         13-1304
         Sherpa v. Lynch
                                                                                       BIA
                                                                                Vomacka, IJ
                                                                               A089 198 143
                            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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 28th day of August, two thousand fifteen.
 5
 6       PRESENT:
 7                ROSEMARY S. POOLER,
 8                BARRINGTON D. PARKER,
 9                DEBRA ANN LIVINGSTON,
10                     Circuit Judges.
11       _____________________________________
12
13       DAKI SHERPA,
14                Petitioner,
15
16                         v.                                   13-1304
17                                                              NAC
18       LORETTA E. LYNCH, UNITED STATES
19       ATTORNEY GENERAL,*
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Julie Mullaney, Mount Kisco, NY.
24


                      *
                  Pursuant to Federal Rule of Appellate Procedure
             43(c)(2), Attorney General Loretta E. Lynch is
             automatically substituted for former Attorney General
             Eric H. Holder, Jr., as the Respondent in this case.
 1   FOR RESPONDENT:        Stuart F. Delery, Assistant Attorney
 2                          General; Terri J. Scadron, Assistant
 3                          Director; Aaron D. Nelson, Trial
 4                          Attorney, Office of Immigration
 5                          Litigation, United States Department
 6                          of Justice, Washington, D.C.

 7       UPON DUE CONSIDERATION of this petition for review of a

 8   decision of the Board of Immigration Appeals (“BIA”), it is

 9   hereby ORDERED, ADJUDGED, AND DECREED that the petition for

10   review is DENIED.

11       Daki Sherpa, a native and citizen of Nepal, seeks

12   review of a March 21, 2013, decision of the BIA affirming an

13   Immigration Judge’s (“IJ”) January 6, 2011, denial of

14   asylum, withholding of removal, and relief under the

15   Convention Against Torture (“CAT”).    In re Daki Sherpa, No.

16   A089 198 143 (B.I.A. Mar. 21, 2013), aff’g No. A089 198 143

17   (Immig. Ct. N.Y. City Jan. 6, 2011).   We assume the parties’

18   familiarity with the underlying facts and procedural history

19   of this case.

20       Because the BIA did not affirm the IJ’s adverse

21   credibility finding, we review the IJ’s decision as modified

22   and supplemented by the BIA.   See Xue Hong Yang v. U.S.

23   Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen

24   v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).   The

25   applicable standards of review are well-established.    See

                                    2
 1   8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder,

 2   562 F.3d 510, 513 (2d Cir. 2009).

 3       As the government argues, Sherpa failed to exhaust her

 4   claim of past persecution, her eligibility for CAT relief,

 5   and her assertion of a “pattern or practice” of persecution

 6   by Maoists in Nepal.   Nor does she adequately raise her past

 7   persecution or CAT claims in her brief.   Therefore, our

 8   review is limited to Sherpa’s claim that she has a well-

 9   founded fear of future persecution by Maoists.    See Lin

10   Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 124 (2d Cir.

11   2007); Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir. 2006).

12       Sherpa may establish a well-founded fear of future

13   persecution by showing that she will be singled out for

14   persecution.   8 C.F.R. § 1208.13(b)(2)(C)(iii) (asylum).     To

15   meet her burden, Sherpa must show a subjective fear of

16   future persecution and that her fear is objectively

17   reasonable.    See Ramsameachire v. Ashcroft, 357 F.3d 169,

18   178 (2d Cir. 2004).

19       Substantial evidence supports the agency’s ruling that

20   Sherpa did not establish an objectively reasonable fear of

21   future persecution because she was not harmed while she

22   lived in Nepal and her husband has remained unharmed for


                                    3
 1   nine years.    Sherpa acknowledges in her brief that her

 2   family has not been harmed.    The ability of similarly

 3   situated family members to avoid harm over a significant

 4   time period “cuts against” a finding of a well-founded fear.

 5   See Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir.

 6   1999).    Sherpa’s testimony established that the Maoists had

 7   sought to recruit both her and her husband.     Thus, she and

 8   her husband were similarly situated and his lack of harm in

 9   Nepal was a proper factor for the agency to consider in

10   determining that she did not establish an objectively

11   reasonable fear of future persecution.    Id.

12       Sherpa also argues that the BIA failed to consider

13   country reports, which established that Maoists regularly

14   persecute their enemies.    We presume that the agency “has

15   taken into account all of the evidence before [it], unless

16   the record compellingly suggests otherwise.”     Xiao Ji Chen

17   v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d Cir.

18   2006).    Sherpa has not cited to any specific country

19   conditions evidence to support her allegations.     Moreover,

20   even if the country reports contain the information Sherpa

21   attributes to them, they do not undermine the agency’s

22   ruling.    Because Sherpa’s claim of future persecution is

23   premised on being singled out for persecution--as opposed to

                                    4
 1   a pattern or practice of persecution--the Maoists’ general

 2   persecution of their “enemies” does not establish that

 3   Sherpa, individually, will be targeted in the future for

 4   harm rising to the level of persecution.

 5       Given Sherpa’s failure to show a well-founded fear of

 6   persecution as needed for asylum, she was necessarily unable

 7   to meet the higher standard for withholding of removal.    See

 8   Lecaj v. Holder, 616 F.3d 111, 119-20 (2d Cir. 2010).

 9       For the foregoing reasons, the petition for review is

10   DENIED.

11                              FOR THE COURT:
12                              Catherine O’Hagan Wolfe, Clerk
13
14




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