         11-5202
         Thieng v. Lynch
                                                                                            BIA
                                                                                      Straus, I.J.
                                                                                   A093 338 408
                                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 10th day of September, two thousand fifteen.
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                ROSEMARY S. POOLER,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _____________________________________
12
13       RAJ BAHADUR THIENG,
14                Petitioner,
15
16                         v.                                      11-5202
17                                                                 NAC
18       LORETTA E. LYNCH,1 UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:                Khagendra Gharti-Chhetry, New York, New
24                                      York.
25
26


                 1
               Loretta E. Lynch is automatically substituted as the
         respondent in this case pursuant to Federal Rule of
         Appellate Procedure 43(c)(2).
 1   FOR RESPONDENT:         Stuart F. Delery, Acting Assistant
 2                           Attorney General; Holly M. Smith,
 3                           Senior Litigation Counsel; Don G.
 4                           Scroggin, Trial Attorney, Office of
 5                           Immigration Litigation, United States
 6                           Department of Justice, Washington, D.C.
 7
 8       UPON DUE CONSIDERATION of this petition for review of a

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

10   ORDERED, ADJUDGED, AND DECREED that the petition for review is

11   GRANTED in part and DENIED in part.

12       Petitioner Raj Bahadur Thieng, a native and citizen of

13   Nepal, seeks review of a November 23, 2011 decision of the BIA

14   affirming the April 15, 2010 decision of Immigration Judge

15   (“IJ”) denying his application for asylum, withholding of

16   removal, and relief under the Convention Against Torture

17   (“CAT”).   In re Raj Bahadur Thieng, No. A093 338 408 (B.I.A.

18   November 23, 2011), aff’g No. A093 338 408 (Immig. Ct.

19   Hartford Apr. 15, 2010).   We assume the parties’ familiarity

20   with the underlying facts and procedural history of the case.

21       Under the circumstances of this case, we have reviewed

22   the IJ’s decision as the final agency determination.     See

23   Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008).     The

24   applicable standards of review are well established.     See

25   8 U.S.C. § 1252(b)(4)(B); Aliyev v. Mukasey, 549 F.3d 111, 115

26   (2d Cir. 2008).

                                    2
 1       The agency reasonably concluded that the mistreatment

 2   Thieng experienced in Nepal did not rise to the level of

 3   persecution.   The BIA has defined persecution as a “threat to

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

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

 6   Matter of Acosta, 19 I. & N. Dec. 211, 222 (B.I.A. 1985),

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

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

 9   U.S. Dep’t of Justice, 433 F.3d 332, 342 (2d Cir. 2006).

10   Although the visit by Youth Communists League (“YCL”) members

11   to Thieng’s cyber café likely interrupted his business and

12   disturbed him, this incident does not rise above “mere

13   harassment,” and, thus, does not constitute persecution.

14   Ivanishvili, 433 F.3d at 341; see Mei Fun Wong v. Holder, 633

15   F.3d 64, 72 (2d Cir. 2011) (“We have emphasized that

16   persecution is an extreme concept that does not include every

17   sort of treatment our society regards as offensive.”)

18   (internal quotation marks omitted).   Further, although Thieng

19   testified that he received threatening phone calls,

20   unfulfilled threats do not constitute persecution.     See Gui Ci

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

22



                                    3
 1       However, substantial evidence does not support the

 2   agency’s conclusion that Thieng failed to demonstrate that he

 3   was targeted by the YCL on account of his political opinion.

 4   Although Thieng testified that, as a member of the Nepali

 5   Congress, he had participated mostly in non-political social

 6   and community assistance activities, he also offered testimony

 7   that the Maoists targeted him because he had declined to pay

 8   them money, or to support them.   Further, in his decision, the

 9   IJ incorrectly stated that Thieng did not discuss politics

10   with the YCL members who came to his café in March 2007, as

11   the record contains evidence that Thieng and the YCL members

12   did engage in a political discussion at his café.   Given that

13   this evidence reflects a direct link between Thieng’s decision

14   not to support the Maoists and the threatening phone calls, it

15   compels the conclusion that Thieng was subject to mistreatment

16   on the basis of an actual or imputed political opinion.     See

17   Ahmed v. Ashcroft, 286 F.3d 611, 612 (2d Cir. 2002).   Despite

18   this error, because the mistreatment experienced by Thieng in

19   Nepal did not rise to the level of persecution, the agency

20   reasonably concluded that Thieng failed to demonstrate past

21   persecution.

22



                                   4
 1       However, we grant Theing’s petition for review with

 2   respect to his challenge to the agency’s denial of his asylum

 3   and withholding of removal claims.     The IJ relied on the

 4   erroneous conclusion that the YCL did not target Thieng on

 5   account of a protected ground to determine that he lacked a

 6   well-founded fear of future persecution but explicitly stated

 7   that “there is probably enough evidence to show that [Thieng]

 8   has a well-founded fear” of future persecution. A.R. 38.      In

 9   these circumstances we cannot state with confidence that the

10   agency would have made the same decision in the absence of the

11   error.   See Xiao Ji Chen v. U.S Dep't of Justice, 434 F.3d

12   144, 159 (2d Cir. 2006); Cao He Lin v. U.S. Dep't of Justice,

13   428 F.3d 391, 401–02 (2d Cir. 2005).     Thus, we remand for the

14   agency to determine whether that probability of harm is

15   sufficient to make Thieng eligible for asylum or withholding

16   of removal.   However, given the IJ’s separate finding that

17   Thieng failed to produce sufficient evidence to support the

18   requisite likelihood that he would be subject to torture upon

19   return to Nepal, we decline to remand Thieng’s CAT claim.

20       For the foregoing reasons, the petition for review is

21   GRANTED in part and DENIED in part, and the case is REMANDED

22   to the BIA for further proceedings consistent with this order.


                                    5
1   As we have completed our review, the stay of removal that the

2   Court previously granted in this petition is VACATED.

3

4                              FOR THE COURT:
5                              Catherine O’Hagan Wolfe, Clerk

6




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