     18-1860
     Gurung v. Barr
                                                                           BIA
                                                                      Wright, IJ
                                                               A201 125 997/998
                           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 17th day of August, two thousand twenty.
 5
 6   PRESENT:
 7            GUIDO CALABRESI,
 8            DENNY CHIN,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   RAJU PUNCHO GURUNG, AKA
14   RAJUPUNCHO GURUNG, SUJAN GURUNG,
15            Petitioners,
16
17                    v.                                  18-1860
18                                                        NAC
19   WILLIAM P. BARR, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONERS:                 Gary J. Yerman, Esq., New York,
25                                    NY.
26
27   FOR RESPONDENT:                  Ethan P. Davis, Acting Assistant
28                                    Attorney General; Leslie McKay,
 1                             Senior Litigation Counsel;
 2                             Madeline Henley, Trial Attorney,
 3                             Office of Immigration Litigation,
 4                             United States Department of
 5                             Justice, Washington, DC.

 6       UPON DUE CONSIDERATION of this petition for review of a

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

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

 9   is DENIED.

10       Petitioners Raju Puncho Gurung and Sujan Gurung,

11   natives and citizens of Nepal, seek review of a May 25,

12   2018, decision of the BIA affirming a July 19, 2017,

13   decision of an Immigration Judge (“IJ”) denying Raju Puncho

14   Gurung’s application for asylum, withholding of removal,

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

16   In re Raju Puncho Gurung, Sujan Gurung, No. A 201 125

17   997/998 (B.I.A. May 25, 2018), aff’g No. A 201 125 997/998

18   (Immig. Ct. N.Y. City July 19, 2017).       We assume the

19   parties’ familiarity with the underlying facts and

20   procedural history.

21       Under the circumstances of this case, we have reviewed

22   both the IJ’s and BIA’s decisions “for the sake of

23   completeness.”   Wangchuck v. Dep’t of Homeland Sec., 448

24   F.3d 524, 528 (2d Cir. 2006).       The applicable standards of
                                     2
 1   review are well established.   See 8 U.S.C. § 1252(b)(4)(B);

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

 3   (reviewing factual findings for substantial evidence and

 4   questions of law and the application of law to undisputed

 5   facts de novo).

 6       To establish asylum eligibility, an applicant must show

 7   that he has suffered past persecution, or has a well-

 8   founded fear of future persecution, on account of race,

 9   religion, nationality, membership in a particular social

10   group, or political opinion.   See 8 U.S.C. § 1101(a)(42).

11   If the applicant is found to have suffered past

12   persecution, he is “presumed to have a well-founded fear of

13   future persecution on the basis of the original claim.”     8

14   C.F.R. § 1208.13(b)(1).

15   Past Persecution

16       The agency did not err in concluding that Gurung failed

17   to show that he suffered past persecution at the hands of

18   the Maoists.   “[P]ersecution is ‘an extreme concept that

19   does not include every sort of treatment our society

20   regards as offensive.’”   Mei Fun Wong v. Holder, 633 F.3d

21   64, 72 (2d Cir. 2011) (quoting Ai Feng Yuan v. U.S. Dep’t


                                    3
 1   of Justice, 416 F.3d 192, 198 (2d Cir. 2005)).    Persecution

 2   may “encompass[] a variety of forms of adverse treatment,

 3   including non-life-threatening violence and physical

 4   abuse,” but the harm must be sufficiently severe, rising

 5   above “mere harassment.”     Ivanishvili v. U.S. Dep’t of

 6   Justice, 433 F.3d 332, 341 (2d Cir. 2006) (internal

 7   quotation marks and brackets omitted).    “‘[T]he difference

 8   between harassment and persecution is necessarily one of

 9   degree,’ . . . [and] the degree must be assessed with

10   regard to the context in which the mistreatment occurs.”

11   Beskovic v. Gonzales, 467 F.3d 223, 226 (2d Cir. 2006)

12   (quoting Ivanishvili, 433 F.3d at 341).    In evaluating a

13   past persecution claim, the agency must consider the harm

14   suffered in the aggregate.    Poradisova v. Gonzales, 420

15   F.3d 70, 79–80 (2d Cir. 2005).

16       The agency did not err in finding that Gurung’s past

17   harm did not rise to the level of persecution because he

18   testified to only one incident of physical harm and

19   provided little detail regarding the attack or his

20   injuries.   While Gurung testified that Maoists threw rocks

21   at his group of protestors in 2006, he escaped without


                                     4
 1   harm.   The only physical harm he suffered was in December

 2   2009, when he was pushed and kicked.   He provided little

 3   detail and appears to have sustained only a minor injury.

 4   Accordingly, the agency did not err in concluding that

 5   these incidents did not rise to the level of persecution.

 6   See Jian Qiu Liu v. Holder, 632 F.3d 820, 822 (2d Cir.

 7   2011) (finding no error in agency’s decision that harm did

 8   not rise to the level of persecution where applicant,

 9   “prior to his arrest and detention[,] . . . suffered only

10   minor bruising from an altercation with family planning

11   officials, which required no formal medical attention and

12   had no lasting physical effect”).

13       Moreover, the Maoists’ threats against Gurung’s parents

14   do not constitute past persecution of Gurung.   See Tao

15   Jiang v. Gonzales, 500 F.3d 137, 141 (2d Cir. 2007) (“As a

16   general principle, an asylum applicant cannot claim past

17   persecution based solely on harm that was inflicted on a

18   family member on account of that family member’s political

19   opinion or other protected characteristic.”).   And a letter

20   threatening Gurung that was delivered to his parent’s home

21   was not a sufficiently imminent threat so as to constitute


                                   5
 1   past persecution.   See Scarlett v. Barr, 957 F.3d 316, 328

 2   (2d Cir. 2020) (“[U]nfulfilled threats alone generally do

 3   not rise to the level of persecution.       To warrant a

 4   different conclusion, an applicant must adduce objective

 5   evidence that the threat was so imminent or concrete, or so

 6   menacing as itself to cause actual suffering or harm.”

 7   (internal citations and quotation marks omitted)).         Given

 8   the single, minor incident of physical harm and the one

 9   threatening letter, the agency did not err in determining

10   that the cumulative harm did not rise to the level of

11   persecution.   See Mei Fun Wong, 633 F.3d at 72.

12   Fear of Future Persecution

13       Absent a finding of past persecution, an applicant may

14   establish asylum eligibility based on a fear of future

15   persecution, but the applicant must show that “he

16   subjectively fears persecution and establish that his fear

17   is objectively reasonable.”     Ramsameachire v. Ashcroft, 357

18   F.3d 169, 178 (2d Cir. 2004).       Although a fear may be

19   objectively reasonable “even if there is only a slight,

20   though discernible, chance of persecution,” Diallo v. INS,

21   232 F.3d 279, 284 (2d Cir. 2000), a fear is not objectively


                                     6
 1   reasonable if it lacks “solid support” in the record and is

 2   merely “speculative at best,” Jian Xing Huang v. U.S. INS,

 3   421 F.3d 125, 129 (2d Cir. 2005).    The agency did not err

 4   in determining that Gurung did not have an objectively

 5   reasonable fear of future persecution.

 6       First, there is minimal record support for his claim

 7   that Maoists remain interested in him.   A 2016 letter from

 8   a leader of a district development society states that

 9   Maoists still want revenge against Gurung, but the letter

10   does not provide any basis for that information.

11   Additionally, Gurung did not testify that the Maoists have

12   looked for him since January 2010.    And he conceded that he

13   has not been politically active in the United States.

14       Second, the fact that the Maoists have not followed

15   through on threats against Gurung’s family despite his

16   father’s alleged support for the monarchy weighs against a

17   finding that Gurung has an objectively reasonable fear of

18   future persecution.   See Melgar de Torres v. Reno, 191 F.3d

19   307, 313 (2d Cir. 1999) (applicant’s claimed fear of future

20   persecution is weakened when similarly situated family

21   members continue to live unharmed in petitioner’s native


                                   7
 1   country).

 2       Finally, there is limited support for Gurung’s claim

 3   that some Maoists continue to persecute people who do not

 4   support their political position.    Gurung points to a 2010

 5   U.S. State Department Report identifying a Maoist attack on

 6   a district president, but this one incident from 2009 that

 7   involved a district president from a different political

 8   party does not establish that Gurung would be singled out

 9   for his pro-monarchy political opinion.    See 8 C.F.R.

10   § 1208.13(b)(2)(iii).    While this 2010 report notes reports

11   of incidents of torture by Maoists, it does not identify

12   the type of victims.    And although a later report from 2013

13   states that a breakaway faction of the Maoist party

14   committed acts of violence, it is insufficient to show that

15   Gurung would be singled out for persecution because it does

16   not detail the frequency of the violence or reflect that

17   Maoists are targeting their political opponents.    Several

18   additional sources address issues related to holding

19   Maoists accountable for violence during the civil war but

20   do not discuss ongoing Maoist violence.    Accordingly,

21   Gurung’s country conditions evidence does not support his


                                    8
 1   claim that Maoists would single him out for persecution.

 2   See Jian Xing Huang, 421 F.3d at 129.

 3       In sum, the agency did not err in determining that

 4   Gurung failed to state a well-founded fear of future

 5   persecution because he did not establish that Maoists

 6   continue to be interested in him, his family has remained

 7   unharmed in Nepal, and the country conditions evidence does

 8   not reflect that similarly-situated individuals are singled

 9   out for harm.   See id.   Gurung’s failure to meet his burden

10   for asylum is also dispositive of withholding of removal

11   and CAT protection, which carry a higher burden.    See Lecaj

12   v. Holder, 616 F.3d 111, 119 (2d Cir. 2010).

13       For the foregoing reasons, the petition for review is

14   DENIED.   All pending motions and applications are DENIED

15   and stays VACATED.

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




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