         08-4757-ag
         Bhandari v. Holder
                                                                                           BIA
                                                                                     Morace, IJ
                                                                                   A097 522 059
                                   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 21 st day of April, two thousand ten.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                      Chief Judge,
 9                JOHN M. WALKER, Jr.,
10                GERARD E. LYNCH,
11                      Circuit Judges.
12       _______________________________________
13
14       SHIVA KUMAR BHANDARI,
15                Petitioner,
16
17                            v.                                  08-4757-ag
18                                                                NAC
19       ERIC H. HOLDER, Jr., U.S. ATTORNEY
20       GENERAL, 1
21                  Respondent.
22       _______________________________________
23
24       FOR PETITIONER:                    Visuvanathan Rudrakumaran, New York,
25                                          New York.


                      1
                   Pursuant to Federal Rule of Appellate Procedure
             43(c)(2), Attorney General Eric H. Holder, Jr., is
             automatically substituted for former Attorney General
             Michael B. Mukasey as respondent in this case.
1    FOR RESPONDENT:        Tony West, Assistant Attorney
2                           General, Janice K. Redfern, Senior
3                           Litigation Counsel, Elizabeth Young,
4                           Trial Attorney, Office of
5                           Immigration Litigation, Civil
6                           Division, United States Department
7                           of Justice, Washington, D.C.

1        UPON DUE CONSIDERATION of this petition for review of a

2    decision of the Board of Immigration Appeals (“BIA”), it is

3    hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

4    review is DENIED.

5        Petitioner Shiva Kumar Bhandari, a native and citizen

6    of Nepal, seeks review of an August 27, 2008 order of the

7    BIA affirming the October 11, 2006 decision of Immigration

8    Judge (“IJ”) Philip L. Morace, denying his applications for

9    asylum, withholding of removal, and relief under the

10   Convention Against Torture (“CAT”).   In re Shiva Kumar

11   Bhandari, No. 097 522 059 (Aug. 27, 2008), aff’g No. A097

12   522 059 (Immig. Ct. N.Y. City Oct. 11, 2006).     We assume the

13   parties’ familiarity with the underlying facts and

14   procedural history of the case.

15       When the BIA issues an opinion that fully adopts the

16   IJ’s decision, we review the IJ’s decision.     See Mei Chai Ye

17   v. U.S. Dep’t of Justice, 489 F.3d 517, 523 (2d Cir. 2007).

18   The applicable standards of review are well-established.


                                  2
1    8 U.S.C. § 1252(b)(4)(B); Salimatou Bah v. Mukasey, 529 F.3d

2    99, 110 (2d Cir. 2008).

3        Title 8, Section 1158(a)(3) of the United States Code

4    provides that no court shall have jurisdiction to review the

5    agency’s finding that an asylum application was untimely

6    under 8 U.S.C. § 1158(a)(2)(B), or a finding that neither

7    changed nor extraordinary circumstances excuse untimeliness

8    under 8 U.S.C. § 1158(a)(2)(D); 8 U.S.C. § 1158(a)(3).

9    Notwithstanding that provision, however, this Court retains

10   jurisdiction to review constitutional claims and “questions

11   of law.”   8 U.S.C. § 1252(a)(2)(D).   Here, Bhandari

12   challenges the IJ’s factual determination that he

13   demonstrated no changed circumstances materially affecting

14   his eligibility for asylum, a finding we may not review.

15   See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329

16   (2d Cir. 2006).   We thus proceed to review Bhandari’s

17   challenge to the agency’s denial of his application for

18   withholding of removal.

19       Substantial evidence supports the IJ’s conclusion that

20   Bhandari failed to demonstrate past persecution.    See

21   Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d

22   Cir. 2006).   Unfulfilled threats alone do not support a



                                   3
1    claim of past persecution.     See Guan Shan Liao v. U.S. Dep’t

2    of Justice, 293 F.3d 61, 70 (2d Cir. 2002).      Although

3    Bhandari testified that Maoist cadres threatened him and his

4    family on several occasions, he never claimed that he or his

5    family suffered any actual harm as a result of those

6    threats.   See id.   Accordingly, the IJ reasonably concluded

7    that Bhandari failed to establish past persecution, and

8    that, therefore, he was not entitled to the presumption of a

9    well-founded fear of future persecution.     See 8 C.F.R.

10   § 1208.13(b)(1).

11       The IJ also reasonably found that Bhandari could safely

12   relocate within Nepal.    See 8 C.F.R. § 1208.13(b)(2)(ii).

13   As the IJ observed: (1) in August 2003, Bhandari lived

14   without difficulty in Biratnagar, an area neighboring his

15   home; (2) while he was in India, he safely returned to Nepal

16   three times; and (3) when Maoists cadres threatened his wife

17   in 2004, he advised her to go to Biratnagar, which she did.

18   See 8 C.F.R. § 208.13(b)(3).     Additionally, the IJ

19   reasonably considered that at the time of the merits

20   hearing, Bhandari’s wife and child continued to live in

21   Biratnagar, and (except for one threatening phone call) they

22   have not been harmed or threatened by Maoists.     See Melgar



                                     4
1    de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999).

2        Contrary to Bhandari’s argument, there is no indication

3    that the IJ failed to consider a speech by the U.S.

4    Ambassador in the record.    See Xiao Ji Chen, 471 F.3d at 337

5    n.17.   The Ambassador’s speech notes various isolated

6    incidents of Maoist attacks, but does not compel the

7    conclusion that it would be unreasonable for Bhandari to

8    relocate within Nepal.

9        Finally, there is no merit to Bhandari’s assertion that

10   the IJ failed to consider his claim that the King would

11   target him because of his political affiliation with the

12   Nepali Congress Party(“NCP”), and alternatively, that the

13   IJ’s finding with regard to this claim was not supported by

14   substantial evidence.    The IJ reasonably found that Bhandari

15   did not demonstrate that he would be persecuted by the

16   government of Nepal on account of his NCP membership.     Jian

17   Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005).

18   Bhandari asserts that because the IJ found him credible, the

19   IJ should have credited his testimony that “all the members

20   of [the NCP] were getting tortured by the King.”     However,

21   the IJ reasonably relied on the lack of corroborative

22   evidence in denying his claim.     8 U.S.C.§ 1158(b)(1)(B)(ii);



                                    5
1    Diallo v. INS, 232 F.3d 279, 288 (2d Cir. 2000).     Therefore,

2    Bhandari’s argument fails.

3        The IJ’s finding that Bhandari failed to sustain his

4    burden for withholding of removal was supported by

5    substantial evidence, and the denial of his application was

6    proper.   Further, because Bhandari was unable to establish

7    the objective likelihood of persecution required to

8    establish eligibility for withholding of removal, his CAT

9    claim necessarily fails.     See Paul v. Gonzales, 444 F.3d

10   148, 156 (2d Cir. 2006).

11       For the foregoing reasons, the petition for review is

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

13   removal that the Court previously granted in this petition

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

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

16   oral argument in this petition is DENIED in accordance with

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

18   Circuit Local Rule 34.1(b).
19
20                                 FOR THE COURT:
21                                 Catherine O’Hagan Wolfe, Clerk
22




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