     17-3517
     Gurung v. Barr
                                                                                   BIA
                                                                             Loprest, IJ
                                                                           A205 894 859

                           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 TO 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
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 8th day of August, two thousand nineteen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            RAYMOND J. LOHIER, JR.,
 9            RICHARD J. SULLIVAN,
10                 Circuit Judges.
11   _____________________________________
12
13   BAL BAHADUR GURUNG,
14
15                          Petitioner,
16
17                    v.                                         17-3517
18                                                               NAC
19   WILLIAM P. BARR, UNITED STATES
20   ATTORNEY GENERAL,
21
22                 Respondent.
23   _____________________________________
24
25   FOR PETITIONER:                      Gary J. Yerman, New York, NY.
26
27   FOR RESPONDENT:                      Chad A. Readler, Acting Assistant
28                                        Attorney General; Greg D. Mack,
1                                 Senior Litigation Counsel; Lisa M.
2                                 Damiano, Trial Attorney, Office of
3                                 Immigration Litigation, United
4                                 States Department of Justice,
5                                 Washington, DC.
6
7           UPON DUE CONSIDERATION of this petition for review of a

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

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

10   is DENIED.

11          Petitioner Bal Bahadur Gurung, a native and citizen of

12   Nepal, seeks review of an October 6, 2017, decision of the

13   BIA affirming a March 2, 2017, decision of an Immigration

14   Judge (“IJ”) denying asylum, withholding of removal, and

15   relief under the Convention Against Torture (“CAT”).         Gurung,

16   No. A205 894 859 (B.I.A. Oct. 6, 2017), aff’g No. A205 894

17   859 (Immig. Ct. N.Y. City Mar. 2, 2017).            We assume the

18   parties’ familiarity with the underlying facts and procedural

19   history in this case.

20          Under the circumstances of this case, we have considered

21   both the IJ’s and the BIA’s decisions.            See Yan Chen v.

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

23   of     review   are   well    established.        See    8    U.S.C.

24   § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d

25   Cir.    2009)   (reviewing   factual   findings   for   substantial

                                      2
1    evidence and questions of law and application of law to fact

2    de novo).

3           Even assuming Gurung’s credibility, we find no error in

4    the agency’s alternative conclusion that he did not establish

5    past    persecution        or       a   well-founded      fear     of    future

6    persecution.

7           The BIA has defined persecution as “a threat to the life

8    or freedom of, or the infliction of suffering or harm upon,

9    those who differ in a way regarded as offensive.”                        Acosta,

10   19 I. & N. Dec. 211, 222 (BIA 1985).                    A past persecution

11   claim can be based on harm other than threats to life or

12   freedom,       including        “non-life-threatening           violence     and

13   physical abuse.”        Beskovic v. Gonzales, 467 F.3d 223, 226 n.3

14   (2d Cir. 2006).         In order to constitute persecution, the

15   alleged harm must be sufficiently severe, rising above “mere

16   harassment.”      Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d

17   332,    341    (2d    Cir.      2006).       “[T]he     difference       between

18   harassment and persecution is necessarily one of degree that

19   must    be    decided   on      a   case-by-case      basis.”      Id.      “The

20   cumulative effect of the applicant’s experience must be taken

21   into account” in deciding whether the applicant has suffered

22   persecution.         Poradisova v. Gonzales, 420 F.3d 70, 80 (2d

                                              3
1    Cir. 2005) (quotation marks omitted).

2         The agency did not err in finding that the single beating

3    Gurung endured and subsequent telephonic and written threats

4    he   received      did    not   cumulatively       rise    to   the    level   of

5    persecution.       A beating is not “persecution per se” and the

6    agency    must     consider     the    context,    including     whether       the

7    beating occurred during an arrest or detention, the resulting

8    injuries, and the need for medical attention.                    Jian Qiu Liu

9    v.   Holder,     632     F.3d   820,   822   (2d    Cir.    2011);     see   also

10   Beskovic, 467 F.3d at 226 (“[A] ‘minor beating’ . . . may

11   rise to the level of persecution if it occurred in the context

12   of   an   arrest    or    detention     on   the    basis   of   a     protected

13   ground.”).       While Gurung went to the hospital, he did not

14   allege severe injuries, but stated only that he received

15   ointment for his injuries and was released the same day.                       And

16   the other documented incidents were isolated: the beating was

17   in June 2012, a threatening letter came more than four months

18   later in November 2012 and contained no specific threat of

19   physical harm, and Gurung did not describe the frequency or

20   content of the telephonic threats.                Such unfulfilled threats

21   generally will not constitute past persecution.                       See Gui Ci

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

                                             4
1    Accordingly, the agency did not err in concluding that the

2    cumulative harm Gurung experienced did not rise to the level

3    of persecution.       See Poradisova, 420 F.3d at 80; Jian Qiu

4    Liu, 632 F.3d at 822.

5        Absent     past    persecution,     Gurung   had   the     burden   of

6    establishing    an    “objectively     reasonable”     fear    of   future

7    persecution.    Ramsameachire v. Ashcroft, 357 F.3d 169, 178

8    (2d Cir. 2004).       A fear may be objectively reasonable “even

9    if there is only a slight, though discernible, chance of

10   persecution.”     Diallo v. INS, 232 F.3d 279, 284 (2d Cir.

11   2000).   But a fear is not objectively reasonable if it lacks

12   “solid support” in the record and is merely “speculative at

13   best.”   Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir.

14   2005).

15       Gurung’s    evidence    did   not    establish     an     objectively

16   reasonable threat.       First, while he alleged that his uncle

17   was involved in the same political party, his uncle remained

18   unharmed in Nepal.       See Melgar de Torres v. Reno, 191 F.3d

19   307, 313 (2d Cir. 1999) (finding future fear diminished when

20   similarly situated individuals are able to live unharmed in

21   asylum   applicant’s     native   country).      Moreover,       although

22   Gurung’s uncle’s letters stated that Maoists continued to ask

                                        5
1    about Gurung, the letters lacked any detail about when or how

2    such inquiries were made.

3        Second, given the Maoists’ 2013 electoral defeat and the

4    absence of any specific allegations that members of the

5    Rastriya Prajatantra Party had been harmed following the 2013

6    election, Gurung’s fear of future harm is “speculative at

7    best.”    Jian Xing Huang, 421 F.3d at 129.

8        For the foregoing reasons, the petition for review is

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

10   that the Court previously granted in this petition is VACATED,

11   and any pending motion for a stay of removal in this petition

12   is DISMISSED as moot.    Any pending request for oral argument

13   in this petition is DENIED in accordance with Federal Rule of

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

15   34.1(b).

16
17                                 FOR THE COURT:
18                                 Catherine O’Hagan Wolfe
19                                 Clerk of Court
20




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