10-4935-ag

Gurung v. Holder 

 

BIA

Sichel, IJ

A099 073 331

 A099 073 332

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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At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Daniel Patrick Moynihan

United States Courthouse, 500 Pearl Street, in the City of

New York, on the 17th day of November, two thousand eleven.

PRESENT:

DENNIS JACOBS,

Chief Judge,

PETER W. HALL,

GERARD E. LYNCH,

 Circuit Judges.

_______________________________________

TEKENDRA GURUNG, JAMUNA GURUNG,

Petitioners, 

 v. 10-4935-ag

NAC 

ERIC H. HOLDER, JR., UNITED STATES

ATTORNEY GENERAL,

Respondent.

_______________________________________

FOR PETITIONERS: Visuvanathan Rudrakumaran, New York,

NY.

FOR RESPONDENT: Tony West, Assistant Attorney

General; Luis E. Perez, Senior
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Litigation Counsel; Juria L. Jones,

Trial Attorney, Office of

Immigration Litigation, United

States Department of Justice,

Washington, D.C.

UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

Petitioners, natives and citizens of Nepal, seek review

of a November 12, 2010, order of the BIA affirming the April

10, 2008, decision of Immigration Judge (“IJ”) Helen Sichel,

denying their application for asylum, withholding of

removal, and relief under the Convention Against Torture

(“CAT”). In re Tekendra Gurung, Jamuna Gurung, Nos. A099

073 331/332 (B.I.A. Nov. 12, 2010), aff’g Nos. A099 073

331/332 (Immig. Ct. N.Y. City Apr. 10, 2008). We assume the

parties’ familiarity with the underlying facts and

procedural history in this case.

Under the circumstances of this case, we have reviewed

the IJ’s decision as supplemented by the BIA. See Yan Chen

v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The

applicable standards of review are well-established. See 8

U.S.C. § 1252(b)(4); Yanqin Weng v. Holder, 562 F.3d 510,

513 (2d Cir. 2009). Because Petitioners do not challenge

the agency’s pretermission of their asylum application, the

only issue before us is whether the agency erred in denying

Petitioners’ application for withholding of removal and CAT

relief.

Eligibility for withholding of removal requires that it

is more likely than not that the applicant’s “life or

freedom would be threatened in [his] country . . . on

account of race, religion, nationality, membership in a

particular social group, or political opinion.” 8 C.F.R.

§ 1208.16(b). In support of Petitioners’ claim of political

persecution, Gurung submitted letters from his mother and a

municipal office stating that Maoists threatened his mother

and sought to discuss “personal matters” with him, but the

letters do not assert any political motivation for the

Maoists’ threats. Gurung also testified that Maoists
3

indiscriminately demanded money from individuals, and that

the Maoists targeted Gurung due to their alleged belief that

he was corrupt. In light of that testimony, the IJ

reasonably concluded that Gurung failed to establish that he

would be targeted on account of a protected ground. 

Petitioners contend that the agency failed to give

proper weight to Gurung’s testimony regarding NCP officials’

warning that the Maoists targeted Gurung because he had

participated as a NCP member. However, the IJ reasonably

found that the conversation was insufficient alone to

establish the requisite nexus between the attempted

extortion and Gurung’s NCP activities. See Xiao Ji Chen v.

U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (the

weight to be accorded to evidence lies largely within the

agency’s discretion). 

Moreover, Gurung testified that he could safely reside

in Nepal if he went into hiding, and that his mother (who

had also been a victim of attempted extortion by the

Maoists) and children have continued living there unharmed. 

It was not improper for the agency to discount Petitioners’

claim that his life or freedom would be endangered in Nepal,

in light of the fact that a similarly-situated family member

remained there unharmed. See Melgar de Torres v. Reno, 191

F.3d 307, 313 (2d Cir. 1999). Petitioners’ argument that

the agency failed to consider the various articles and State

Department reports they submitted is also unavailing. Those

materials indicate nothing more particular than that Maoists

indiscriminately committed human rights violations. In any

event, the agency is not required to “expressly parse or

refute on the record each individual . . . piece of

evidence” so long as it makes adequate findings. See Wei

Guang Wang v. BIA, 437 F.3d 270, 273-75 (2d Cir. 2006)

(quotation marks omitted); see also Xiao Ji Chen, 471 F.3d

at 338 n.17. 

Substantial evidence, therefore, supports the agency’s

finding that Petitioners failed to demonstrate a likelihood

that Gurung would be endangered, let alone tortured, in

Nepal. Thus, there is no basis on which to vacate the BIA’s

decision in that regard. See Yanqin Weng, 562 F.3d at 513. 

Furthermore, the agency did not err in denying CAT relief

because Petitioners’ CAT claims were based on the same
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factual predicate as their withholding claims. See Paul v.

Gonzales, 444 F.3d 148, 155-56 (2d Cir. 2006). 

For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, any stay of

removal that the Court previously granted in this petition

is VACATED, and any pending motion for a stay of removal in

this petition is DENIED as moot. Any pending request for

oral argument in this petition is DENIED in accordance with

Federal Rule of Appellate Procedure 34(a)(2), and Second

Circuit Local Rule 34.1(b).

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk