         12-1953
         Khatri v. Holder
                                                                                       BIA
                                                                                Vomacka, IJ
                                                                               A087 446 649
                             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 20th day of August, two thousand thirteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                RICHARD C. WESLEY,
 9                DEBRA ANN LIVINGSTON,
10                     Circuit Judges.
11       _____________________________________
12
13       HARI BAHADUR KHATRI,
14                Petitioner,
15
16                          v.                                  12-1953
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Jason A. Nielson, New York, NY.
24
25       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
26                                     Attorney General; Anthony C. Payne,
27                                     Senior Litigation Counsel; Jesse M.
28                                     Bless, Trial Attorney, Office of
29                                     Immigration Litigation, United
30                                     States Department of Justice,
31                                     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 DENIED.

 5       Hari Bahadur Khatri, a native and citizen of Nepal,

 6   seeks review of an April 26, 2012, decision of the BIA

 7   affirming the June 23, 2010, decision of Immigration Judge

 8   (“IJ”) Alan A. Vomacka, which denied his application for

 9   asylum, withholding of removal, and relief under the

10   Convention Against Torture (“CAT”).    In re Hari Bahadur

11   Khatri, No. A087 446 649 (B.I.A. Apr. 26, 2012), aff’g No.

12   A087 446 649 (Immig. Ct. N.Y. City June 23, 2010).     We

13   assume the parties’ familiarity with the underlying facts

14   and procedural history in this case.

15       Under the circumstances of this case, we have reviewed

16   the decision of the IJ as supplemented by the BIA.     See Yan

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

18   applicable standards of review are well-established.        See

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

20

21

22



                                  2
 1   I.   Asylum

 2        We retain jurisdiction to review the pretermission of

 3   Khatri’s asylum application only to the extent he raises a

 4   colorable constitutional claim or question of law.       See

 5   8 U.S.C. § 1252(a)(2)(C),(D).       Although Khatri’s argument

 6   that the IJ ignored evidence in finding that the rise of

 7   Maoists in the Nepalese government did not constitute

 8   changed circumstances, raises a question of law, see Xiao Ji

 9   Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 (2d Cir.

10   2006); Gui Yin Liu v. INS, 508 F.3d 716, 720 (2d Cir. 2007),

11   his argument lacks merit.

12        Khatri testified that he intended to return to Nepal

13   following the election of Maoists as the majority party in

14   the parliament in 2008 because the November 2006 peace

15   agreement between the Nepalese government and the Maoists

16   had signaled an easing of tension and Maoist-led violence;

17   he filed for asylum only after he realized that the Maoists

18   had continued to terrorize citizens.       However, the 2009 U.S.

19   State Department Human Rights Report, which notes that

20   Maoists obtained a plurality in the Nepalese parliament in

21   April 2008, also states that the violence in the hands of

22   Maoists that had preexisted the 2006 peace agreement


                                     3
 1   continued thereafter.     Khatri also testified that the

 2   Maoists had harassed him both before and after the signing

 3   of the peace agreement.     Because the agency did not ignore

 4   any evidence in finding that the substantial basis for

 5   Khatri’s argument of changed circumstances—namely,

 6   continued violence in the wake of the peace

 7   agreement—occurred prior to the expiration of the one-year

 8   filing deadline in May 2008, Khatri has not demonstrated any

 9   reviewable error in the agency’s conclusion that he failed

10   to establish a change in circumstances excusing his delay in

11   filing his asylum application.      See 8 C.F.R. § 1208.4(a)(4).

12       Moreover, even assuming changed circumstances as of

13   April 2008, the agency did not err in concluding that

14   Khatri’s eight-month delay in filing for asylum after the

15   alleged change in circumstances is presumptively

16   unreasonable.   See id. (requiring that an application be

17   filed within a reasonable time after a change in

18   circumstances); 65 Fed. Reg. 76121-01 at 76123-24 (providing

19   that “waiting six months or longer after expiration or

20   termination of status [to apply for asylum] would not be

21   considered reasonable”).     And, to the extent Khatri

22   challenges the IJ’s further finding that the elections did


                                     4
 1   little by way of changing the Maoists’ activities, his

 2   argument essentially challenges the IJ’s factual findings

 3   and does not raise a colorable constitutional claim or

 4   question of law over which we retain jurisdiction.      See Xiao

 5   Ji Chen, 471 F.3d at 328-29.

 6   II. Withholding of Removal and CAT Relief

 7       The agency also reasonably determined that Khatri

 8   failed to establish that he was or would be persecuted on

 9   account of his membership in the Nepali Congress Party

10   (“NCP”) or any other protected ground.   To establish

11   eligibility for withholding of removal, an applicant must

12   demonstrate that the persecution he suffered or fears was or

13   would be on account of a protected ground, which includes

14   political opinion, see 8 U.S.C. § 1231(b)(3)(A), and that

15   his protected status, and not some other factor, is a

16   central reason why he was or will be targeted for

17   persecution, see Rodas Castro v. Holder, 597 F.3d 93, 103

18   (2d Cir. 2010).

19        Khatri’s claim for relief centered on repeated demands

20   by Maoists that he abandon the NCP and fund their cause and

21   the allegation that following his failure to comply, the

22   Maoists abducted and beat him and also abducted his son.

23   Although an individual’s actual or imputed political opinion
                                    5
 1   may be a protected ground, see 8 U.S.C. § 1231(b)(3)(A),

 2   recruitment efforts and extortion attempts do not inherently

 3   constitute persecution on account of one of the protected

 4   grounds, see INS v. Elias-Zacarias, 502 U.S. 478, 81 (1992)

 5   (finding that forced recruitment of an individual by

 6   guerilla forces is not per se persecution on account of a

 7   protected ground); Ucelo-Gomez v. Mukasey, 509 F.3d 70, 74

 8   (2d Cir. 2007) (holding that harm purely motivated by wealth

 9   is not persecution). The IJ reasonably concluded that

10   Khatri’s testimony did not support his assertion that the

11   Maoists targeted him on account of a protected ground—his

12   political membership—given substantial evidence of the

13   financial motives for the attacks.   See Elias-Zacarias, 502

14   U.S. at 81; Ucelo-Gomez, 509 F.3d at 74.

15       The IJ also reasonably found that Khatri failed to

16   establish that the Nepalese government was unwilling or

17   unable to protect him given his testimony that he never

18   notified police or other government officials when either he

19   or his son was abducted, and that the army, in fact, aided

20   in his son’s recovery when alerted by villagers of the

21   abduction.   See Rizal v. Gonzales, 442 F.3d 84, 92 (2d Cir.

22   2006) (defining persecution as harm inflicted by a

23   governmental actor or independent actors who the government
                                   6
 1   is unwilling or unable to control).    Accordingly, the IJ did

 2   not err in denying withholding of removal.    See 8 C.F.R.

 3   § 1208.16(b)(1).

 4       Given Khatri’s testimony that he did not seek aid from

 5   Nepalese police or government officials when threatened or

 6   abducted by Maoists, and the police involvement in the

 7   rescue of his son from Maoists, the IJ also did not err in

 8   denying CAT relief.    See Khouzam v. Ashcroft, 361 F.3d 161,

 9   171 (2d Cir. 2004) (noting that applicant for CAT relief

10   must show that torture would be perpetrated with the

11   government’s consent or acquiescence (including the concept

12   of wilful blindness)).1

13       For the foregoing reasons, the petition for review is

14   DENIED.    As we have completed our review, any stay of

15   removal that the Court previously granted in this petition

16   is VACATED, and any pending motion for a stay of removal in

17   this petition is DISMISSED as moot.    Any pending request for


            1
             Although the IJ may have erred by failing to give
       sufficient consideration to Khatri’s assertion that his
       assault at the hands of Maoists while on a “forced” walk
       constituted torture, remand would be futile given the
       alternative grounds for denying CAT relief. See Alam v.
       Gonzales, 438 F.3d 184, 187-88 (2d Cir. 2006) (“[W]e are
       not required to remand where there is no realistic
       possibility that, absent the errors, the IJ or BIA would
       have reached a different conclusion.” (internal citation
       and quotation marks omitted)).
                                  7
1   oral argument in this petition is DENIED in accordance with

2   Federal Rule of Appellate Procedure 34(a)(2), and Second

3   Circuit Local Rule 34.1(b).

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




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