         11-1026-ag
         Gurung v. Holder
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A099 769 359
                              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 6th day of February, two thousand twelve.
 5
 6       PRESENT:
 7                          ROGER J. MINER,
 8                          ROBERT A. KATZMANN,
 9                          BARRINGTON D. PARKER,
10                               Circuit Judges.
11
12       _______________________________________
13
14       BHAWAR JUNG GURUNG,
15                Petitioner,
16
17                          v.                                  11-1026-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _______________________________________
23
24       FOR PETITIONER:                 Khagendra Gharti-Chhetry, New York,
25                                       NY.
26
27       FOR RESPONDENT:                 Tony West, Assistant Attorney
28                                       General; Emily Anne Radford,
29                                       Assistant Director; Sarah L. Vuong,
30                                       Trial Attorney, Office of
31                                       Immigration Litigation, United
32                                       States Department of Justice,
33                                       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       Petitioner Bhawar Jung Gurung, a native and citizen of

 6   Nepal, seeks review of a February 15, 2011, order of the BIA

 7   affirming the November 4, 2009, decision of Immigration

 8   Judge (“IJ”) Barbara A. Nelson, denying his application for

 9   asylum, withholding of removal, and relief under the

10   Convention Against Torture (“CAT”).    In re Bhawar Jung

11   Gurung, No. A099 769 359 (B.I.A. Feb. 15, 2011), aff’g No.

12   A099 769 359 (Immigr Ct. N.Y. City Nov. 4, 2009).       We assume

13   the parties’ familiarity with the underlying facts and

14   procedural history of this case.

15       Under the circumstances of this case, we have reviewed

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

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

18   applicable standards of review are well-established.

19   See 8 U.S.C. § 1252(b)(4)(B) (2006); Yanqin Weng v. Holder,

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

21       Gurung argues that he suffered past persecution at the

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

23   refused their demands for money.    However, as Gurung

                                  2
 1   testified, the Maoists did not physically harm him or

 2   financially harm his tourist businesses, which independently

 3   suffered due to a decline in tourism.     The agency therefore

 4   reasonably found that the Maoists’ unfulfilled threats did

 5   not constitute persecution.   See Ivanishvili v. U.S. Dep’t

 6   of Justice, 433 F.3d 332, 342 (2d Cir. 2006) (holding that

 7   harm must be sufficiently severe, rising above mere

 8   harassment, to constitute persecution); Gui Ci Pan v. U.S.

 9   Attorney Gen., 449 F.3d 408, 412 (2d Cir. 2006) (per curiam)

10   (noting that courts have “rejected [persecution] claims

11   involving ‘unfulfilled’ threats’”).

12       The agency also reasonably found that Gurung failed to

13   establish that the Maoists targeted him based on his

14   political opinion or any other protected ground.     Gurung

15   asserts that the Maoists targeted him because he opposed

16   them politically, had close ties to the royal family, and

17   supported the National Democratic Party.     Yet he testified

18   only that the Maoists began demanding money once they

19   confirmed that he owned a business.     He also testified that

20   he did not meet the Maoists’ demands because he did not want

21   to give them any money and not because he disagreed with

22   their political goals or beliefs.     Thus, the agency


                                   3
 1   reasonably found that the Maoists targeted him as a business

 2   owner and not because of his political opinion.   See Chun

 3   Gao, 424 F.3d at 129.

 4       Gurung also asserts that he established a well-founded

 5   fear of persecution by the Maoists based on his political

 6   opposition.   To the contrary, as discussed above, the agency

 7   reasonably found that the Maoists did not target Gurung

 8   based on his political opinion but based on his potential

 9   income as a business owner.   Furthermore, the background

10   materials that Gurung submitted indicate that the Maoists

11   who, according to the 2008 State Department Human Rights

12   Report, continued to foster violence in Nepal through the

13   “arbitrary and unlawful use of lethal force” did not target

14   any particular group of people.

15       The agency also reasonably found that Gurung failed to

16   corroborate his claim sufficiently.   Although the IJ

17   declined to admit into evidence several of the exhibits

18   Gurung submitted as untimely, she addressed them and did not

19   err by affording little weight to the letters from his

20   purported political party and the Nepalese Communist Party

21   because they were not authenticated and to the letter from

22   his wife because it was not based on personal knowledge.


                                   4
 1   See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 332

 2   (2d Cir. 2006).   Moreover, as the IJ reasonably found,

 3   Gurung should have submitted a letter from his nephew who

 4   witnessed, in part, the Maoists’ threats.   See Diallo v.

 5   INS, 232 F.3d 279, 285 (2d Cir. 2000).   Given the lack of

 6   evidence demonstrating the possibility that Gurung would be

 7   targeted by Maoists, the agency reasonably found that Gurung

 8   failed to establish a well-founded fear of persecution.      See

 9   Melgar de Torres v. Reno, 191 F.3d 307, 314 n.3 (2d Cir.

10   1999) (finding that general civil strife does not establish

11   a well-founded fear of persecution).

12       Because Gurung was unable to show the objective

13   likelihood of persecution needed to make out an asylum

14   claim, he necessarily was unable to meet the higher standard

15   required to succeed on a claim for withholding of removal.

16   See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006);

17   Gomez v. INS, 947 F.2d 660, 665 (2d Cir. 1991).

18   Furthermore, the agency did not err in denying CAT relief

19   because Gurung’s CAT claim was based on the same factual

20   predicate as his asylum and withholding of removal claims.

21   See Paul, 444 F.3d at 155-56.

22       For the foregoing reasons, the petition for review is

23   DENIED.   As we have completed our review, any stay of
                                     5
 1   removal that the Court previously granted in this petition

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

 3   this petition is DENIED as moot. Any pending request for

 4   oral argument in this petition is DENIED in accordance with

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

 6   Circuit Local Rule 34.1(b).

 7                                 FOR THE COURT:
 8                                 Catherine O’Hagan Wolfe, Clerk
 9
10




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