 16-735 Pokharel v. Sessions BIA Straus, IJ A205 646 800 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 ..
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16-735
Pokharel v. Sessions
BIA
Straus, IJ
A205 646 800
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 31st day of May, two thousand seventeen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 BARRINGTON D. PARKER,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 LAL CHANDRA POKHAREL,
14 Petitioner,
15
16 v. 16-735
17 NAC
18 JEFFERSON B. SESSIONS III, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Khagendra Gharti-Chhetry, New York,
24 NY.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; Russell
28 J. E. Verby, Senior Litigation
29 Counsel; John D. Williams, Trial
30 Attorney, Office of Immigration
31 Litigation, United States
32 Department of Justice, Washington,
33 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 Lal Chandra Pokharel, a native and citizen of
6 Nepal, seeks review of a February 19, 2016, decision of the BIA
7 affirming September 16, 2014, decision of an Immigration Judge
8 (“IJ”) denying asylum, withholding of removal, and relief under
9 the Convention Against Torture (“CAT”). In re Lal Chandra
10 Pokharel, No. A205 646 800 (B.I.A. Feb. 19, 2016), aff’g No.
11 A205 646 800 (Immig. Ct. Hartford Sept. 16, 2014). We assume
12 the parties’ familiarity with the underlying facts and
13 procedural history in this case.
14 We have reviewed the IJ’s and the BIA’s decisions “for the
15 sake of completeness.” Wangchuck v. Dep’t of Homeland Sec.,
16 448 F.3d 524, 528 (2d Cir. 2006). The applicable standards of
17 review are well established. See 8 U.S.C. § 1252(b)(4)(B);
18 Yanqin Weng v. Holder,
562 F.3d 510, 513 (2d Cir. 2009).
19 For asylum, withholding of removal, and CAT relief, “[t]he
20 testimony of [an] applicant may be sufficient to sustain the
21 applicant’s burden without corroboration, but only if the
22 applicant satisfies the trier of fact that the applicant’s
2
1 testimony is credible, is persuasive, and refers to specific
2 facts sufficient to demonstrate that the applicant is a
3 refugee.” 8 U.S.C. § 1158(b)(1)(B)(ii); see also 8 U.S.C.
4 § 1231(b)(3)(C); 8 C.F.R. § 1208.16(c)(2). “Where the trier
5 of fact determines that the applicant should provide evidence
6 that corroborates otherwise credible testimony, such evidence
7 must be provided unless the applicant does not have the evidence
8 and cannot reasonably obtain the evidence.” 8 U.S.C.
9 § 1158(b)(1)(B)(ii). We find no error in the agency’s
10 conclusions that Pokharel failed to satisfy his burden of proof
11 for asylum, withholding of removal, and CAT relief as to his
12 claims that Maoists beat him on account of his membership in
13 the Nepali Congress Party, and threatened him if he did not pay
14 them extortion money.
15 I. Asylum and Withholding of Removal
16 To establish eligibility, an asylum applicant must show
17 that he or she has suffered past persecution, or has a
18 well-founded fear of future persecution, “on account of race,
19 religion, nationality, membership in a particular social group,
20 or political opinion.” 8 U.S.C. § 1101(a)(42).
21
22
3
1 Past Persecution
2 “[P]ersecution is ‘an extreme concept that does not include
3 every sort of treatment our society regards as offensive.’”
4 Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d Cir. 2011) (quoting
5 Ai Feng Yuan v. U.S. Dep’t of Justice,
416 F.3d 192, 198 (2d
6 Cir. 2005))). A valid claim of past persecution may
7 “encompass[] a variety of forms of adverse treatment, including
8 non-life-threatening violence and physical abuse,” but the harm
9 must be sufficiently severe, rising above “mere harassment.”
10 Ivanishvili v. U.S. Dep’t of Justice,
433 F.3d 332, 341 (2d Cir.
11 2006). “‘[T]he difference between harassment and persecution
12 is necessarily one of degree,’ . . . the degree must be assessed
13 with regard to the context in which the mistreatment occurs.”
14 Beskovic v. Gonzales,
467 F.3d 223, 226 (2d Cir. 2006) (quoting
15
Ivanishvili, 433 F.3d at 341). “The [agency] must, therefore,
16 be keenly sensitive to the fact that a ‘minor beating’ or, for
17 that matter, any physical degradation designed to cause pain,
18 humiliation, or other suffering, may rise to the level of
19 persecution if it occurred in the context of an arrest or
20 detention on the basis of a protected ground.”
Id.
21 The agency did not err in concluding that Pokharel failed
22 to establish that a 2004 incident when Maoists beat him rose
4
1 to the level of persecution. He provided few details in his
2 testimony about the beating and resulting injuries. And he
3 failed to submit evidence from the center that treated him so
4 as to provide a more detailed description of his injuries.
5 Therefore, while this incident was reprehensible, the agency
6 did not err in finding that Pokharel failed to satisfy his burden
7 of establishing that the harm he suffered rose to the level of
8 persecution. See 8 U.S.C. § 1158(b)(1)(B)(ii); see also
9 Beskovic, 467 F.3d at 226; Jian Qiu Liu v. Holder,
632 F.3d 820,
10 822 (2d Cir. 2011).
11 Well-Founded Fear of Future Persecution
12 Absent past persecution, Pokharel had the burden of
13 demonstrating a well-founded fear of future persecution on
14 account of his race, religion, nationality, membership in a
15 particular social group, or political opinion. 8 U.S.C.
16 § 1158(b)(1)(B)(i); 8 C.F.R. § 1208.13(a), (b). In order to
17 establish a well-founded fear of future persecution, an
18 applicant must show either a reasonable possibility that he
19 would be singled out for persecution or that the country of
20 removal has a pattern or practice of persecuting individuals
21 similarly situated to him. 8 C.F.R. § 1208.13(b)(2)(iii).
5
1 The agency did not err in finding that Pokharel failed to
2 establish a well-founded fear of being singled out for
3 persecution on account of his political opinion. His testimony
4 that he feared returning to his home village based on threats
5 and a false accusation by Maoists in 2008 was not sufficiently
6 credible or persuasive as he failed to provide any details about
7 the incident and his evidence was inconsistent with regard to
8 whether his wife ever returned to their village after 2008. See
9 8 U.S.C. § 1158(b)(1)(B)(ii). Furthermore, Pokharel admitted
10 that he had no basis to conclude that a Maoist who threatened
11 him for extortion in Kathmandu in 2012 was motivated by
12 Pokharel’s political opinion, and thus his fear to that extent
13 was not based on a protected ground. See 8 U.S.C.
14 § 1158(b)(1)(B)(i); see INS v. Elias-Zacarias, 502 U.S. 478,
15 482 (1992) (“The ordinary meaning of the phrase ‘persecution
16 on account of ... political opinion’ . . . is persecution on
17 account of the victim’s political opinion, not the
18 persecutor’s.”).
19 Nor did the agency err in determining that Pokharel failed
20 to establish a pattern or practice of persecution of similarly
21 situated individuals. The IJ acknowledged an affidavit from
22 an alleged expert on Nepal, suggesting that seemingly stable
6
1 political conditions in Nepal were fragile and that Maoists
2 would target those they had in the past if political conditions
3 unraveled. But, as the IJ found, there was no record evidence
4 indicating that Maoist violence remains a widespread problem
5 or that Maoists continue to target Nepali Congress Party
6 members. On this record, the agency did not err in determining
7 that Pokharel failed to demonstrate “systemic or pervasive”
8 persecution of similarly situated Nepali Congress Party members
9 sufficient to demonstrate a pattern and practice of persecution
10 in Nepal. In re A-M-, 23 I. & N. Dec. 737, 741 (B.I.A. 2005);
11 see also 8 C.F.R. § 1208.13(b)(2)(iii); Santoso v. Holder, 580
12 F.3d 110, 112 & n.1 (2d Cir. 2009) (denying petition where agency
13 considered background materials and rejected pattern or
14 practice claim).
15 Accordingly, because the agency reasonably found that
16 Pokharel failed to demonstrate a well-founded fear of
17 persecution on account of his political opinion, it did not err
18 in denying asylum and withholding of removal. See Paul v.
19 Gonzales,
444 F.3d 148, 156 (2d Cir. 2006).
20 II. Convention Against Torture
21 To receive CAT relief, an applicant must establish a
22 likelihood of torture with government acquiescence. See
7
1 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1); see also Khouzam v.
2 Ashcroft, 361 F.3d 161, 168-69 (2d Cir. 2004). Unlike asylum
3 and withholding of removal, CAT relief does not require a nexus
4 to any protected ground. See 8 C.F.R. § 1208.16(c)(2).
5 We find no error in the agency’s determination that
6 Pokharel failed to demonstrate a likelihood of torture with the
7 acquiescence of Nepali officials. Id.; see also Khouzam,
361
8 F.3d at 168-69. The record does not establish that Maoist
9 violence and extortion continues to be a problem throughout
10 Nepal, and Pokharel did not demonstrate that the Nepali
11 government, which his party controlled at the time of his
12 hearing, would acquiesce in his torture.
13 For the foregoing reasons, the petition for review is
14 DENIED.
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
8
