     16-284
     Thapachhetri v. Sessions
                                                                                        BIA
                                                                                   Straus, IJ
                                                                               A206 233 429

                                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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   16th day of May, two thousand seventeen.
 5
 6   PRESENT:
 7            JON O. NEWMAN,
 8            JOSÉ A. CABRANES,
 9            GERARD E. LYNCH,
10                 Circuit Judges.
11   _____________________________________
12
13   RUDRA NARSHING THAPACHHETRI, AKA
14   RUDRA NARSHING THAPACHAETRI,
15            Petitioner,
16
17                      v.                                           16-284
18                                                                   NAC
19   JEFFERSON B. SESSIONS III, UNITED
20   STATES ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                       Khaghendra Gharti-Chhetry, Chhetry
25                                         & Associates, P.C., New York, NY.
26
27   FOR RESPONDENT:                       Benjamin C. Mizer, Principal Deputy
28                                         Assistant Attorney General; Kiley
29                                         Kane, Senior Litigation Counsel;
30                                         Sergio Sarkany, Trial Attorney,
31                                         Office of Immigration Litigation,
32                                         United States Department of Justice,
33                                         Washington, DC.
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 is

4    DENIED.

5           Petitioner Rudra Narshing Thapachhetri, a native and

6    citizen of Nepal, seeks review of a December 31, 2015, decision

7    of the BIA, affirming a June 16, 2014, decision of an Immigration

8    Judge (“IJ”) denying Thapachhetri’s application for asylum,

9    withholding of removal, and relief under the Convention Against

10   Torture (“CAT”).       In re Rudra Narshing Thapachhetri, No. A206

11   233 429 (B.I.A. Dec. 31, 2015), aff’g No. A206 233 429 (Immig.

12   Ct.    Hartford     June   16,    2014).     We   assume   the   parties’

13   familiarity with the underlying facts and procedural history

14   in this case.

15          Under the circumstances of this case, we have reviewed the

16   decisions of both the BIA and the IJ “for the sake of

17   completeness.”       Wangchuck v. Dep’t of Homeland Sec., 448 F.3d

18   524, 528 (2d Cir. 2006).           The applicable standards of review

19   are well established.          See 8 U.S.C. § 1252(b)(4)(B); Yanqin

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

21     I.        Change in Conditions

22          It    is   undisputed     that   Thapachhetri   established   past

23   persecution in Nepal on account of his membership in the Nepali

                                             2
1    Congress Party (“NCP”).           Accordingly, he benefits from a

2    presumption of a “well-founded fear of [future] persecution on

3    the basis of the original claim.”           8 C.F.R. § 1208.13(b)(1).

4    However, the Government may rebut this presumption if, among

5    other things, “[t]here has been a fundamental change in

6    circumstances      such   that    the   applicant    no   longer    has    a

7    well-founded       fear   of   persecution    in     [his]   country      of

8    nationality.”       Id. § 1208.13(b)(1)(i)(A).            The Government

9    “bear[s] the burden of establishing by a preponderance of the

10   evidence”    the    fundamental    change    in    circumstances.      Id.

11   § 1208.13(b)(1)(ii).       “To determine whether the government has

12   rebutted the presumption entails ‘an individualized analysis

13   of whether the changes in conditions in [the relevant country]

14   were so fundamental that they are sufficient to rebut the

15   presumption that [an applicant’s] fear of persecution is well

16   founded.’”    Lecaj v. Holder, 616 F.3d 111, 115 (2d Cir. 2010)

17   (quoting Passi v. Mukasey, 535 F.3d 98, 103-04 (2d Cir. 2008)).

18   We review the agency’s factual findings regarding changed

19   country conditions for substantial evidence.              Id. at 114-115;

20   8 U.S.C. § 1252(b)(4)(B).

21       We conclude that the agency’s finding that the Government

22   demonstrated fundamentally changed country conditions in Nepal

23   rests on substantial evidence.          In November 2013, following an

                                         3
1    election   which,   according    to   a   State   Department   report,

2    “[d]omestic and international observers characterized . . . as

3    credible and well-conducted” and “essentially free and fair,”

4    the NCP gained control of the majority of seats in parliament.

5    While there are some local articles in the record reporting that

6    members of the Maoist party “committed acts of political

7    violence and intimidation” leading up to the November 2013

8    election, the record evidence does not report post-election

9    violence by Maoists against NCP members.          Cf. Lecaj, 616 F.3d

10   at 117 (ruling that State Department report “reflect[ing]

11   ongoing    police   abuses”     was     insufficient   to   establish

12   well-founded fear because the report “d[id] not link those

13   abuses to [petitioner’s] ethnicity, religion, [or] political

14   opinion”).    In fact, as the agency observed, the evidence

15   suggests that the tables have turned and that the NCP has been

16   threatening Maoist party members.           The agency’s finding is

17   supported by the record, specifically a March 2014 joint press

18   release from two Maoist party factions complaining of the NCP’s

19   arrest and detention of several Maoist party members.

20       Thapachhetri    insists     that,     notwithstanding   the   NCP’s

21   November 2013 victory, there remains a pattern or practice of

22   persecution of NCP members, as evidenced by the history of

23   Maoist attacks.     We have observed that “[t]he removal of a

                                       4
1    persecuting    despot     might   vitiate     an   asylum    applicant’s

2    well-founded fear of persecution, but in many cases lingering

3    elements of a despot’s regime may still pose a threat to an

4    applicant’s life and safety.”            Burger v. Gonzales, 498 F.3d

5    131, 135 (2d Cir. 2007).      But there is little record evidence

6    about violence against the NCP generally, let alone evidence

7    sufficient to establish a pattern or practice of persecution

8    of   NCP   members   by   Maoists.        Accordingly,      the   agency’s

9    conclusion that the Government rebutted the presumption of

10   future persecution is supported by             substantial evidence.

11   Lecaj, 616 F.3d at 115; 8 U.S.C. § 1252(b)(4)(B).

12        Thapachhetri also argues that the agency erred in not

13   addressing his individualized fear of persecution.                Absent a

14   presumption of future persecution, “[a]n asylum applicant can

15   show a well-founded fear of future persecution in two ways:

16   (1) by demonstrating that he or she ‘would be singled out

17   individually for persecution’ if returned, or (2) by proving

18   the existence of a ‘pattern or practice in [the] . . . country

19   of nationality . . . of persecution of a group of persons

20   similarly situated to the applicant’ and establishing his or

21   her ‘own inclusion in, and identification with, such group.’”

22   Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013) (quoting 8

23   C.F.R. § 1208.13(b)(2)(iii)).

                                          5
1          Thapachhetri did not demonstrate that he would be singled

2    out individually for persecution in Nepal given the change in

3    circumstances or that there is a pattern or practice of

4    persecution of NCP members.         His fear is based on his assertion

5    that “there is a network of Maoists all over Nepal,” as well

6    as a threatening phone call his wife received after he left

7    Nepal.    However, Thapachhetri testified that his wife and

8    children reside in Nepal unharmed.         See Jian Xing Huang v. U.S.

9    INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In the absence of solid

10   support   in   the    record . . . ,     [an   applicant’s]    fear   is

11   speculative at best.”); Melgar de Torres v. Reno, 191 F.3d 307,

12   313 (2d Cir. 1999) (finding alleged future fear diminished when

13   similarly situated individuals are able to live unharmed in

14   asylum applicant’s native country).

15       II. Humanitarian Asylum

16         Thapachhetri argues that he is eligible for humanitarian

17   asylum because he “is mentally scarred” due to the “brutality

18   of [his] past harm.”        To merit a grant of humanitarian asylum,

19   an applicant “must establish both ‘the severe harm and the

20   long-lasting effects of that harm.’”           Jalloh v. Gonzales, 498

21   F.3d 148, 151-52 (2d Cir. 2007) (quoting In re N-M-A-, 22 I.

22   &    N.   Dec.       312,     326    (B.I.A.     1998));   8    C.F.R.

23   § 1208.13(b)(1)(iii)(A).

                                          6
1        The agency’s conclusion that the severity of

2    Thapachhetri’s past harm was insufficient for a grant of

3    humanitarian asylum likewise rests on substantial evidence.

4    In 2012, he was treated at the hospital for four hours for

5    unidentified injuries.   And in 2013, he suffered injuries to

6    his shoulder, chest, and arms, for which he was treated with

7    a pain killer, IV fluid, and bandages, and then discharged

8    within three hours because his “condition improved.”     He did

9    not testify to any long-lasting effects stemming from these

10   incidents.   Because Thapachhetri “provided no evidence of

11   long-lasting physical or mental effects of his persecution that

12   would support his insistence that he not be returned to” Nepal,

13   the agency reasonably denied humanitarian asylum.   Jalloh, 498

14   F.3d at 152.

15     III. CAT Relief

16       Finally, Thapachhetri argues that he is eligible for CAT

17   relief because the background evidence establish “that the

18   Maoists . . . still engage in violence and extortion” with

19   governmental acquiescence, as evidenced by police corruption.

20   Although the agency independently addressed CAT and the parties

21   do the same, the only basis for Thapachhetri’s fear was the same

22   as for asylum and withholding of removal.     Accordingly, the

23   agency’s conclusion that that he did not have a well-founded

                                    7
1   fear of future harm, is dispositive.    See Lecaj, 616 F.3d at

2   119-20 (holding that failure to meet burden for asylum precludes

3   showing needed to meet higher burden for withholding of removal

4   and CAT relief).

5       For the foregoing reasons, the petition for review is

6   DENIED.

7                                FOR THE COURT:
8                                Catherine O’Hagan Wolfe, Clerk




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