18-3274

Chapagai v. Wilkinson

BIA

Lopez Defillo, IJ

A202 138 448

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 United 

3 States Courthouse, 40 Foley Square, in the City of New York, 

on the 17th 4 day of February, two thousand twenty-one.

5

6 PRESENT:

7 ROSEMARY S. POOLER,

8 SUSAN L. CARNEY,

9 MICHAEL H. PARK,

10 Circuit Judges.

11 _____________________________________

12

13 SHANKAR CHAPAGAI, AKA SHANKAR 

14 CHAPAGAIN,

15 Petitioner,

16

17 v. 18-3274

18 NAC

19 ROBERT M. WILKINSON, ACTING 

20 UNITED STATES ATTORNEY GENERAL,

Respondent.1 21

22 _____________________________________

23

24 FOR PETITIONER: Dilli Raj Bhatta, Esq., Bhatta 

25 Law & Associates, New York, NY.

26

1Pursuant to Fed. R. App. P. 43(c)(2), Acting Attorney General Robert M. 

Wilkinson is automatically substituted as Respondent.
2

1 FOR RESPONDENT: Carl McIntyre, Assistant Director; 

2 Brooke Marie Maurer, Trial 

3 Attorney, Office of Immigration 

4 Litigation, United States 

5 Department of Justice, Washington, 

6 DC.

7 UPON DUE CONSIDERATION of this petition for review of a 

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

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

10 is DENIED.

11 Shankar Chapagai, a native and citizen of Nepal, seeks 

12 review of an October 3, 2018, decision of the BIA affirming 

13 an October 23, 2017, decision of an Immigration Judge (“IJ”)

14 denying asylum, withholding of removal, and protection under 

15 the Convention Against Torture (“CAT”). In re Shankar 

16 Chapagai, No. A 202 138 448 (B.I.A. Oct. 3, 2018), aff’g No. 

17 A 202 138 448 (Immig. Ct. N.Y. City Oct. 23, 2017). We assume 

18 the parties’ familiarity with the underlying facts and 

19 procedural history.

20 We have reviewed both the IJ’s and BIA’s decisions “for 

21 the sake of completeness.” Wangchuck v. Dep’t of Homeland 

22 Sec., 448 F.3d 524, 528 (2d Cir. 2006). The applicable 

23 standards of review are well established. See 8 U.S.C. 

24 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d 
3

1 Cir. 2009) (reviewing factual findings for substantial 

2 evidence and questions of law and application of law to fact 

3 de novo).

4 Chapagai alleged that between October and December 2013, 

5 members of the Maoist Party threatened him multiple times and 

6 beat him on one occasion because of his membership in the 

7 Nepali Congress Party. We find no error in the agency’s 

8 conclusion that the past harm did not rise to the level of 

9 persecution. 

10 Past persecution may be based on harm other than threats 

11 to life or freedom, including “non-life-threatening violence 

12 and physical abuse.” Beskovic v. Gonzales, 467 F.3d 223, 226 

13 n.3 (2d Cir. 2006). In assessing whether harms rise to the 

14 level of persecution, we have held that the question of 

15 whether harm rises to the level of persecution “is necessarily 

16 one of degree that must be decided on a case-by-case basis.” 

17 Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d 

18 Cir. 2006). We have described persecution as “an extreme 

19 concept that does not include every sort of treatment our 

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

21 F.3d 64, 72 (2d Cir. 2011) (internal quotation marks omitted). 
4

1 The agency considered Chapagai’s lack of lasting injury and 

2 his choice not to seek professional medical attention. The 

3 agency also examined the context of his harm, including that 

4 the beating was by members of an opposing party rather than 

5 the government, that Chapagai’s fellow villagers were 

6 supporters of his party, and that the police took a report 

7 and offered him assistance. See Jian Qiu Liu v. Holder, 632 

8 F.3d 820, 822 (2d Cir. 2011) (finding no error in BIA’s 

9 conclusion that physical attack by family planning officials 

10 did not rise to the level of persecution where asylum 

11 applicant “suffered only minor bruising” and the attack 

12 happened prior to an arrest by local police); cf. Beskovic,

13 467 F.3d at 226 (requiring that agency “be sensitive to the 

14 fact that even mistreatment that, in other contexts, could 

15 fairly be characterized as . . . harassment, can take on an 

16 entirely different character when officially inflicted on an 

17 individual . . . detained on account of protected grounds” 

18 (internal quotation marks and citation omitted)). 

19 Chapagai argues that the agency did not assess his harm 

20 cumulatively as required. See Manzur v. U.S. Dep’t of 

21 Homeland Sec., 494 F.3d 281, 290 (2d Cir. 2007). However, 
5

1 the IJ acknowledged both the harassment and the physical harm, 

2 and the BIA explicitly concluded that the physical harm 

3 combined with the threats did not rise to the level of 

4 persecution. Because this finding is dispositive as to past 

5 persecution, we do not reach the agency’s alternate finding 

6 that Chapagai did not establish that he was harmed on account 

7 of his political opinion. See INS v. Bagamasbad, 429 U.S. 

8 24, 25 (1976) (“As a general rule courts and agencies are not 

9 required to make findings on issues the decision of which is 

10 unnecessary to the results they reach.”). Finally, absent a 

11 showing of past persecution, Chapagai is not entitled to a 

12 presumption of future persecution and is not eligible for 

13 humanitarian asylum. See 8 C.F.R. § 1208.13(b)(1). 

14 Chapagai does not otherwise argue that he established a well15 founded fear of future persecution or torture. See Yueqing 

16 Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 

17 2005) (deeming abandoned claim not raised in brief).

18 For the foregoing reasons, the petition for review is 

19 DENIED. 

20 FOR THE COURT: 

21 Catherine O’Hagan Wolfe,

22 Clerk of Court