18-2443

Lama v. Barr

BIA

Poczter, IJ

A205 621 461

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 

2 for the Second Circuit, held at the Thurgood Marshall 

3 United States Courthouse, 40 Foley Square, in the City of 

New York, on the 17th 4 day of September, two thousand twenty.

5

6 PRESENT:

7 JON O. NEWMAN,

8 BARRINGTON D. PARKER,

9 MICHAEL H. PARK,

10 Circuit Judges.

11 _____________________________________

12

13 CHHIRING LAMA,

14 Petitioner,

15

16 v. 18-2443

17 NAC

18 WILLIAM P. BARR, UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Dilli Raj Bhatta, Bhatta Law & 

24 Associates, New York, NY.

25

26 FOR RESPONDENT: Joseph H. Hunt, Assistant 

27 Attorney General; Claire L. 

28 Workman, Senior Litigation 

29 Counsel; John F. Stanton, Trial 

30 Attorney, Office of Immigration 

31 Litigation, United States 

32 Department of Justice, Washington, 

33 DC.
2

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 

4 is DENIED.

5 Petitioner Chhiring Lama, a native and citizen of Nepal, 

6 seeks review of a July 24, 2018, decision of the BIA affirming 

7 a July 26, 2017, decision of an Immigration Judge (“IJ”) 

8 denying Lama’s application for asylum, withholding of 

9 removal, and relief under the Convention Against Torture 

10 (“CAT”). In re Chhiring Lama, No. A 205 621 461 (B.I.A. July 

11 24, 2018), aff’g No. A 205 621 461 (Immig. Ct. N.Y. City July 

12 26, 2017). We assume the parties’ familiarity with the 

13 underlying facts and procedural history.

14 We have reviewed the decision of the IJ as supplemented 

15 by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d 

16 Cir. 2005). The applicable standards of review are well 

17 established. See Lecaj v. Holder, 616 F.3d 111, 114 (2d Cir. 

18 2010).

19 To establish eligibility for asylum, Lama was required 

20 to show that she suffered past persecution, or that she has 

21 a well-founded fear of future persecution, on account of her 

22 race, religion, nationality, membership in a particular 
3

1 social group, or political opinion. 8 U.S.C. §§ 1101(a)(42), 

2 1158(b)(1)(A), (B)(i). When a petitioner establishes past 

3 persecution, there is a presumption of a well-founded fear of 

4 future persecution on the basis of the petitioner’s original 

5 claim. 8 C.F.R. § 1208.13(b)(1). The presumption of a well6 founded fear of persecution may be rebutted if the Government 

7 shows, by a “preponderance of the evidence,” that “[t]here 

8 has been a fundamental change in circumstances such that the 

9 applicant no longer has a well-founded fear of persecution.” 

10 8 C.F.R. § 1208.13(b)(1)(i), (ii); see also Lecaj, 616 F.3d 

11 at 115. The agency reasonably concluded that, even assuming 

12 Lama was credible and had suffered past persecution, any 

13 presumption of a well-founded fear of future persecution had 

14 been rebutted. 

15 The agency considered the State Department’s Human Rights 

16 Reports on Nepal as well as Lama’s evidence and reasonably 

17 found as follows. The 10-year armed conflict between the 

18 Maoist insurgency and the government of Nepal ended in 2006

19 when Maoists signed a peace accord and joined the government. 

20 A breakaway Maoist faction committed some acts of political 

21 violence and intimidation during the 2013 elections, but the 

22 elections were fair and free of irregularities. Maoists 
4

1 purportedly beat Lama’s grandmother for her political 

2 canvasing in the 2013 elections. By 2015, the government had 

3 promulgated a constitution, which caused political unrest 

4 among an ethnic minority group in the Terai region of Nepal. 

5 A comparison of the State Department’s Human Rights 

6 Reports for 2011, which was when Lama was attacked by Maoists, 

7 and 2016, shows the extent to which conditions improved. The 

8 2011 report states that Maoists committed acts of violence

9 and extortion throughout the year, although the number of 

10 such incidents had markedly decreased from previous years. 

11 By comparison, the 2016 report does not report that Maoists 

12 committed any such acts during the year. Therefore, the 

13 country conditions evidence supports the agency’s finding 

14 that there has been a fundamental change in circumstances 

15 since the Maoists assaulted Lama in 2011. See Lecaj, 616 

16 F.3d at 115–16.

17 Accordingly, the agency did not err in concluding that 

18 circumstances in Nepal had fundamentally changed such that 

19 Lama does not have a well-founded fear of political 

20 persecution. See 8 C.F.R. § 1208.13(b)(1)(i)(A), (ii); see 

21 also Lecaj, 616 F.3d at 116–19. Because Lama does not have 

22 a well-founded fear of persecution, the agency did not err in 
5

1 denying asylum, withholding of removal, and CAT relief 

2 because all three claims were based on the same factual 

3 predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d 

4 Cir. 2006). 

5 The agency also did not err in finding that Lama did not 

6 establish her eligibility for humanitarian asylum. “[I]f 

7 [an] alien ‘has demonstrated compelling reasons for being 

8 unwilling or unable to return to the country arising out of 

9 the severity of the past persecution,’ [s]he is still eligible 

10 for asylum even though [s]he does not have a well-founded 

11 fear of future persecution.” Jalloh v. Gonzales, 498 F.3d 

12 148, 151 (2d Cir. 2007) (quoting 8 C.F.R. 

13 § 1208.13(b)(1)(iii)(A)). To merit a grant of humanitarian 

14 asylum, an applicant “must establish both ‘the severe harm 

15 and the long-lasting effects of that harm.’” Id. at 151 

16 (quoting In re N-M-A-, 22 I. & N. Dec. 312, 326 (B.I.A. 

17 1998)). Because Lama did not assert that she suffered any 

18 “long-lasting physical or mental effects” from the harm she 

19 suffered in Nepal, the agency did not err in her humanitarian 

20 asylum. Id. at 152.

21 We do not reach the BIA’s decision insofar as it declined 

22 to remand for consideration of new evidence because Lama does 
6

1 not challenge that ruling. See Yueqing Zhang v. Gonzales, 

2 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005) (finding 

3 abandoned issues and claims not raised in opening brief). 

4 For the foregoing reasons, the petition for review is 

5 DENIED. All pending motions and applications are DENIED and 

6 stays VACATED.

7 FOR THE COURT: 

8 Catherine O’Hagan Wolfe,

9 Clerk of Court

10