         10-5150-ag
         Sherpa v. Holder
                                                                                        BIA
                                                                                   Rohan, IJ
                                                                               A093 412 536
                             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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 1st day of December, two thousand eleven.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                ROBERT A. KATZMANN,
 9                DENNY CHIN,
10                    Circuit Judges.
11       _______________________________________
12
13       FUDOMA SHERPA,
14                Petitioner,
15
16                          v.                                  10-5150-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Julie Mullaney, Mount Kisco, NY.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General; David V. Bernal, Assistant
27                                     Director; Lindsay E. Williams,
28                                     Attorney, Office of Immigration
29                                     Litigation, United States Department
30                                     of Justice, Washington, D.C.
 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

 4   is DISMISSED, in part, and DENIED, in part.

 5       Fudoma Sherpa, a native and citizen of Nepal, seeks

 6   review of a November 29, 2010, decision of the BIA affirming

 7   the May 3, 2010, decision of Immigration Judge (“IJ”)

 8   Patricia A. Rohan, which denied her application for asylum,

 9   withholding of removal, and relief under the Convention

10   Against Torture (“CAT”), and denying her motion to remand.

11   In re Fudoma Sherpa, No. A093 412 536 (B.I.A. Nov. 29,

12   2010), aff’g No. A093 412 536 (Immig. Ct. N.Y. City May 3,

13   2010).   We assume the parties’ familiarity with the

14   underlying facts and procedural history in this case.

15       Under the circumstances of this case, we review the

16   IJ’s decision as supplemented by the BIA.     See Yan Chen v.

17   Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).    The applicable

18   standards of review are well-established.     See

19   8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d

20   510, 513 (2d Cir. 2009); Li Yong Cao v. U.S. Dep’t of

21   Justice, 421 F.3d 149, 157 (2d Cir. 2005).

22       We do not have jurisdiction to review the agency’s

23   finding that Sherpa’s asylum application was untimely under

                                   2
 1   8 U.S.C. § 1158(a)(2)(B), or its finding of neither changed

 2   nor extraordinary circumstances excusing the untimeliness

 3   under 8 U.S.C. § 1158(a)(2)(D).   See 8 U.S.C. § 1158(a)(3).

 4   Although we retain jurisdiction to review constitutional

 5   claims and “questions of law,” see 8 U.S.C. § 1252(a)(2)(D),

 6   Sherpa’s challenge to the IJ’s finding that she did not

 7   establish extraordinary circumstances is simply a challenge

 8   to the agency’s fact-finding, over which we do not have

 9   jurisdiction, see 8 U.S.C. § 1158(a); Xiao Ji Chen v. U.S.

10   Dep’t of Justice, 471 F.3d 315, 323-32 (2d Cir. 2006).

11   Accordingly, we dismiss the petition with respect to asylum

12   and address only Sherpa’s challenge to the denial of

13   withholding of removal, CAT relief, and her motion to

14   remand.

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

16   life or freedom of, or the infliction of suffering or harm

17   upon, those who differ in a way regarded as offensive.”

18   Matter of Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985),

19   overruled, in part, on other grounds, by INS v.

20   Cardoza-Fonseca, 480 U.S. 421 (1987); accord Ivanishvili v.

21   U.S. Dep’t of Justice, 433 F.3d 332, 341-43 (2d Cir. 2006).

22   The harm must be sufficiently severe, rising above “mere


                                  3
 1   harassment.”   Ivanishvili, 433 F.3d at 341.   The IJ

 2   addressed the harassment and intimidation described by

 3   Sherpa, and reasonably found that it was insufficiently

 4   severe to constitute persecution.    See id.   As the agency

 5   noted, the entire extent of the harm Sherpa claimed was that

 6   the Maoists sent her and her husband letters demanding money

 7   and threatening to harm them if they did not donate money or

 8   join the Maoists.   As a result, Sherpa and her husband left

 9   their village and moved to Kathmandu.    The agency did not

10   err in finding that these incidents, considered

11   cumulatively, did not amount to persecution.     See id.; Gui

12   Ci Pan v. U.S. Att’y Gen., 449 F.3d 408, 412 (2d Cir. 2006)

13   (noting that courts have “rejected [persecution] claims

14   involving ‘unfulfilled’ threats”).

15       Sherpa also argues that, independent from her past

16   persecution, she fears future persecution if she returns to

17   Nepal, because she was displaced from her home and the

18   Maoists continue to look for her.    However, as the agency

19   noted, Sherpa’s husband and children remain in Kathmandu

20   unharmed.   Because Sherpa’s well-founded fear was based

21   primarily on the political activity in which her husband was

22   engaged, it was not improper for the agency to consider her


                                   4
 1   fear of persecution diminished because her husband, who was

 2   similarly-situated, remained in Nepal unharmed.     See Melgar

 3   de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999).

 4   Because Sherpa was unable to show either past persecution or

 5   a clear probability of future persecution in Nepal, the

 6   agency did not err in denying her application for

 7   withholding of removal, and her application for CAT relief,

 8   as that claim was based on the same factual predicate.     See

 9   8 C.F.R. § 1208.16(b)(1); Ramsameachire v. Ashcroft, 357

10   F.3d 169, 178 (2d Cir. 2004); Paul v. Gonzales, 444 F.3d

11   148, 155-56 (2d Cir. 2006).

12       Nor did the agency abuse its discretion by denying

13   Sherpa’s motion to remand.     See Sanusi v. Gonzales, 445 F.3d

14   193, 201 (2d Cir. 2006).     Motions to remand are subject to

15   the same substantive requirements as motions to reopen,

16   including the requirement that the “evidence sought to be

17   offered is material and was not available and could not have

18   been discovered or presented at the former hearing.”     See 8

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

20   (BIA 1992).   In support of her motion, Sherpa presented a

21   clinical evaluation by a licensed clinical social worker

22   indicating that she suffered from post traumatic stress

23   disorder, and stated that she was presenting the clinical
                                   5
 1   evaluation to counter the IJ’s adverse credibility finding.

 2   Sherpa did not address why she could not have obtained the

 3   evaluation for her merits hearing, and, because the IJ

 4   explicitly found Sherpa to be credible, the evaluation was

 5   not material.     See 8 C.F.R. § 1003.2(c).   Accordingly, the

 6   BIA did not abuse its discretion in denying Sherpa’s motion

 7   to remand.

 8       For the foregoing reasons, the petition for review is

 9   DISMISSED, in part, and DENIED, in part.      As we have

10   completed our review, any stay of removal that the Court

11   previously granted in this petition is VACATED, and any

12   pending motion for a stay of removal in this petition is

13   DENIED as moot.    Any pending request for oral argument in

14   this petition is DENIED in accordance with Federal Rule of

15   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

16   34.1(b).

17                                 FOR THE COURT:
18                                 Catherine O’Hagan Wolfe, Clerk
19




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