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Kandel v. Barr, 18-2796 (2020)

Court: Court of Appeals for the Second Circuit Number: 18-2796 Visitors: 12
Filed: Oct. 30, 2020
Latest Update: Oct. 30, 2020
Summary: 18-2796 Kandel v. Barr BIA Nelson, IJ A205 726 059 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 NOTA
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     18-2796
     Kandel v. Barr
                                                                            BIA
                                                                       Nelson, IJ
                                                                    A205 726 059
                           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
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 30th day of October, two thousand twenty.
 5
 6   PRESENT:
 7            JON O. NEWMAN,
 8            JOHN M. WALKER, JR.,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   YAM LAL KANDEL,
14            Petitioner,
15
16                    v.                                  18-2796
17                                                        NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                  Jason Schaffer, Mungoven &
24                                    Associates, P.C., New York, NY.
25
26   FOR RESPONDENT:                  Joseph H. Hunt, Assistant Attorney
27                                    General; Derek C. Julius,
28                                    Assistant Director; Regina Byrd,
 1                                   Trial Attorney, Office of
 2                                   Immigration Litigation, United
 3                                   States Department of Justice,
 4                                   Washington, DC.

 5        UPON DUE CONSIDERATION of this petition for review of a

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

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

 8   is DENIED.

 9        Petitioner Yam Lal Kandel, a native and citizen of Nepal,

10   seeks review of an August 23, 2018, decision of the BIA

11   affirming an August 9, 2017, decision of an Immigration Judge

12   (“IJ”) denying Kandel’s application for asylum, withholding

13   of removal, and relief under the Convention Against Torture

14   (“CAT”).      In re Yam Lal Kandel, No. A 205 726 059 (B.I.A. Aug.

15   23, 2018), aff’g No. A 205 726 059 (Immig. Ct. N.Y. City Aug.

16   9,   2017).      We   assume   the   parties’ familiarity   with   the

17   underlying facts and procedural history.

18        In lieu of filing a brief, the Government moves for

19   summary denial of Kandel’s petition for review.              Summary

20   denial is warranted only if a petition is frivolous.               See

21   Pillay v. INS, 
45 F.3d 14
, 17 (2d Cir. 1995).         We decline to

22   address whether this petition is frivolous.        Kandel has filed

23   his merits brief, and so we treat the Government’s motion as

                                          2
 1   a response to that brief.

 2          Under the circumstances of this case, we have reviewed

 3   both    the   BIA’s   and    IJ’s   decisions       “for   the   sake   of

 4   completeness.”    Wangchuck v. Dep’t of Homeland Sec., 
448 F.3d 5
  524, 528 (2d Cir. 2006).        The applicable standards of review

 6   are well established.        See 8 U.S.C. § 1252(b)(4)(B); Yanqin

 7   Weng v. Holder, 
562 F.3d 510
, 513 (2d Cir. 2009) (reviewing

 8   factual findings for substantial evidence and questions of

 9   law and the application of law to undisputed facts de novo).

10          To establish asylum eligibility, an applicant must show

11   that he has suffered past persecution, or has a well-founded

12   fear of future persecution, on account of a protected ground.

13   See 8 U.S.C. § 1101(a)(42).             If the applicant is found to

14   have suffered past persecution, he is presumed to have a well-

15   founded fear     of   future   persecution     on    the basis    of    the

16   original claim.       8 C.F.R. § 1208.13(b)(1).            Kandel alleged

17   that Maoists assaulted him in 2004 because he supported the

18   Nepali Congress Party and that they would harm him again if

19   he returns to Nepal.        As set forth below, the agency did not

20   err in denying asylum and withholding of removal because

21   Kandel’s past harm did not rise to the level of persecution


                                         3
 1   and he did not establish that he could not reasonably relocate

 2   withing Nepal.

 3   Past Persecution

 4         “[P]ersecution is ‘an extreme concept that does not

 5   include   every       sort   of    treatment     our   society   regards    as

 6   offensive.’”      Mei Fun Wong v. Holder, 
633 F.3d 64
, 72 (2d

 7   Cir. 2011) (quoting Ai Feng Yuan v. U.S. Dep’t of Justice,

 8   
416 F.3d 192
,      198   (2d     Cir.    2005)).       Persecution     may

 9   “encompass[]      a    variety      of   forms    of   adverse   treatment,

10   including non-life-threatening violence and physical abuse,”

11   but the harm must be sufficiently severe, rising above “mere

12   harassment.”      Ivanishvili v. U.S. Dep’t of Justice, 
433 F.3d 13
  332, 341 (2d Cir. 2006) (internal quotation marks and brackets

14   omitted).      “‘[T]he        difference         between   harassment      and

15   persecution is necessarily one of degree,’ . . . the degree

16   must be assessed with regard to the context in which the

17   mistreatment occurs.”             Beskovic v. Gonzales, 
467 F.3d 223
,

18   226 (2d Cir. 2006) (quoting 
Ivanishvili, 433 F.3d at 341
).

19         The agency did not err in finding that Kandel’s past harm

20   did not rise to the level of persecution because there was

21   only one attack, it lasted approximately a minute, and Kandel


                                              4
 1   did not require any medical attention after this incident.

 2   See Jian Qiu Liu v. Holder, 
632 F.3d 820
, 822 (2d Cir. 2011)

 3   (upholding agency’s decision that applicant did not suffer

 4   past persecution when, “prior to his arrest and detention by

 5   local police, he suffered only minor bruising . . . , which

 6   required no formal medical attention and had                         no lasting

 7   physical effect”); cf. 
Beskovic, 467 F.3d at 226
(“The BIA

 8   must, therefore, be keenly sensitive to the fact that a ‘minor

 9   beating’     or,    for   that   matter,      any    physical       degradation

10   designed to cause pain, humiliation, or other suffering, may

11   rise to the level of persecution if it occurred in the context

12   of    an   arrest   or    detention     on   the    basis   of   a    protected

13   ground.”).     Moreover, although Kandel testified that his wife

14   was assaulted in 2016, her harm is not persecution of him,

15   particularly as he was in the United States when this alleged

16   incident occurred.          See Tao Jiang v. Gonzales, 
500 F.3d 137
,

17   141   (2d    Cir.   2007)    (“As   a   general principle,           an   asylum

18   applicant cannot claim past persecution based solely on harm

19   that was inflicted on a family member on account of that

20   family      member’s      political     opinion      or     other     protected

21   characteristic.”).


                                             5
 1   Fear of Future Persecution

 2        Absent a finding of past persecution, an applicant may

 3   establish    asylum    eligibility           based   on     a   fear   of   future

 4   persecution,     but       the    applicant          must       show   that    “he

 5   subjectively fears persecution and establish that his fear is

 6   objectively reasonable.”           Ramsameachire v. Ashcroft, 
357 F.3d 7
  169, 178 (2d Cir. 2004).           Although a fear may be objectively

 8   reasonable     “even       if    there       is   only      a   slight,     though

 9   discernible, chance of persecution,” Diallo v. INS, 
232 F.3d 10
  279, 284 (2d Cir. 2000), a fear is not objectively reasonable

11   if it lacks “solid support” in the record and is merely

12   “speculative at best,” Jian Xing Huang v. U.S. INS, 
421 F.3d 13
  125, 129 (2d Cir. 2005).           An applicant has not established a

14   well-founded fear of future persecution “if the applicant

15   could avoid persecution by relocating to another part of the

16   applicant’s country of nationality . . . if under all the

17   circumstances it would be reasonable to expect the applicant

18   to   do   so.”         8    C.F.R.       § 1208.13(b)(2)(ii);           see
id. 19
  § 1208.13(b)(3)(i) (“In cases in which the applicant has not

20   established past persecution, the applicant shall bear the

21   burden of establishing that it would not be reasonable for


                                              6
 1   him or her to relocate, unless the persecution is by a

 2   government or is government-sponsored.”).               In determining

 3   whether    internal     relocation      is reasonable,     the    agency

 4   “consider[s] . . . whether the applicant would face other

 5   serious harm in the place of suggested relocation; any ongoing

 6   civil strife within the country; administrative, economic, or

 7   judicial infrastructure; geographical limitations; and social

 8   and cultural constraints, such as age, gender, health, and

 9   social and familial ties.”
Id. § 1208.13(b)(3). As
the

10   Government argues, the agency did not err in concluding that

11   Kandel    failed   to   establish    that   internal    relocation   was

12   unreasonable.

13       The    agency     reasonably    determined   that    Kandel    could

14   internally relocate within Nepal because he lived unharmed in

15   Kathmandu for approximately a year between his return from

16   Saudi Arabia in March 2011 and his departure for the United

17   States in March 2012.      The agency reasonably determined that

18   the higher cost of living in Kathmandu did not preclude Kandel

19   from relocating his family when Kandel previously afforded

20   living in Kathmandu and Kandel could also relocate to another

21   area of Nepal that was less expensive.                 Although Kandel


                                         7
 1   testified that he could not live in Kathmandu because the

 2   Maoists would find him, the agency was not required to accept

 3   this assertion because the Maoists had not previously found

 4   him while he was living in Kathmandu.              Moreover, the country

 5   conditions evidence does not show that Maoists are currently

 6   engaged    in   violent     acts   against      Nepali     Congress    Party

 7   supporters.     Kandel’s evidence includes an article reporting

 8   that a Maoist leader sided with members of the Nepali Congress

 9   Party in supporting the new constitution, and other articles

10   discussing a power sharing deal between the Maoist party and

11   the   Nepali    Congress    Party.        There    is    limited    evidence

12   regarding a breakaway Maoist faction, and no evidence that

13   they have targeted Nepali Congress Party members.                   See Jian

14   Xing 
Huang, 421 F.3d at 129
(holding that a fear is not

15   objectively reasonable if it lacks “solid support” in the

16   record).

17         In sum, because Kandel did not suffer past harm rising

18   to the level of persecution or show that relocation was

19   unreasonable, he      did    not   meet   his     burden    for    asylum   or

20   withholding     of   removal.      See    8   C.F.R.       § 1208.13(b)(1),

21   (b)(2)(ii); Lecaj v. Holder, 
616 F.3d 111
, 119 (2d Cir. 2010).


                                          8
1   Kandel does not challenge the denial of CAT relief.

2       For the foregoing reasons, the petition for review is

3   DENIED.   All pending motions and applications are DENIED and

4   stays VACATED.

5                               FOR THE COURT:
6                               Catherine O’Hagan Wolfe,
7                               Clerk of Court
8




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