16-284 Thapachhetri v. Sessions BIA Straus, IJ A206 233 429 

### 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 for**  1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **16 th**  **day of May, two thousand seventeen.** 4 5 **PRESENT:** 6 **JON O. NEWMAN,** 7 **JOSÉ A. CABRANES,** 8 **GERARD E. LYNCH,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **RUDRA NARSHING THAPACHHETRI, AKA** 13 **RUDRA NARSHING THAPACHAETRI,** 14 Petitioner **,** 15 16 **v. 16-284** 17 **NAC** 18 **JEFFERSON B. SESSIONS III, UNITED** 19 **STATES ATTORNEY GENERAL,** 20 Respondent **.** 21

**_____________________________________** 22 23 **FOR PETITIONER:** Khaghendra Gharti-Chhetry, Chhetry 24 & Associates, P.C., New York, NY. 25 26 **FOR RESPONDENT:** Benjamin C. Mizer, Principal Deputy 27 Assistant Attorney General; Kiley 28 Kane, Senior Litigation Counsel; 29 Sergio Sarkany, Trial Attorney, 30 Office of Immigration Litigation, 31 United States Department of Justice, 32 Washington, DC. 332 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review is 3

DENIED. 4 Petitioner Rudra Narshing Thapachhetri, a native and 5 citizen of Nepal, seeks review of a December 31, 2015, decision 6 of the BIA, affirming a June 16, 2014, decision of an Immigration 7 Judge (“IJ”) denying Thapachhetri’s applic ation for asylum, 8 withholding of removal, and relief under the Convention Against 9 Torture (“CAT”). In re Rudra Narshing Thapachhetri, No. A206 10 233 429 (B.I.A. Dec. 31, 2015), aff’g No. A206 233 429 (Immig. 11 Ct. Hartford June 16, 2014). We assume the parties’ 12 familiarity with the underlying facts and procedural history 13 in this case. 14 Under the circumstances of this case, we have reviewed the 15 decisions of both the BIA and the IJ “for the sake of 16 completeness.” Wangchuck v. Dep’t of Homeland Sec. , 448 F.3d 17 524, 528 (2d Cir. 2006). The applicable standards of review 18 are well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin 19 Weng v. Holder , 562 F.3d 510, 513 (2d Cir. 2009). 20

**I. Change in Conditions**  21 It is undisputed that Thapachhetri established past 22 persecution in Nepal on account of his membership in the Nepali 233 Congress Party (“NCP”). Accordingly, he benefits from a 1 presumption of a “well-founded fear of [future] persecution on 2 the basis of the original claim.” 8 C.F.R. § 1208.13(b)(1). 3 However, the Government may rebut this presumption if, among 4 other things, “[t]here has been a fundamental change in 5 circumstances such that the applicant no longer has a 6 well-founded fear of persecution in [his] country of 7 nationality.” Id. § 1208.13(b)(1)(i)(A). The Government 8 “bear[s] the burden of establishing by a preponderance of the 9 evidence” the fundamental change in circumstances. Id. 10 § 1208.13(b)(1)(ii). “To determine whether the government has 11 rebutted the presumption entails ‘an individualized analysis 12 of whether the changes in conditions in [the relevant country] 13 were so fundamental that they are sufficient to rebut the 14 presumption that [an applicant’s] fear of persecution is well 15 founded.’” Lecaj v. Holder , 616 F.3d 111, 115 (2d Cir. 2010) 16 (quoting Passi v. Mukasey , 535 F.3d 98, 103-04 (2d Cir. 2008)). 17 We review the agency’s factual findings regarding changed 18 country conditions for substantial evidence. Id. at 114-115; 19 8 U.S.C. § 1252(b)(4)(B). 20 We conclude that the agency’s finding that the Government 21 demonstrated fundamentally changed cou ntry conditions in Nepal 22 rests on substantial evidence. In November 2013, following an 234 election which, according to a State Department report, 1 “[d]omestic and international observers characterized . . . as 2 credible and well-conducted” and “essentially free and fair,” 3 the NCP gained control of the majority of seats in parliament. 4 While there are some local articles in the record reporting that 5 members of the Maoist party “committed acts of political 6 violence and intimidation” leading up to the November 2013 7 election, the record evidence does not report post-election 8 violence by Maoists against NCP members. Cf. Lecaj , 616 F.3d 9 at 117 (ruling that State Department report “reflect[ing] 10 ongoing police abuses” was insufficient to establish 11 well-founded fear because the report “d[id] not link those 12 abuses to [petitioner’s] ethnicity, religion, [or] political 13 opinion”). In fact, as the agency observed, the evidence 14 suggests that the tables have turned and that the NCP has been 15 threatening Maoist party members. The agency’s finding is 16 supported by the record, specifically a March 2014 joint press 17 release from two Maoist party factions complaining of the NCP’s 18 arrest and detention of several Maoist party members. 19 Thapachhetri insists that, notwithstanding the NCP’s 20 November 2013 victory, there remains a pattern or practice of 21 persecution of NCP members, as evidenced by the history of 22 Maoist attacks. We have observed that “[t]he removal of a 235 persecuting despot might vitiate an asylum applicant’s 1 well-founded fear of persecution, but in many cases lingering 2 elements of a despot’s regime may still pose a threat to an 3 applicant’s life and safety.” Burger v. Gonzales, 498 F.3d 4 131, 135 (2d Cir. 2007). But there is little record evidence 5 about violence against the NCP generally, let alone evidence 6 sufficient to establish a pattern or practice of persecution 7 of NCP members by Maoists. Accordingly, the agency’s 8 conclusion that the Government rebutted the presumption of 9 future persecution is supported by substantial evidence. 10 Lecaj , 616 F.3d at 115; 8 U.S.C. § 1252(b)(4)(B). 11 Thapachhetri also argues that the agency erred in not 12 addressing his individualized fear of persecution. Absent a 13 presumption of future persecution, “[a]n asylum applicant can 14 show a well-founded fear of future persecution in two ways: 15 (1) by demonstrating that he or she ‘would be singled out 16 individually for persecution’ if returned, or (2) by proving 17 the existence of a ‘pattern or practice in [the] . . . country 18 of nationality . . . of persecution of a group of persons 19 similarly situated to the applicant’ and establishing his or 20 her ‘own inclusion in, and identification with, such group.’” 21 Y.C. v. Holder , 741 F.3d 324, 332 (2d Cir. 2013) (quoting 8 22 C.F.R. § 1208.13(b)(2)(iii)). 236 Thapachhetri did not demonstrate that he would be singled 1 out individually for persecution in N epal given the change in 2 circumstances or that there is a pattern or practice of 3 persecution of NCP members. His fear is based on his assertion 4 that “there is a network of Maoists all over Nepal,” as well 5 as a threatening phone call his wife received after he left 6 Nepal. However, Thapachhetri testified that his wife and 7 children reside in Nepal unharmed. See Jian Xing Huang v. U.S. 8

INS , 421 F.3d 125, 129 (2d Cir. 2005) (“In the absence of solid 9 support in the record . . . , [an applicant’s] fear is 10 speculative at best.”); Melgar de Torres v. Reno , 191 F.3d 307, 11 313 (2d Cir. 1999) (finding alleged future fear diminished when 12 similarly situated individuals are able to live unharmed in 13 asylum applicant’s native country). 14

**II. Humanitarian Asylum**  15 Thapachhetri argues that he is eligible for humanitarian 16 asylum because he “is mentally scarred” due to the “brutality 17 of [his] past harm.” To merit a grant of humanitarian asylum, 18 an applicant “must establish both ‘the severe harm and the 19 long-lasting effects of that harm.’” Jalloh v. Gonzales , 498 20 F.3d 148, 151-52 (2d Cir. 2007) (quoting In re N-M-A- , 22 I. 21 & N. Dec. 312, 326 (B.I.A. 1998)); 8 C.F.R. 22 § 1208.13(b)(1)(iii)(A). 237 The agency’s conclusion that the severity of 1 Thapachhetri’s past harm was insufficient for a grant of 2 humanitarian asylum likewise rests on substantial evidence. 3 In 2012, he was treated at the hospital for four hours for 4 unidentified injuries. And in 2013, he suffered injuries to 5 his shoulder, chest, and arms, for which he was treated with 6 a pain killer, IV fluid, and bandages, and then discharged 7 within three hours because his “condition improved.” He did 8 not testify to any long-lasting effects stemming from these 9 incidents. Because Thapachhetri “provided no evidence of 10 long-lasting physical or mental effects of his persecution that 11 would support his insistence that he not be returned to” Nepal, 12 the agency reasonably de nied humanitarian asylum. Jalloh , 498 13 F.3d at 152. 14

**III. CAT Relief**  15 Finally, Thapachhetri argues that he is eligible for CAT 16 relief because the background evidence establish “that the 17 Maoists . . . still engage in violence and extortion” with 18 governmental acquiescence, as evidenced by police corruption. 19 Although the agency independently addressed CAT and the parties 20 do the same, the only basis for Thapachhetri’s fear was the same 21 as for asylum and withholding of removal. Accordingly, the 22 agency’s conclusion that that he did not have a well-founded 238 fear of future harm, is dispositive. See Lecaj , 616 F.3d at 1 119-20 (holding that failure to meet burden for asylum precludes 2 showing needed to meet higher burden for withholding of removal 3 and CAT relief). 4 For the foregoing reasons, the petition for review is 5

DENIED. 6

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