20-1457(L)

Adhikari v. Garland

BIA

Sponzo, IJ

A209 870 432

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

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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 

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At a stated term of the United States Court of Appeals 

for the Second Circuit, held at the Thurgood Marshall 

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

New York, on the 31st day of January, two thousand twentythree.

PRESENT:

REENA RAGGI,

RICHARD J. SULLIVAN,

WILLIAM J. NARDINI,

Circuit Judges.

_____________________________________

PRAJMAL ADHIKARI,

Petitioner,

20-1457(L), 

v. 21-6165(Con)

NAC

MERRICK B. GARLAND, UNITED 

STATES ATTORNEY GENERAL,

Respondent.

_____________________________________

FOR PETITIONER: Khagendra Gharti-Chhetry, Esq.,

 New York, NY.

FOR RESPONDENT: Brian Boynton, Acting Assistant 

Attorney General, Civil Division; 
2

Melissa Neiman-Kelting, Assistant 

Director; Jeffrey M. Hartman, 

Trial Attorney, Office of 

Immigration Litigation, United 

States Department of Justice, 

Washington, DC.

UPON DUE CONSIDERATION of these petitions for review of 

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

ORDERED, ADJUDGED, AND DECREED that the petitions for review 

are DENIED.

Petitioner Prajmal Adhikari, a native and citizen of 

Nepal, seeks review of the BIA’s affirmance of an Immigration 

Judge’s (“IJ’s”) denial of asylum, withholding of removal, 

and relief under the Convention Against Torture (“CAT”), see

In re Prajmal Adhikari, No. A 209 870 432 (B.I.A. Apr. 2, 

2020), aff’g No. A209 870 432 (Immigr. Ct. N.Y.C. July 16, 

2018), and of the BIA’s denial of his motion to reopen, see

In re Prajmal Adhikari, No. A209 870 432 (B.I.A. Mar. 3, 

2021). We assume the parties’ familiarity with the 

underlying facts and procedural history.

A. Denial of Asylum and Related Relief

We have considered both the IJ’s and BIA’s decisions. 

See Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 
3

(2d Cir. 2006). We review the agency’s factual findings for 

substantial evidence, and we review questions of law de novo. 

See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 

510, 513 (2d Cir. 2009). 

To establish eligibility for asylum and withholding of 

removal, an applicant must establish past persecution or a 

well-founded fear or likelihood of persecution “on account of 

race, religion, nationality, membership in a particular 

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

see also id. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A); 8 C.F.R. 

§§ 1208.13(b), 1208.16(b). “[P]ersecution is an extreme 

concept that does not include every sort of treatment our 

society regards as offensive.” Mei Fun Wong v. Holder, 633 

F.3d 64, 72 (2d Cir. 2011) (quotation marks omitted). “To 

qualify as persecution the conduct at issue must be 

attributable to the government, whether directly because 

engaged in by government officials, or indirectly because 

engaged in by private persons whom the government is unable 

or unwilling to control.” Singh v. Garland, 11 F.4th 106, 

114 (2d Cir. 2021) (quotation marks omitted). “Under the 

unwilling-or-unable standard, ‘a finding of persecution 
4

ordinarily requires a determination that government 

authorities, if they did not actually perpetrate or incite 

the persecution, condoned it or at least demonstrated a 

complete helplessness to protect the victims.’” Id. at 114-

15 (quoting Galina v. INS, 213 F.3d 955, 958 (7th Cir. 2000)).

Before this court, Adhikari does not challenge the IJ’s 

and BIA’s determinations that he failed to establish the 

Nepali government’s inability or unwillingness to control the 

private actors who attacked him and whom he claims to fear, 

and so he has abandoned any challenge to those findings. See 

Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d Cir. 

2005). Even if Adhikari had not abandoned that argument, we 

would deny review because Adhikari did not present evidence 

sufficient to attribute Maoist activity to the government. 

His unilateral decision not to report attacks to the 

authorities, based on his belief that the police and the 

Maoists were “working with each other” demonstrates only his 

subjective belief that the government condoned the Maoists’ 

conduct. On such a record, neither the IJ nor the BIA was 

required to attribute Adhikari’s attacks to the national 
5

government. See Singh v. Garland, 11 F.4th at 116. 

Because this issue is dispositive of asylum and 

withholding of removal, see id. at 114, we need not reach the 

agency’s alternative dispositive bases for denying those 

forms of relief. 

To the extent Adhikari challenges the denial of CAT 

relief, denial was warranted because the record supports the 

IJ’s and BIA’s conclusions that Adhikari could reasonably

relocate within Nepal to avoid any likelihood of torture. 

See Singh, 11 F.4th at 118 (holding that petitioner’s “ability 

to relocate internally means that he cannot establish [the]

likelihood of torture” necessary to state a claim for CAT 

relief). Adhikari had lived and worked in Kathmandu unharmed 

for more than two years after the Maoists’ attack and for an 

additional three months after the Maoists purportedly 

discovered his location. See Gautam v. Barr, 832 F. App’x 

740, 743 (2d Cir. 2020) (denying review where “there is no 

evidence that [petitioner] encountered Maoists in the four 

months that he lived in Kathmandu before departing for the 

United States, notwithstanding his claim that they had 

discovered his location”); Kandel v. Barr, 832 F. App’x 67, 
6

71 (2d Cir. 2020) (denying review where petitioner had “lived 

unharmed in Kathmandu for approximately a year” before 

entering United States).1 

B. Motion to Reopen

We review the denial of motions to reopen for abuse of 

discretion and any country conditions determinations for 

substantial evidence. Jian Hui Shao v. Mukasey, 546 F.3d 

138, 168–69 (2d Cir. 2008). As the BIA found, Adhikari’s 

October 2020 motion to reopen was untimely because he filed 

it more than six months after the BIA’s April 2020 order of 

removal. See 8 U.S.C. § 1229a(c)(7)(C)(i) (providing 90-day 

deadline for motions to reopen). The time limit for 

reopening may be excused to apply for asylum “based on changed 

country conditions arising in the country of nationality or 

the country to which removal has been ordered, if such 

evidence is material and was not available and would not have 

1 Adhikari argues the IJ erred by failing to discuss evidence of ongoing 

civil strife in Nepal that might undermine the relocation conclusion. 

“[W]e presume that an IJ has taken into account all of the evidence 

before him, unless the record compellingly suggests otherwise,” Xiao Ji 

Chen v. U.S. Dep’t of Just., 471 F.3d 315, 336 n.17 (2d Cir.2006), and 

Adhikari points to no such record evidence here. In any event, Adhikari 

points to no evidence of civil strife that would undermine the IJ’s 

finding.
7

been discovered or presented at the previous proceedings.” 

8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R. 

§ 1003.2(c)(3)(ii). 

Adhikari does not challenge the BIA’s reasonable 

determinations that his country conditions evidence showed a 

continuation rather than a change in conditions in Nepal since 

his hearing before the IJ, and that his family’s interaction 

with Maoists while he was in the United States constituted a 

new personal circumstance that did not excuse the time limit. 

See Yueqing Zhang, 426 F.3d at 541 n.1, 545 n.7; see also 

Weinong Lin v. Holder, 763 F.3d 244, 246–47 (2d Cir. 2014) 

(recognizing that “changed circumstances” standard permitting 

late-filed asylum applications “is more expansive” than 

“change in ‘country conditions’” standard to excuse deadline 

for reopening); In re S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A. 

2007) (“In determining whether evidence accompanying a motion 

to reopen demonstrates a material change in country 

conditions that would justify reopening, [the BIA] compare[s] 

the evidence of country conditions submitted with the motion 

to those that existed at the time of the merits hearing 

below.”). 
8

Adhikari’s only argument on appeal is that the Himalayan 

Times published an article “a few weeks before [his] merits 

hearing before the [IJ]” explaining that, after the events 

experienced by Adhikari, “the Maoists joined the government 

of Nepal as a ruling party, and obtained the control of some 

government ministries, including the Home Ministry, which 

oversees the country’s police departments,” Pet.’s Supp. Br. 

15-16, and that the Maoists’ new status qualifies as a changed 

country condition. Adhikari fails to explain why this 

information was not available to him during the proceedings 

below, in the absence of which there is no reason for us to 

depart from the rule that this court will decide a petition 

“only on the administrative record on which the order of 

removal is based.” 8 U.S.C. § 1252(b)(4)(A); Xiao Xing Ni 

v. Gonzales, 494 F.3d 260, 262 (2d Cir. 2007) (stating that 

court will not remand for consideration of evidence outside 

the record). Nor does Adhikari explain why the Himalayan 

Times article is material given that he had already presented 

the IJ with three other articles discussing the Maoists merger 

with Nepal’s ruling party.

Accordingly, Adhikari’s motion does not fall under 
9

§ 1229a(c)(7)(C)(ii)’s exception to § 1229a(c)(7)(C)(i)’s 

timeliness bar.

For the foregoing reasons, the petitions for review are 

DENIED. All pending motions and applications are DENIED and 

stays VACATED.

FOR THE COURT: 

Catherine O’Hagan Wolfe,

Clerk of Court