     16-735
     Pokharel v. Sessions
                                                                                        BIA
                                                                                   Straus, IJ
                                                                               A205 646 800
                             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   31st day of May, two thousand seventeen.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            BARRINGTON D. PARKER,
 9            GERARD E. LYNCH,
10                 Circuit Judges.
11   _____________________________________
12
13   LAL CHANDRA POKHAREL,
14            Petitioner,
15
16                      v.                                           16-735
17                                                                   NAC
18   JEFFERSON B. SESSIONS III, UNITED
19   STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                    Khagendra Gharti-Chhetry, New York,
24                                      NY.
25
26   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
27                                       Assistant Attorney General; Russell
28                                       J. E. Verby, Senior Litigation
29                                       Counsel; John D. Williams, Trial
30                                       Attorney, Office of Immigration
31                                       Litigation, United States
32                                       Department of Justice, Washington,
33                                       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 Lal Chandra Pokharel, a native and citizen of

6    Nepal, seeks review of a February 19, 2016, decision of the BIA

7    affirming September 16, 2014, decision of an Immigration Judge

8    (“IJ”) denying asylum, withholding of removal, and relief under

9    the Convention Against Torture (“CAT”).          In re Lal Chandra

10   Pokharel, No. A205 646 800 (B.I.A. Feb. 19, 2016), aff’g No.

11   A205 646 800 (Immig. Ct. Hartford Sept. 16, 2014).        We assume

12   the   parties’   familiarity   with    the   underlying   facts   and

13   procedural history in this case.

14         We have reviewed the IJ’s and the BIA’s decisions “for the

15   sake of completeness.”    Wangchuck v. Dep’t of Homeland Sec.,

16   448 F.3d 524, 528 (2d Cir. 2006).       The applicable standards of

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

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

19         For asylum, withholding of removal, and CAT relief, “[t]he

20   testimony of [an] applicant may be sufficient to sustain the

21   applicant’s burden without corroboration, but only if the

22   applicant satisfies the trier of fact that the applicant’s


                                      2
1    testimony is credible, is persuasive, and refers to specific

2    facts sufficient to demonstrate that the applicant is a

3    refugee.”       8 U.S.C. § 1158(b)(1)(B)(ii); see also 8 U.S.C.

4    § 1231(b)(3)(C); 8 C.F.R. § 1208.16(c)(2).              “Where the trier

5    of fact determines that the applicant should provide evidence

6    that corroborates otherwise credible testimony, such evidence

7    must be provided unless the applicant does not have the evidence

8    and    cannot    reasonably    obtain     the    evidence.”        8 U.S.C.

9    § 1158(b)(1)(B)(ii).          We   find   no    error   in   the   agency’s

10   conclusions that Pokharel failed to satisfy his burden of proof

11   for asylum, withholding of removal, and CAT relief as to his

12   claims that Maoists beat him on account of his membership in

13   the Nepali Congress Party, and threatened him if he did not pay

14   them extortion money.

15     I.     Asylum and Withholding of Removal

16          To establish eligibility, an asylum applicant must show

17   that he or she has suffered past persecution, or has a

18   well-founded fear of future persecution, “on account of race,

19   religion, nationality, membership in a particular social group,

20   or political opinion.”        8 U.S.C. § 1101(a)(42).

21

22


                                          3
1    Past Persecution

2           “[P]ersecution is ‘an extreme concept that does not include

3    every sort of treatment our society regards as offensive.’”

4    Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d Cir. 2011) (quoting

5    Ai Feng Yuan v. U.S. Dep’t of Justice, 416 F.3d 192, 198 (2d

6    Cir.    2005))).    A   valid   claim    of   past   persecution   may

7    “encompass[] a variety of forms of adverse treatment, including

8    non-life-threatening violence and physical abuse,” but the harm

9    must be sufficiently severe, rising above “mere harassment.”

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

11   2006).    “‘[T]he difference between harassment and persecution

12   is necessarily one of degree,’ . . . the degree must be assessed

13   with regard to the context in which the mistreatment occurs.”

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

15   Ivanishvili, 433 F.3d at 341).        “The [agency] must, therefore,

16   be keenly sensitive to the fact that a ‘minor beating’ or, for

17   that matter, any physical degradation designed to cause pain,

18   humiliation, or other suffering, may rise to the level of

19   persecution if it occurred in the context of an arrest or

20   detention on the basis of a protected ground.”          Id.

21          The agency did not err in concluding that Pokharel failed

22   to establish that a 2004 incident when Maoists beat him rose


                                       4
1    to the level of persecution.     He provided few details in his

2    testimony about the beating and resulting injuries.          And he

3    failed to submit evidence from the center that treated him so

4    as to provide a more detailed description of his injuries.

5    Therefore, while this incident was reprehensible, the agency

6    did not err in finding that Pokharel failed to satisfy his burden

7    of establishing that the harm he suffered rose to the level of

8    persecution.     See 8 U.S.C. § 1158(b)(1)(B)(ii); see also

9    Beskovic, 467 F.3d at 226; Jian Qiu Liu v. Holder, 632 F.3d 820,

10   822 (2d Cir. 2011).

11   Well-Founded Fear of Future Persecution

12       Absent past persecution, Pokharel had the burden of

13   demonstrating a well-founded fear of future persecution on

14   account of his race, religion, nationality, membership in a

15   particular social group, or political opinion.             8 U.S.C.

16   § 1158(b)(1)(B)(i); 8 C.F.R. § 1208.13(a), (b).         In order to

17   establish   a   well-founded   fear   of   future   persecution,   an

18   applicant must show either a reasonable possibility that he

19   would be singled out for persecution or that the country of

20   removal has a pattern or practice of persecuting individuals

21   similarly situated to him.     8 C.F.R. § 1208.13(b)(2)(iii).




                                      5
1          The agency did not err in finding that Pokharel failed to

2    establish    a   well-founded       fear    of    being    singled   out   for

3    persecution on account of his political opinion.              His testimony

4    that he feared returning to his home village based on threats

5    and a false accusation by Maoists in 2008 was not sufficiently

6    credible or persuasive as he failed to provide any details about

7    the incident and his evidence was inconsistent with regard to

8    whether his wife ever returned to their village after 2008.                See

9    8 U.S.C. § 1158(b)(1)(B)(ii).             Furthermore, Pokharel admitted

10   that he had no basis to conclude that a Maoist who threatened

11   him for extortion in Kathmandu in 2012 was motivated by

12   Pokharel’s political opinion, and thus his fear to that extent

13   was   not   based      on   a    protected       ground.      See    8 U.S.C.

14   § 1158(b)(1)(B)(i); see INS v. Elias-Zacarias, 502 U.S. 478,

15   482 (1992) (“The ordinary meaning of the phrase ‘persecution

16   on account of ... political opinion’ . . . is persecution on

17   account     of   the    victim’s      political       opinion,       not   the

18   persecutor’s.”).

19         Nor did the agency err in determining that Pokharel failed

20   to establish a pattern or practice of persecution of similarly

21   situated individuals.           The IJ acknowledged an affidavit from

22   an alleged expert on Nepal, suggesting that seemingly stable


                                           6
 1   political conditions in Nepal were fragile and that Maoists

 2   would target those they had in the past if political conditions

 3   unraveled.    But, as the IJ found, there was no record evidence

 4   indicating that Maoist violence remains a widespread problem

 5   or that Maoists continue to target Nepali Congress Party

 6   members.    On this record, the agency did not err in determining

 7   that Pokharel failed to demonstrate “systemic or pervasive”

 8   persecution of similarly situated Nepali Congress Party members

 9   sufficient to demonstrate a pattern and practice of persecution

10   in Nepal.    In re A-M-, 23 I. & N. Dec. 737, 741 (B.I.A. 2005);

11   see also 8 C.F.R. § 1208.13(b)(2)(iii); Santoso v. Holder, 580

12   F.3d 110, 112 & n.1 (2d Cir. 2009) (denying petition where agency

13   considered    background    materials    and    rejected   pattern    or

14   practice claim).

15       Accordingly, because the agency reasonably found that

16   Pokharel    failed   to    demonstrate   a     well-founded   fear    of

17   persecution on account of his political opinion, it did not err

18   in denying asylum and withholding of removal.              See Paul v.

19   Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

20     II. Convention Against Torture

21       To receive CAT relief, an applicant must establish a

22   likelihood of torture with government acquiescence.                  See


                                       7
1    8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1); see also Khouzam v.

2    Ashcroft, 361 F.3d 161, 168-69 (2d Cir. 2004).   Unlike asylum

3    and withholding of removal, CAT relief does not require a nexus

4    to any protected ground.   See 8 C.F.R. § 1208.16(c)(2).

5        We find no error in the agency’s determination that

6    Pokharel failed to demonstrate a likelihood of torture with the

7    acquiescence of Nepali officials.   Id.; see also Khouzam, 361

8    F.3d at 168-69.   The record does not establish that Maoist

9    violence and extortion continues to be a problem throughout

10   Nepal, and Pokharel did not demonstrate that the Nepali

11   government, which his party controlled at the time of his

12   hearing, would acquiesce in his torture.

13       For the foregoing reasons, the petition for review is

14   DENIED.

15                                FOR THE COURT:
16                                Catherine O’Hagan Wolfe, Clerk




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