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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 28th 4 day of August, two thousand fifteen.

5

6 PRESENT:

7 ROSEMARY S. POOLER,

8 BARRINGTON D. PARKER,

9 DEBRA ANN LIVINGSTON,

10 Circuit Judges. 

11 _____________________________________

12

13 DAKI SHERPA,

14 Petitioner, 

15

16 v. 13-1304

17 NAC 

18 LORETTA E. LYNCH, UNITED STATES 

ATTORNEY GENERAL,* 19

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Julie Mullaney, Mount Kisco, NY.

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.
1 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney

2 General; Terri J. Scadron, Assistant

3 Director; Aaron D. Nelson, Trial

4 Attorney, Office of Immigration

5 Litigation, United States Department

6 of Justice, Washington, D.C.

7 UPON DUE CONSIDERATION of this petition for review of a

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

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

10 review is DENIED.

11 Daki Sherpa, a native and citizen of Nepal, seeks

12 review of a March 21, 2013, decision of the BIA affirming an

13 Immigration Judge’s (“IJ”) January 6, 2011, denial of

14 asylum, withholding of removal, and relief under the

15 Convention Against Torture (“CAT”). In re Daki Sherpa, No.

16 A089 198 143 (B.I.A. Mar. 21, 2013), aff’g No. A089 198 143

17 (Immig. Ct. N.Y. City Jan. 6, 2011). We assume the parties’

18 familiarity with the underlying facts and procedural history

19 of this case. 

20 Because the BIA did not affirm the IJ’s adverse

21 credibility finding, we review the IJ’s decision as modified

22 and supplemented by the BIA. See Xue Hong Yang v. U.S.

23 Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen

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

25 applicable standards of review are well-established. See

2
1 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder,

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

3 As the government argues, Sherpa failed to exhaust her

4 claim of past persecution, her eligibility for CAT relief,

5 and her assertion of a “pattern or practice” of persecution

6 by Maoists in Nepal. Nor does she adequately raise her past

7 persecution or CAT claims in her brief. Therefore, our

8 review is limited to Sherpa’s claim that she has a well9 founded fear of future persecution by Maoists. See Lin

10 Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 124 (2d Cir.

11 2007); Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir. 2006). 

12 Sherpa may establish a well-founded fear of future

13 persecution by showing that she will be singled out for

14 persecution. 8 C.F.R. § 1208.13(b)(2)(C)(iii) (asylum). To

15 meet her burden, Sherpa must show a subjective fear of

16 future persecution and that her fear is objectively

17 reasonable. See Ramsameachire v. Ashcroft, 357 F.3d 169,

18 178 (2d Cir. 2004). 

19 Substantial evidence supports the agency’s ruling that

20 Sherpa did not establish an objectively reasonable fear of

21 future persecution because she was not harmed while she

22 lived in Nepal and her husband has remained unharmed for

3
1 nine years. Sherpa acknowledges in her brief that her

2 family has not been harmed. The ability of similarly

3 situated family members to avoid harm over a significant

4 time period “cuts against” a finding of a well-founded fear. 

5 See Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir.

6 1999). Sherpa’s testimony established that the Maoists had

7 sought to recruit both her and her husband. Thus, she and

8 her husband were similarly situated and his lack of harm in

9 Nepal was a proper factor for the agency to consider in

10 determining that she did not establish an objectively

11 reasonable fear of future persecution. Id.

12 Sherpa also argues that the BIA failed to consider

13 country reports, which established that Maoists regularly

14 persecute their enemies. We presume that the agency “has

15 taken into account all of the evidence before [it], unless

16 the record compellingly suggests otherwise.” Xiao Ji Chen

17 v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d Cir.

18 2006). Sherpa has not cited to any specific country

19 conditions evidence to support her allegations. Moreover,

20 even if the country reports contain the information Sherpa

21 attributes to them, they do not undermine the agency’s

22 ruling. Because Sherpa’s claim of future persecution is

23 premised on being singled out for persecution--as opposed to

4
1 a pattern or practice of persecution--the Maoists’ general

2 persecution of their “enemies” does not establish that

3 Sherpa, individually, will be targeted in the future for

4 harm rising to the level of persecution. 

5 Given Sherpa’s failure to show a well-founded fear of

6 persecution as needed for asylum, she was necessarily unable

7 to meet the higher standard for withholding of removal. See

8 Lecaj v. Holder, 616 F.3d 111, 119-20 (2d Cir. 2010). 

9 For the foregoing reasons, the petition for review is

10 DENIED.

11 FOR THE COURT: 

12 Catherine O’Hagan Wolfe, Clerk

13

14

5