19-82

Bhattrai v. Garland

BIA

Conroy, IJ

A205 647 151

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 10th 4 day of February, two thousand twenty5 two.

6

7 PRESENT:

8 REENA RAGGI,

9 GERARD E. LYNCH,

10 DENNY CHIN,

11 Circuit Judges.

12 _____________________________________

13

14 KABITA BHATTRAI,

15 Petitioner,

16

17 v. 19-82

18 NAC

19 MERRICK B. GARLAND, UNITED 

20 STATES ATTORNEY GENERAL,

21 Respondent.

22 _____________________________________

23

24 FOR PETITIONER: Ramesh K. Shrestha, New York, NY.

25

26 FOR RESPONDENT: Jody H. Hunt, Assistant Attorney 

27 General; Ernesto H. Molina, Jr. , 

28 Deputy Director; Nancy F. Safavi, 
2

1 Trial Attorney, Office of 

2 Immigration Litigation, United 

3 States Department of Justice, 

4 Washington, DC.

5 UPON DUE CONSIDERATION of this petition for review of a 

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

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

8 is DENIED.

9 Petitioner Kabita Bhattrai, a native and citizen of

10 Nepal, seeks review of a December 13, 2018, decision of the 

11 BIA affirming a November 9, 2017, decision of an Immigration 

12 Judge (“IJ”) denying asylum, withholding of removal, and 

13 protection under the Convention Against Torture (“CAT”). In 

14 re Kabita Bhattrai, No. A 205 647 151 (B.I.A. Dec. 13, 2018), 

15 aff’g No. A 205 647 151 (Immig. Ct. N.Y. City Nov. 9, 2017). 

16 We assume the parties’ familiarity with the underlying facts 

17 and procedural history.

18 We have considered both the IJ’s and the BIA’s opinions 

19 “for the sake of completeness.” Wangchuck v. Dep’t of 

20 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The 

21 applicable standards of review are well established. See

22 8 U.S.C. § 1252(b)(4)(B); Paloka v. Holder, 762 F.3d 191, 195 

23 (2d Cir. 2014) (reviewing factual findings under the
3

1 substantial evidence standard and questions of law de novo).

2 An asylum applicant must show that she has suffered past 

3 persecution, or has a well-founded fear of future 

4 persecution, on account of race, religion, nationality, 

5 membership in a particular social group, or political 

6 opinion. See 8 U.S.C. § 1158(b)(1)(B)(i); 8 C.F.R. 

7 § 1208.13(b). Past persecution creates a rebuttable 

8 presumption of a “well-founded fear of [future] persecution 

9 on the basis of the original claim.” 8 C.F.R. § 

10 1208.13(b)(1). The Government may rebut that presumption 

11 where a preponderance of the evidence shows that the applicant 

12 could avoid future persecution “by relocating to another part 

13 of the applicant’s country of nationality . . . , and under 

14 all the circumstances, it would be reasonable to expect the 

15 applicant to do so.” 8 C.F.R. § 1208.13(b)(1)(i)(B); see 

16 also Matter of D-I-M-, 24 I. & N. Dec. 448, 450–51 (B.I.A. 

17 2008) (discussing the burden shifting framework).

18 The record supports the agency’s conclusion that Bhattrai 

19 could relocate within Nepal to avoid future persecution on 

20 account of her caste and that it would be reasonable for her 

21 to do so. See 8 C.F.R. § 1208.13(b)(1)(i)(B); Singh v. BIA, 
4

1 435 F.3d 216, 219 (2d Cir. 2006) (“Asylum in the United States 

2 is not available to obviate re-location to sanctuary in one’s 

3 own country.”). Factors relevant in determining the 

4 reasonableness of relocation include “whether the applicant 

5 would face other serious harm in the place of suggested 

6 relocation; any ongoing civil strife within the country; 

7 administrative, economic, or judicial infrastructure; 

8 geographical limitations; and social and cultural 

9 constraints, such as age, gender, health, and social and 

10 familial ties.” 8 C.F.R. § 1208.13(b)(3) (2018)1; Singh v. 

11 Garland, 11 F.4th 106, 117–118 (2d Cir. 2021). 

12 The agency considered the relevant factors, and the 

13 following facts support the agency’s decision. Bhattrai’s 

14 parents moved from her home village to Kathmandu in January 

15 2016, they live there with her children, and they have not 

16 been harassed or threatened in the time that they have lived 

17 in Kathmandu. Her family appeared to have sufficient 

18 financial resources to live in Kathmandu because her father 

19 was able to pay for her trip to the United States. Although 

1 This version of the regulation was in effect until November 2018, including

at the time of the IJ’s decision in this case. 
5

1 neighbors from Bhattrai’s village called and told her father 

2 that people from other castes were still looking for her and 

3 she should not come back, there were no threats of harm to 

4 her or her family if they remained in Kathmandu. The Chhetri 

5 caste, of which Bhattrai was a member, is the dominant group 

6 in Kathmandu, and is the second highest caste in Nepal. The 

7 2015 U.S. State Department Human Rights Report for Nepal 

8 reflects political violence in Nepal, but it does not indicate 

9 that such violence is directed against the Chhetri caste. 

10 Moreover, Bhattrai herself lived unharmed in Kathmandu for 

11 three months before coming to the United States. 

12 The record does not support Bhattrai’s challenges to the 

13 IJ’s determination. She contends that the IJ discounted her 

14 testimony that her family was in hiding and that she would be 

15 unable to get a job to support her family in Kathmandu. 

16 However, the record supports the IJ’s determination because 

17 Bhattrai’s testimony was ambiguous about living in hiding 

18 given her testimony that her two younger children attended

19 school and her oldest child was in college and worked in a 

20 restaurant. Bhattrai also argues that the IJ 

21 mischaracterized her family’s financial resources, but, to 
6

1 the contrary, she testified that her father paid for 

2 everything for her even though he was not wealthy and she did 

3 not provide a clear statement of how her father financed her 

4 trip to the United States. And although Bhattrai claimed 

5 that her family would have no financial resources in 

6 Kathmandu, she had worked in a factory in her home village

7 and her son works in a restaurant in Kathmandu. 

8 Finally, Bhattrai argues that the agency erred by failing 

9 to conduct a separate analysis of her CAT claim. However, 

10 the agency’s determination that the Government had rebutted 

11 the presumption of a well-founded fear of future harm as 

12 required to state an asylum claim “necessarily” resolved 

13 Bhattrai’s claims for both withholding of removal and CAT 

14 relief, which require a greater likelihood of persecution or 

15 torture. Lecaj v. Holder, 616 F.3d 111, 119–20 (2d Cir. 

16 2010); see also 8 C.F.R. § 1208.16(c)(3)(ii) (providing that 

17 ability to relocate is a factor to be considered in 

18 determining the risk of torture). 

19 In sum, the agency’s conclusion that Bhattrai could 

20 reasonably relocate within Nepal is supported by substantial 

21 evidence because her risk of harm is limited to her home 
7

1 village and her parents and children have been able to live 

2 safely in Kathmandu. See 8 C.F.R. § 1208.13(b)(1)(i)(B), 

3 1208.16(c)(3)(ii).

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