Gurung v. Barr

17-3517 Gurung v. Barr BIA Loprest, IJ A205 894 859 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 8th day of August, two thousand nineteen. [5] 6 PRESENT: 7 DENNIS JACOBS, 8 RAYMOND J. LOHIER, JR., 9 RICHARD J. SULLIVAN, 10 Circuit Judges. 11 _____________________________________ [12] 13 BAL BAHADUR GURUNG, [14] 15 Petitioner, [16] 17 v. 17-3517 18 NAC 19 WILLIAM P. BARR, UNITED STATES 20 ATTORNEY GENERAL, [21] 22 Respondent. 23 _____________________________________ [24] 25 FOR PETITIONER: Gary J. Yerman, New York, NY. [26] 27 FOR RESPONDENT: Chad A. Readler, Acting Assistant 28 Attorney General; Greg D. Mack, 1 Senior Litigation Counsel; Lisa M. 2 Damiano, Trial Attorney, Office of 3 Immigration Litigation, United 4 States Department of Justice, 5 Washington, DC. [6] 7 UPON DUE CONSIDERATION of this petition for review of a 8 Board of Immigration Appeals (“BIA”) decision, it is hereby 9 ORDERED, ADJUDGED, AND DECREED that the petition for review 10 is DENIED. 11 Petitioner Bal Bahadur Gurung, a native and citizen of 12 Nepal, seeks review of an October 6, 2017, decision of the 13 BIA affirming a March 2, 2017, decision of an Immigration 14 Judge (“IJ”) denying asylum, withholding of removal, and 15 relief under the Convention Against Torture (“CAT”). Gurung, 16 No. A205 894 859 (B.I.A. Oct. 6, 2017), aff’g No. A205 894 17 859 (Immig. Ct. N.Y. City Mar. 2, 2017). We assume the 18 parties’ familiarity with the underlying facts and procedural 19 history in this case. 20 Under the circumstances of this case, we have considered 21 both the IJ’s and the BIA’s decisions. See Yan Chen v. 22 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The standards 23 of review are well established. See 8 U.S.C. 24 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d 25 Cir. 2009) (reviewing factual findings for substantial [2] 1 evidence and questions of law and application of law to fact 2 de novo). 3 Even assuming Gurung’s credibility, we find no error in 4 the agency’s alternative conclusion that he did not establish 5 past persecution or a well-founded fear of future 6 persecution. 7 The BIA has defined persecution as “a threat to the life 8 or freedom of, or the infliction of suffering or harm upon, 9 those who differ in a way regarded as offensive.” Acosta, [10] 19 I. & N. Dec. 211, 222 (BIA 1985). A past persecution 11 claim can be based on harm other than threats to life or 12 freedom, including “non-life-threatening violence and 13 physical abuse.” Beskovic v. Gonzales, 467 F.3d 223 , 226 n.3 14 (2d Cir. 2006). In order to constitute persecution, the 15 alleged harm must be sufficiently severe, rising above “mere 16 harassment.” Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 17 332, 341 (2d Cir. 2006). “[T]he difference between 18 harassment and persecution is necessarily one of degree that 19 must be decided on a case-by-case basis.” Id. “The 20 cumulative effect of the applicant’s experience must be taken 21 into account” in deciding whether the applicant has suffered 22 persecution. Poradisova v. Gonzales, 420 F.3d 70, 80 (2d [3] 1 Cir. 2005) (quotation marks omitted). 2 The agency did not err in finding that the single beating 3 Gurung endured and subsequent telephonic and written threats 4 he received did not cumulatively rise to the level of 5 persecution. A beating is not “persecution per se” and the 6 agency must consider the context, including whether the 7 beating occurred during an arrest or detention, the resulting 8 injuries, and the need for medical attention. Jian Qiu Liu 9 v. Holder, 632 F.3d 820, 822 (2d Cir. 2011); see also 10 Beskovic, 467 F.3d at 226 (“[A] ‘minor beating’ . . . 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.”). While Gurung went to the hospital, he did not 14 allege severe injuries, but stated only that he received 15 ointment for his injuries and was released the same day. And 16 the other documented incidents were isolated: the beating was 17 in June 2012, a threatening letter came more than four months 18 later in November 2012 and contained no specific threat of 19 physical harm, and Gurung did not describe the frequency or 20 content of the telephonic threats. Such unfulfilled threats 21 generally will not constitute past persecution. See Gui Ci 22 Pan v. U.S. Att’y Gen., 449 F.3d 408, 412 (2d Cir. 2006). [4] 1 Accordingly, the agency did not err in concluding that the 2 cumulative harm Gurung experienced did not rise to the level 3 of persecution. See Poradisova, 420 F.3d at 80 ; Jian Qiu 4 Liu, 632 F.3d at 822 . 5 Absent past persecution, Gurung had the burden of 6 establishing an “objectively reasonable” fear of future 7 persecution. Ramsameachire v. Ashcroft, 357 F.3d 169 , 178 8 (2d Cir. 2004). A fear may be objectively reasonable “even 9 if there is only a slight, though discernible, chance of 10 persecution.” Diallo v. INS, 232 F.3d 279, 284 (2d Cir. 11 2000). But a fear is not objectively reasonable if it lacks 12 “solid support” in the record and is merely “speculative at 13 best.” Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 14 2005). 15 Gurung’s evidence did not establish an objectively 16 reasonable threat. First, while he alleged that his uncle 17 was involved in the same political party, his uncle remained 18 unharmed in Nepal. See Melgar de Torres v. Reno, 191 F.3d 19 307, 313 (2d Cir. 1999) (finding future fear diminished when 20 similarly situated individuals are able to live unharmed in 21 asylum applicant’s native country). Moreover, although 22 Gurung’s uncle’s letters stated that Maoists continued to ask [5] 1 about Gurung, the letters lacked any detail about when or how 2 such inquiries were made. 3 Second, given the Maoists’ 2013 electoral defeat and the 4 absence of any specific allegations that members of the 5 Rastriya Prajatantra Party had been harmed following the 2013 6 election, Gurung’s fear of future harm is “speculative at 7 best.” Jian Xing Huang, 421 F.3d at 129 . 8 For the foregoing reasons, the petition for review is 9 DENIED. As we have completed our review, any stay of removal 10 that the Court previously granted in this petition is VACATED, 11 and any pending motion for a stay of removal in this petition 12 is DISMISSED as moot. Any pending request for oral argument 13 in this petition is DENIED in accordance with Federal Rule of 14 Appellate Procedure 34(a)(2) and Second Circuit Local Rule 15 34.1(b). [16] 17 FOR THE COURT: 18 Catherine O’Hagan Wolfe 19 Clerk of Court