18

- 3274 Chapagai v. Wilkinson BIA Lopez Defillo , IJ

A 202 138 448 

### 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 FED**  **ERAL 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 United**  2 **States Courthouse, 40 Foley Square, in the City of New York,**  3 **on the 1**  **7 t**  **h da**  **y of F**  **e b**  **r u**  **a r**  **y , two thousand**  **twenty -**  **one .**  4 5 **PRESENT:** 6 **ROSEMARY S. POOLER ,**  7 **SUSAN L. CARNEY ,**  8 **MICHAEL H. PARK ,**  9 **Circuit Judges.** 10

**_____________________________________** 11 12 **SHANKAR CHAPAGAI, AKA SHANKAR** 13 **CHAPAGAIN,** 14 **Petitioner ,**  15 16

**v. 18** 

**- 3274**  17 **NAC** 18 **ROBERT M. WILKINSON , ACTING**  19 **UNITED STATES ATTORNEY GENERAL,** 20 **Respondent .**  1 21

**_____________________________________** 22 23 **FOR PETITIONER :**  Dilli Raj Bhatta , Esq., Bhatta 24 Law & Associates, New York, NY

. 25 26

1 Pursuant to Fed. R. App. P. 43(c)(2), Acting Attorney General Robert M. Wilkinson is automatically substituted as Respondent

.2 **FOR RESPONDENT:** Carl McIntyre , Assistant Director ; 1 Brooke Marie Maurer , Trial 2 Attorney, Office of Immigration 3 Litigation, United States 4 Department of Justice, Washington, 5 D C. 6
UPON DUE CONSIDERATION of this petition for review of a 7
Board of Immigration Appeals (“BIA”) decision, it is hereby 8

ORDERED, ADJUDGED, AND DECREED that the petitio n for review 9

is DENIED. 10
Shankar Chapagai , a native and citizen of Nepal , seeks 11

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

a n October 23, 2017 , decision of an Immigration Judge (“IJ”) 13
denying asylum, withholding of removal, and prot ection under 14
the Convention Against Torture (“CAT”)

. In re Shankar 15
Chapagai , No. A 202 138 448 (B.I.A. Oct. 3 , 2018 ), aff’g No. 16

A 202 138 448 (Immig. Ct. N.Y. City Oct. 23 , 2017 ). We assume 17
the parties’ familiarity with the underlying facts and 18
procedural history. 19

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

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

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

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

§ 1252(b)(4)(B); Yanqin Weng v. Holder , 562 F.3d 510, 513 (2d 243 Cir. 2009) (reviewing factual findings for substantial 1
evidence and questions of law and application of law to fact 2

de novo). 3
Chapagai alleged that between October and December 2013 , 4
members of the Maoist Party threatened him multiple times and 5
beat him on one occasion because of his membership in the 6
Nepali Congress Party

. We find no error in the agency’s 7
conclusion that the past harm did not rise to the level of 8
persecution. 9
Past persecution may be based on harm other than threats 10
to life or freedom, including “non

- life

- threatening violence 11
and physical abuse.” Beskovic v. Gonzales , 467 F.3d 223, 226 12

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

level of persecution, we have hel d that the question of 14

whether harm rises to the level of persecution “ is necessarily 15
one of degree that must be decided on a case

- by

- case basis. ” 16

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

Cir. 2006) . We have desc ribed persecution as “ an extreme 18
concept that does not include every sort of treatment our 19
society regards as offensive

. ” Mei Fun Wong v. Holder , 633 20
F.3d 64, 72 (2d Cir. 2011) (internal quotation marks omitted). 214 The agency considered Chapagai’s lack of l asting injury and 1
his choice not to seek professional medical attention. The 2
agency also examined the context of his harm, including that 3
the beating was by members of an opposing party rather than 4
the government, that Chapagai’s fellow villagers were 5

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

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

F .3d 820, 822 (2d Cir. 2011) (finding no error in BIA’s 8
conclusion that physical attack by family planning officials 9
did not rise to the level of persecution where asylum 10
applicant “suffered only minor bruising” and the attack 11
happened prior to an arrest by local police ); cf. Beskovic , 12

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

fact that even mistreatment that, in other contexts, could 14
fairly be characterized as

. . . harassment, can take on an 15
entirely different character when officially inflicted on an 16

individual

. . . detained on account of protected grounds ” 17
(internal quotation marks and citation omitted) ). 18
Chapagai argues that the agency did not assess his harm 19
cumulatively as required. S ee Manzur v. U.S. Dep’t of 20

Homeland Sec., 494 F.3d 281, 290 (2d Cir. 2007) . However, 215 the IJ acknowledged both the harassment and the physical harm, 1
and the BIA explicitly concluded that the physical harm 2

combined with the threa ts did not rise to the level of 3
persecution

. Because this finding is dispositive as to past 4
persecution, we do not reach the agency’s alternate finding 5
that Chapagai did not establish that he was harmed on account 6
of his political opinion. See INS v. Bagamasbad , 429 U.S. 7
24, 25 (1976) (“As a general rule courts and agencies are not 8
required to make findings on issues the decision of which is 9

unnecessary to the result s they reach.”). Finally, absent a 10
showing of past persecution, Chapagai is not entitled to a 11
presumption of future persecution and is not eligible for 12
humanitarian asylum. See 8 C.F.R. § 1208.13(b)(1). 13
Chapagai does not otherwise argue that he establis h ed a well

14
founded fear of future persecution or torture

. See Yueqing 15

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

2005) ( deeming abandoned claim not raised in brief). 17
For the foregoing reasons, the petition for review is 18

DENIED

. 19

FOR THE COURT: 20 Catherine O ’ Hagan Wolfe , 21 Clerk of Court 22