         11-1942-ag
         Gurung v. Holder
                                                                                        BIA
                                                                                   Videla, IJ
                                                                               A088 527 868
                             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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 16th day of February, two thousand twelve.
 5
 6       PRESENT:
 7                PIERRE N. LEVAL,
 8                JOSÉ A. CABRANES,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _______________________________________
12
13       LAXMI GURUNG,
14                Petitioner,
15
16                          v.                                  11-1942-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Jason A. Nielson, Law Offices of
24                                     Thomas Mungoven, New York, New York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Richard M. Evans, Assistant
28                                     Director; Andrew Oliveira, Trial
29                                     Attorney, Office of Immigration
30                                     Litigation, United States Department
31                                     of Justice, 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       Laxmi Gurung, a native and citizen of Nepal, seeks

 6   review of an April 15, 2011, order of the BIA affirming the

 7   July 14, 2009, decision of an Immigration Judge (“IJ”)

 8   denying her application for asylum, withholding of removal,

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

10   re Laxmi Gurung, No. A088 527 868 (B.I.A. Apr. 15, 2011),

11   aff’g No. A088 527 868 (Immig. Ct. N.Y. City July 14, 2009).

12   We assume the parties’ familiarity with the underlying facts

13   and procedural history in this case.

14       Under the circumstances of this case, we have reviewed

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

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

17   applicable standards of review are well established.     See

18   8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d

19   510, 513 (2d Cir. 2009).

20       Gurung argues that the agency erred in finding that she

21   was not persecuted on account of her political opinion.

22   Section 101(a)(3) of the REAL ID Act, 8 U.S.C.

23   § 1158(b)(1)(B)(i), applicable here because Gurung filed her

24   application in 2007, see REAL ID Act § 101(h)(2), provides

                                  2
 1   that an asylum applicant “must establish that [a protected

 2   ground] was or will be at least one central reason for” the

 3   claimed persecution.     See Castro v. Holder, 597 F.3d 93, 100

 4   (2d Cir. 2010).   The statements contained in Gurung’s

 5   affidavit and testimony indicate that the Maoists came to

 6   her home to recruit members for their protest rally, and

 7   that it was her refusal to join, not her personal political

 8   opinion, that resulted in the harm suffered and subsequent

 9   visit and threats.     Because the record shows that the

10   Maoists were motivated by a desire to fill their ranks, the

11   agency reasonably concluded that the harm suffered was not

12   on account of a protected ground.       See INS v. Elias-

13   Zacarias, 502 U.S. 478, 482 (1992).

14       Although Gurung contends that the IJ failed to consider

15   Exhibit 5, the record shows that the IJ considered the

16   letters from Gurung’s mother and the village committee, but

17   ultimately based its finding on Gurung’s testimony, see Xiao

18   Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.

19   2006), from which a reasonable factfinder could conclude

20   that the Maoists’ objective was to recruit Gurung for

21   participation in their rally.       See Matter of J-B- & S-M-, 24

22   I. & N. Dec. 208, 214 (BIA 2007); Siewe v. Gonzales, 480


                                     3
 1   F.3d 160, 167 (2d Cir. 2007) (“Where there are two

 2   permissible views of the evidence, the factfinder’s choice

 3   between them cannot be clearly erroneous.” (citation

 4   omitted)).    Accordingly, substantial evidence supports the

 5   agency’s conclusion that Gurung did not demonstrate that the

 6   harm she suffered, or her fear of future harm, bore a

 7   sufficient nexus to a protected ground.

 8       Having found that Gurung did not establish a sufficient

 9   nexus to a protected ground, the agency did not err in

10   denying her asylum and withholding of removal.    See Jin Jin

11   Long v. Holder, 620 F.3d 162, 166 (2d Cir. 2010); Matter of

12   C-T-L-, 25 I. & N. Dec. 341, 346 (BIA 2010) (holding that

13   the “one central reason” nexus standard of the REAL ID Act

14   applies to withholding of removal).    Further, the agency

15   reasonably denied Gurung CAT relief, as neither Gurung nor

16   her family members had ever been arrested or detained in

17   Nepal, and the only instances of harm or mistreatment that

18   Gurung experienced in Nepal were insufficient to constitute

19   persecution, much less torture.    See Elias-Zacarias, 502

20   U.S. at 482; Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d

21   Cir. 2011).    Aside from country conditions evidence of

22   general human rights concerns in Nepal, Gurung failed to


                                    4
 1   provide any evidence showing that someone in her particular

 2   circumstances would likely be tortured if returned to Nepal.

 3   See Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 160

 4   (2d Cir. 2005); see also Mu-Xing Wang v. Ashcroft, 320 F.3d

 5   130, 144 (2d Cir. 2003).

 6       Gurung’s challenge to the BIA’s adoption and affirmance

 7   of the IJ’s decision is meritless.     See Aslam v. Mukasey,

 8   537 F.3d 110, 117 (2d Cir. 2008).     Finally, we decline to

 9   address Gurung’s argument that the IJ failed to admit

10   Exhibit 5 into evidence, as that specific argument was never

11   raised before the agency.     See Foster v. U.S. INS, 376 F.3d

12   75, 78 (2d Cir. 2004); Lin Zhong v. U.S. Dep’t of Justice,

13   480 F.3d 104, 119-20 (2d Cir. 2007).

14       For the foregoing reasons, the petition for review is

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

16   removal that the Court previously granted in this petition

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

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

19   oral argument in this petition is DENIED in accordance with

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

21   Circuit Local Rule 34.1(b).

22                                 FOR THE COURT:
23                                 Catherine O’Hagan Wolfe, Clerk




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