         08-5280-ag
         Sherpa v. Holder
                                                                                        BIA
                                                                              Hladylowycz, IJ
                                                                               A079 509 324
                             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
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     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 4 th day of February, two thousand ten.
 5
 6       PRESENT:
 7                ROSEMARY S. POOLER,
 8                BARRINGTON D. PARKER,
 9                RICHARD C. WESLEY,
10                         Circuit Judges.
11       _______________________________________
12
13       WONGCHHU SHERPA,
14                Petitioner,
15
16                          v.                                  08-5280-ag
17                                                              NAC
18       ERIC H. HOLDER JR., 1 UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
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                       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 PETITIONER:        Khagendra Gharti-Chhetry, New York,
 2                          New York.
 3
 4   FOR RESPONDENT:        Michael F. Hertz, Acting Assistant
 5                          Attorney General; William C.
 6                          Peachey, Assistant Director; Ada E.
 7                          Bosque, Attorney; Office of
 8                          Immigration Litigation, United
 9                          States Department of Justice,
10                          Washington, D.C.
11
12       UPON DUE CONSIDERATION of this petition for review of a

13   Board of Immigration Appeals (“BIA”) decision, it is hereby

14   ORDERED, ADJUDGED, AND DECREED that the petition for review

15   is DENIED.

16       Petitioner Wongchhu Sherpa, a native and citizen of

17   Nepal, seeks review of a September 30, 2008 order of the BIA

18   affirming the May 19, 2003 decision of Immigration Judge

19   (“IJ”) Roxanne C. Hladylowycz, denying Sherpa’s application

20   for asylum, withholding of removal, and relief under the

21   Convention Against Torture (“CAT”).   In re Wongchhu Sherpa,

22   No. A079 509 324 (B.I.A. Sept. 30, 2008), aff’g No. A079 509

23   324 (Immig. Ct. N.Y. City May 19, 2003).   We assume the

24   parties’ familiarity with the underlying facts and

25   procedural history in this case.

26       When the BIA adopts the decision of the IJ and

27   supplements the IJ’s decision, this Court reviews the

28   decision of the IJ as supplemented by the BIA.   See Yan Chen

29   v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the

                                  2
1    agency’s factual findings under the substantial evidence

2    standard.     See 8 U.S.C. § 1252(b)(4)(B); see also Manzur v.

3    DHS, 494 F.3d 281, 289 (2d Cir. 2007).      Questions of law and

4    the application of law to undisputed fact are reviewed de

5    novo.   See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d

6    Cir. 2008).

7        The agency did not err in denying Sherpa’s application

8    for asylum and withholding of removal based on his failure

9    to show a nexus to a protected ground.      See 8 U.S.C.

10   § 1101(a)(42); See Jiang v. Gonzales, 500 F.3d 137, 142 (2d

11   Cir. 2007).     The agency rejected Sherpa’s proposed

12   particular social group, which he defined as wealthy Sherpa

13   landowners who are involved with the Congress Party.       See In

14   re Acosta, 19 I. & N. Dec. at 211 (BIA 1985) (An “immutable

15   characteristic” is one that members of the group “either

16   cannot change, or should not be required to change because

17   it is fundamental to their individual identities or

18   consciences.”).     The agency reasonably concluded that

19   “wealth” was not an immutable characteristic that could be

20   used to define a social group.      See Saleh v. U.S. Dep’t of

21   Justice, 962 F.2d 234, 240 (2d Cir. 1992) (holding that

22   “poor” Yemeni Muslims are not a particular social group


                                     3
1    because group “posses[es] broadly-based characteristics”);

2    see also Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73-74 (2d Cir.

3    2007) (finding reasonable the BIA’s conclusion that

4    “affluent Guatemalans” did not constitute a cognizable

5    social group).   Further, as the BIA observed, the record

6    indicated that the Maoists targeted the entire Nepalese

7    population and that Sherpa presented “no evidence to suggest

8    that his status as a land owner or as a Sherpa contributed

9    to the threats he received.”   Therefore, the agency

10   reasonably found both that the social group Sherpa described

11   was not cognizable and that, even if it was, the Maoists

12   were not motivated to persecute him, even in part, on

13   account of his membership in that group.   See Ucelo-Gomez,

14   509 F.3d at 73-74.

15       While Sherpa argues that the BIA failed to consider his

16   imputed political opinion claim, the BIA reasonably found

17   that there was “simply no evidence that the extortion

18   threats he received were motivated even in part by his

19   political leanings.”   Indeed, Sherpa admitted that his

20   political involvement was minimal.   Additionally, while

21   Sherpa argues that the BIA failed to consider the testimony

22   of his witness, the BIA specifically considered that


                                    4
1    testimony, observing that the witness testified that the

2    Maoists’ motivation to target Sherpa was “totally

3    economical.”    In view of this and other record evidence, we

4    find no error in the BIA’s conclusion that the Maoists were

5    not motivated to target Sherpa, even in part, because they

6    believed he held a political opinion antithetical to their

7    own.

8           Because the agency’s nexus findings are dispositive of

9    Sherpa’s asylum and withholding of removal claims, we

10   decline to address Sherpa’s argument that the BIA erred by

11   failing to address the evidence he submitted concerning

12   whether he could relocate within Nepal.    Finally, because

13   the parties’ stipulated agreement did not remand to the

14   agency for it to consider CAT relief, and the BIA did not

15   consider that form of relief on remand, Sherpa’s challenge

16   to the agency’s denial of CAT relief is unexhausted.    See

17   8 U.S.C. § 1252(d)(1); Karaj v. Gonzales, 462 F.3d 113, 119

18   (2d Cir. 2006).

19          For the foregoing reasons, the petition for review is

20   DENIED.

21
22                                 FOR THE COURT:
23                                 Catherine O’Hagan Wolfe, Clerk
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