19

- 82 Bhattrai v. Garland BIA Conroy, IJ A 205 647 151 

### 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.**
**At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the**  **Thurgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 1**  **0 t**  **h da**  **y of F**  **e b**  **r u**  **a r**  **y , two thousand**  **twenty**
  4 ** two.** 5 6 **PRESENT:** 7 **REENA RAGGI ,**  8 **GERARD E. LYNCH ,**  9 **DENNY CHIN ,**  10 **Circuit Judges.** 11

**_____________________________________** 12 13 **KABITA BHATTRAI ,**  14 **Petitioner ,**  15 16
**v. 19** 

**- 82**  17 **NAC** 18 **MERRICK B. GARLAND ,**  **UNITED** 19 **STATES ATTORNEY GENERAL,** 20 **Respondent**

**.** 21

**_____________________________________** 22 23 **FOR PETITIONER :**  Ramesh K. Shrestha , New York, NY. 24 25 **FOR RESPONDENT:** Jody H. Hunt , Assistant Attorney 26 General ; Ernesto H. Molina, Jr. , 27 Deputy Director; Nancy F. Safavi , 282 Trial Attorney, Office of 1 Immigration Litigation, United 2 States Department of Justice, 3 Washington, D C. 4
UPON DUE CONSIDERATION of this petition for review of a 5
Board of Immigration Appeals (“BIA”) decision, it is hereby 6
ORDERED, ADJUDGED, AND DECREED that the petitio n for review 7

is DENIED

. 8

Petitioner Kabi ta Bhattrai , a native and citizen of 9
Nepal , seeks review of a December 13, 2018 , decision of the 10

BIA affirming a November 9, 2017 , decision of an Immigration 11
Judge (“IJ” ) denying asylum, withholding of removal, and 12
protection under the Convention Against Torture (“CAT”)

. In 13

re Kabita Bhattrai , No. A 205 647 151 (B.I.A. Dec. 13, 2018 ), 14
aff’g No. A 205 647 151 (Immig. Ct. N.Y. City Nov. 9, 2017 ). 15
We assume the parties’ familiarity with the underlying facts 16
and procedural history

. 17

We have consider ed both the IJ’s and the BIA’s opinions 18
“for the sake of completeness.” Wangchuck v. Dep’t of 19

Homeland Sec. , 448 F.3d 524, 528 (2d Cir. 2006). The 20
applicable standards of review are well established. See 21

8 U.S.C. § 1252(b)(4)(B); Paloka v. Holde r , 762 F.3d 191, 195 22
(2d Cir. 2014) (reviewing factual findings under the 233 substantial evidence standard and questions of law de novo). 1
An asylum applicant must show that she has suffered past 2
persecution, or has a well

- founded fear of future 3
persecution, on account of race, religion, nationality, 4
membership in a particular social group, or political 5
opinion. See 8 U.S.C. § 1158(b)(1)(B)(i); 8 C.F.R. 6

§ 1208.13(b). Past persecution creates a rebuttable 7
presumption of a “ well

- founded fear of [ future ] persecution 8
on the basis of the original claim. ” 8 C.F.R. § 9
1208.13(b)(1). The Government may rebut that presumption 10

where a preponderance of the evidence shows that the applicant 11
could avoid future persecution “by relocatin g to another part 12

of the applicant’s country of nationality . . . , and under 13
all the circumstances, it would be reasonable to expect the 14
applicant to do so.” 8 C.F.R. § 1208.13(b)(1)(i)(B); see 15

also Matter of D

- I

- M

- , 24 I. & N. Dec. 448, 450

– 51 (B.I.A. 16

2 008) (discussing the burden shifting framework). 17
The record supports the agency’s conclusion that Bhattrai 18
could relocate within Nepal to avoid future persecution on 19

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

to do so. See 8 C.F.R. § 1208.13(b)(1)(i)(B); Singh v. BIA , 214 435 F.3d 216, 219 (2d Cir. 2006) (“Asylum in the United States 1

is not available to obviate re

- location to sanctuary in one’s 2
own country.”). Factors relevant in determining the 3
reasonableness of relocation include “whether the applicant 4

would face other serious harm in the place of suggested 5
relocation; any ongoing civil strife within the country; 6
administrative, economic, or judicial infrastructure; 7
geographical limitations; and social and cultural 8
constraints, such as age, gender, health, and social an d 9

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

Garland , 11 F.4th 106, 117

– 118 (2d Cir. 2021). 11

The agency considered the relevant factors , and the 12
following facts support the agency’s decision

. Bhattrai’s 13
parents moved from her home v illage to Kathmandu in January 14

2016 , they live there with her children , and they have not 15
been harassed or threatened in the time that they have lived 16

in Kathmandu. Her family appeared to have sufficient 17

financial resources to live in Kathmandu because her father 18
was able to pay for her trip to the United States. Although 19

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

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

she should not come back, there were no threats of har m to 3
her or her family if they remained in Kathmandu. T he Chhetri 4

caste , of which Bhattrai was a member , is the dominant group 5
in Kathmandu, and is the second highest caste in Nepal. The 6
2015 U.S. State Department Human Rights Report for Nepal 7

reflects p olitical violence in Nepal, but it does not indicate 8

that such violence is directed against the Chhetri caste. 9
Moreover, Bhattrai herself lived unharmed in Kathmandu for 10
three months before coming to the United States

. 11
The record does not support Bhatt rai’s challenges to the 12

IJ’s determination. She contends that the IJ discount ed her 13
testimony that her family was in hiding and that she would be 14
unable to get a job to support her family in Kathmandu. 15
However, the record supports the IJ’s determination because 16
Bhattrai’s testimony was ambiguous about living in hiding 17
given her testimony that her two younger children attended 18

school and her oldest child wa s in college and worked in a 19

restaurant

. Bhattrai also argues that the IJ 20

mischaracterized her family’s financial resources, but, to 216 the contrary, she testified that her father paid for 1
everything for her even though he was not wealthy and she did 2
not provide a clear statement of how her father finance d her 3
trip to the United States. A nd al though B hattrai claimed 4
that her family would have no financial resources in 5

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

and her son works in a restaurant in Kathmandu

. 7
Finally, Bhattrai argues that the agency erred by failing 8

to conduct a separate analysis of her CAT claim. However, 9
the agency’s determination that the Government had rebutted 10
the presumption of a well

- founded fear of future harm as 11
required to state an asylum claim “necessarily” resolved 12

Bhattrai’s claims for both withho lding of removal and CAT 13
relief, which require a greater likelihood of persecution or 14

torture. Lecaj v. Holder , 616 F.3d 111, 119

– 20 (2d Cir. 15

2010) ; see also 8 C.F.R. § 1208.16(c)(3)(ii) (providing that 16
ability to relocate is a factor to be considered in 17
determining the risk of torture)

. 18
In sum, the agency’s conclusion that Bhattrai could 19
reasonably relocate within Nepal is supported by substantial 20

evidence because her risk of harm is limited to her home 217 village and her parents and children have been able to live 1
safely in Kathmandu. See 8 C.F.R. § 1208.13(b)(1)(i)(B) , 2
1208.16(c)(3)(ii)

. 3
For the foregoing reasons, the petition for review is 4

DENIED

. All pending motions and applications are DENIED and 5
stays VACATED. 6

FOR THE COURT: 7 Catherine O ’ Hagan Wolfe , 8 Clerk of Court 9