13-1304 Sherpa v. Lynch BIA Vomacka, IJ A089 198 143 

### 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.**  **At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 28 th** **day of August, two thousand fifteen.** 4 5 **PRESENT:** 6 **ROSEMARY S. POOLER,** 7 **BARRINGTON D. PARKER,** 8 **DEBRA ANN LIVINGSTON,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **DAKI SHERPA,** 13 Petitioner**,** 14 15 **v. 13-1304** 16 **NAC** 17 **LORETTA E. LYNCH, UNITED STATES** 18 **ATTORNEY GENERAL,** ***** 19 Respondent**.** 20

**_____________________________________** 21 22 **FOR PETITIONER: Julie Mullaney, Mount Kisco, NY.** 23 24

*Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Loretta E. Lynch is automatically substituted for former Attorney General Eric H. Holder, Jr., as the Respondent in this case.**FOR RESPONDENT: Stuart F. Delery, Assistant Attorney** 1 **General; Terri J. Scadron, Assistant** 2 **Director; Aaron D. Nelson, Trial** 3 **Attorney, Office of Immigration** 4 **Litigation, United States Department** 5 **of Justice, Washington, D.C.** 6 UPON DUE CONSIDERATION of this petition for review of a 7 decision of the Board of Immigration Appeals (“BIA”), it is 8 hereby ORDERED, ADJUDGED, AND DECREED that the petition for 9 review is DENIED. 10 Daki Sherpa, a native and citizen of Nepal, seeks 11 review of a March 21, 2013, decision of the BIA affirming an 12 Immigration Judge’s (“IJ”) January 6, 2011, denial of 13 asylum, withholding of removal, and relief under the 14 Convention Against Torture (“CAT”). In re Daki Sherpa , No. 15 A089 198 143 (B.I.A. Mar. 21, 2013), aff’gNo. A089 198 143 16 (Immig. Ct. N.Y. City Jan. 6, 2011). We assume the parties’ 17 familiarity with the underlying facts and procedural history 18 of this case. 19 Because the BIA did not affirm the IJ’s adverse 20 credibility finding, we review the IJ’s decision as modified 21 and supplemented by the BIA. See Xue Hong Yang v. U.S. 22 Dep’t of Justice , 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen 23 v. Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). The 24 applicable standards of review are well-established. See 25

28 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 1 562 F.3d 510, 513 (2d Cir. 2009). 2 As the government argues, Sherpa failed to exhaust her 3 claim of past persecution, her eligibility for CAT relief, 4 and her assertion of a “pattern or practice” of persecution 5 by Maoists in Nepal. Nor does she adequately raise her past 6 persecution or CAT claims in her brief. Therefore, our 7 review is limited to Sherpa’s claim that she has a well8 founded fear of future persecution by Maoists. See Lin 9 Zhong v. U.S. Dep’t of Justice , 480 F.3d 104, 124 (2d Cir. 10 2007); Karaj v. Gonzales , 462 F.3d 113, 119 (2d Cir. 2006). 11 Sherpa may establish a well-founded fear of future 12 persecution by showing that she will be singled out for 13 persecution. 8 C.F.R. § 1208.13(b)(2)(C)(iii) (asylum). To 14 meet her burden, Sherpa must show a subjective fear of 15 future persecution and that her fear is objectively 16 reasonable. See Ramsameachire v. Ashcroft , 357 F.3d 169, 17 178 (2d Cir. 2004). 18 Substantial evidence supports the agency’s ruling that 19 Sherpa did not establish an objectively reasonable fear of 20 future persecution because she was not harmed while she 21 lived in Nepal and her husband has remained unharmed for 22

3nine years. Sherpa acknowledges in her brief that her 1 family has not been harmed. The ability of similarly 2 situated family members to avoid harm over a significant 3 time period “cuts against” a finding of a well-founded fear. 4
See Melgar de Torres v. Reno , 191 F.3d 307, 313 (2d Cir. 5 1999). Sherpa’s testimony established that the Maoists had 6 sought to recruit both her and her husband. Thus, she and 7 her husband were similarly situated and his lack of harm in 8 Nepal was a proper factor for the agency to consider in 9 determining that she did not establish an objectively 10 reasonable fear of future persecution. Id. 11 Sherpa also argues that the BIA failed to consider 12 country reports, which established that Maoists regularly 13 persecute their enemies. We presume that the agency “has 14 taken into account all of the evidence before [it], unless 15 the record compellingly suggests otherwise.” Xiao Ji Chen 16 v. U.S. Dep’t of Justice , 471 F.3d 315, 337 n.17 (2d Cir. 17 2006). Sherpa has not cited to any specific country 18 conditions evidence to support her allegations. Moreover, 19 even if the country reports contain the information Sherpa 20 attributes to them, they do not undermine the agency’s 21 ruling. Because Sherpa’s claim of future persecution is 22 premised on being singled out for persecution--as opposed to 23
4a pattern or practice of persecution--the Maoists’ general 1 persecution of their “enemies” does not establish that 2 Sherpa, individually, will be targeted in the future for 3 harm rising to the level of persecution. 4 Given Sherpa’s failure to show a well-founded fear of 5 persecution as needed for asylum, she was necessarily unable 6 to meet the higher standard for withholding of removal. See 7 Lecaj v. Holder, 616 F.3d 111, 119-20 (2d Cir. 2010). 8 For the foregoing reasons, the petition for review is 9

DENIED. 10
FOR THE COURT: 11 Catherine O’Hagan Wolfe, Clerk 12 13 14

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