    11-2705-ag                                                                     BIA
    Lama v. Holder                                                           Abrams, IJ
                                                                          A089 254 185



                      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.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 19th day of July, two thousand twelve.

    PRESENT:
             ROBERT A. KATZMANN,
             DEBRA ANN LIVINGSTON,
             SUSAN L. CARNEY,
                  Circuit Judges.
    _______________________________________

    SANGE LAMA,
             Petitioner,

                     v.                                    11-2705-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _______________________________________

    FOR PETITIONER:         Dalbir Singh, New York, NY.

    FOR RESPONDENT:         Tony West, Assistant Attorney General;
                            Anh-Thu P. Mai-Windle, Senior Litigation
                            Counsel; James A. Hurley, Attorney,
                            Office of Immigration Litigation, United
                            States Department of Justice, Washington,
                            D.C.
    UPON DUE CONSIDERATION of this petition for review of a

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

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

is DENIED.

    Petitioner Sange Lama, a native and citizen of Nepal,

seeks review of a July 7, 2011 order of the BIA affirming

the June 5, 2009 decision of Immigration Judge (“IJ”) Steven

R. Abrams, denying his application for asylum, withholding

of removal, and relief under the Convention Against Torture

(“CAT”).     In re Sange Lama, No. A089 254 185 (B.I.A. July 7,

2011), aff’g No. A089 254 185 (Immig. Ct. N.Y. City June 5,

2009).     We assume the parties’ familiarity with the

underlying facts and procedural history in this case.

    Under the circumstances of this case, we have reviewed

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

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

applicable standards of review are well-established.     See 8

U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,

513 (2d Cir. 2009).

    Lama argues that he suffered past persecution at the

hands of Maoists in Nepal who threatened to kill him when he

refused to join and contribute money to their party and

renounce his membership in the Nepali Congress Party

                                2
(“NCP”).   However, as Lama testified, the Maoists did not

physically harm him and he did not suffer financially from

their demands because he did not actually give them money.

The agency therefore reasonably found that the Maoists’

unfulfilled threats did not constitute persecution.     See

Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 342 (2d

Cir. 2006) (holding that harm must be sufficiently severe,

rising above “mere harassment,” to constitute persecution);

See Gui Ci Pan v. U.S. Attorney Gen., 449 F.3d 408, 412 (2d

Cir. 2006) (noting that courts have “rejected [persecution]

claims involving ‘unfulfilled’ threats”).

    The agency also reasonably found that Lama failed to

establish that the Maoists targeted him based on his

political opinion or any other protected ground.     Because

the REAL ID Act applies to Lama’s application, he is

required to show that his race, religion, nationality,

political opinion, or particular social group is “one

central reason for persecuting [him].”   See 8 U.S.C.

§§ 1101(a)(42), 1158(b)(1)(B)(i).   An applicant can

establish past persecution or a well-founded fear of

persecution on account of his political opinion by

demonstrating that the persecutor’s motive to persecute


                              3
arises from a political belief he perceives the applicant to

hold, whether correctly or incorrectly attributed.      See Chun

Gao v. Gonzales, 424 F.3d 122, 129 (2d Cir. 2005) (“[A]n

imputed political opinion, whether correctly or incorrectly

attributed, can constitute a ground of political persecution

within the meaning of the [Immigration and Nationality]

Act.”) (internal quotation marks omitted).     While Lama

asserts that the Maoists targeted him because he opposed

them politically as a member of the NCP, he testified that

the Maoists’ primary objective was to collect money, that

they increased their demand for money when they found out he

owned more than one business, and that he played only a

minor role in the NCP.     Thus, the agency reasonably found

that the Maoists targeted him as a business owner and not

because of his political opinion.

    Lama also asserts that he established a well-founded

fear of persecution by Maoists based on his political

opposition.   However, as discussed above, the agency

reasonably found that the Maoists did not target Lama based

on his political opinion, but based on his potential income

as a business owner.     Furthermore, the background materials

Lama submitted indicate that Maoists who, according to the


                                4
2008 State Department Human Rights Report and 2007 State

Department Country Report, continued to foster violence in

Nepal through the “arbitrary and unlawful use of lethal

force” did not target any particular group of people.

Although various articles Lama submitted indicate that the

Maoists attacked NCP cadres and high-ranking officials, the

agency reasonably found that Lama’s minimal participation in

the NCP would not expose him to such attacks.   Given the

lack of evidence demonstrating that Lama would be targeted

by Maoists, the agency reasonably found that he failed to

establish a well-founded fear of persecution.   See Melgar de

Torres v. Reno, 191 F.3d 307, 314 n.3 (2d Cir. 1999)

(finding that general civil strife does not establish a

well-founded fear of persecution).

    Because Lama was unable to show the objective

likelihood of persecution needed to make out an asylum

claim, he was necessarily unable to meet the higher standard

required to succeed on a claim for withholding of removal.

See Paul v. Gonzales, 444 F.3d 148, 155-56 (2d Cir. 2006)

(“It is well-settled that the burden of proof for a

withholding of removal claim is higher than the burden of

proof for an asylum claim.”).

    Furthermore, contrary to Lama’s assertion, the agency
                                5
reasonably found that he failed to establish that he was

likely to be tortured in Nepal.    Although Lama alleged that

taxicab drivers beat him when he began arguing with one

driver, he testified that the police intervened during the

fight, took him to the hospital, and investigated the

matter.   While Lama claims that the police never prosecuted

the drivers who assaulted him, the agency was nonetheless

entitled to conclude that Lama had not demonstrated that

“government officials . . . breach[ed] their legal

responsibility to prevent [torture].”    See Khouzam v.

Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004) (concluding that

“torture requires . . . that government officials know of or

remain willfully blind to an act and thereafter breach their

legal responsibility to prevent it”).    Thus, even assuming

that this single incident amounted to torture, the agency

reasonably determined that Lama failed to establish

eligibility for CAT relief.

    For the foregoing reasons, the petition for review is

DENIED.   As we have completed our review, the pending motion

for a stay of removal in this petition is DENIED as moot.

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




                               6
