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Pursuant to a February 2012 stipulation order, the

instant petition for review has been withdrawn as to Kumar.

11-2310-ag

Thakali v. Holder

BIA

Hom, IJ

A089 252 847

A089 252 848

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 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 the Second Circuit, held at the Daniel Patrick Moynihan

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

New York, on the 29th day of May, two thousand twelve.

PRESENT:

REENA RAGGI,

GERARD E. LYNCH,

CHRISTOPHER F. DRONEY,

Circuit Judges.

_______________________________________

PRAMALI THAKALI, SURINDER KUMAR1

,

Petitioners, 

 v. 11-2310-ag

NAC 

ERIC H. HOLDER, JR., UNITED STATES

ATTORNEY GENERAL,

Respondent.

______________________________________

FOR PETITIONER: Jason A. Nielson, New York, New

York.
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FOR RESPONDENT: Tony West, Assistant Attorney

General; Cindy S. Ferrier, Assistant

Director; Joseph A. O’Connell, 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.

Petitioner Pramila Thakali, a native and citizen of

Nepal, seeks review of a May 11, 2011, decision of the BIA

affirming the April 14, 2009, decision of Immigration Judge

(“IJ”) Sandy Hom, pretermitting her application for asylum

and denying her claims for withholding of removal and relief

under the Convention Against Torture (“CAT”). In re Pramila

Thakali, Surinder Kumar, Nos. A089 252 847/ 848 (B.I.A. May

11, 2011), aff’g Nos. A089 252 847/ 848 (Immig. Ct. N. Y.

City, Apr. 14, 2009). We assume the parties’ familiarity

with the underlying facts and procedural history in this

case.

“Because the BIA adopted and affirmed the IJ's

decision, we review the two decisions in tandem.” Yanqin

Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). “The

substantial evidence standard of review applies, and we
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uphold the IJ's factual findings if they are supported by

reasonable, substantial and probative evidence in the

record.” Id. (internal quotation marks and citations

omitted). See also 8 U.S.C. § 1252(b)(4)(B).

I. Asylum Pretermission

We lack jurisdiction to review the agency’s decision

that Thakali failed to demonstrate changed or extraordinary

circumstances to excuse the late filing of her asylum

application See 8 U.S.C. §§ 1158(a)(2)(B), 1158(a)(2)(D). 

While we retain jurisdiction to review constitutional claims

and questions of law, id. § 1252(a)(2)(D), Thakali’s

argument challenging only the agency’s fact-finding presents

no such issue. See Xiao Ji Chen v. U.S. Dep’t of Justice,

471 F.3d 315, 329 (2d Cir. 2006). 

II. Past Persecution

Thakali argues that the extortion attempts and threats

she endured at the hands of the Maoists constituted past

persecution on account of her political opposition to the

Maoist forces. This Court has previously described

persecution as “the infliction of suffering or harm upon

those who differ on the basis of a protected statutory

ground.” Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d Cir.
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2011)(citing Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d

332, 341 (2d Cir. 2006)). In addition, the harm must be

sufficiently severe, rising above “mere harassment.” 

Ivanishvili, 433 F.3d at 341. Here, the BIA reasonably

found that the harm Thakali alleged - unfulfilled threats -

did not rise to the level of persecution. See Guan Shan

Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 70 (2d Cir.

2002) (stating that a “threat of detention . . . itself . .

. is not past persecution”); see also Gui Ci Pan v. U.S.

Attorney Gen., 449 F.3d 408, 412 (2d Cir. 2006) (collecting

cases that have “rejected [persecution] claims involving

‘unfulfilled’ threats”).

III. Future Persecution 

The agency also reasonably found that Thakali failed to

establish that "one central reason" for the Maoists' threats

and her fear of future harm is on account of a protected

ground. Thakali argues that the agency erred in finding

that she was not persecuted and would not suffer future harm

on account of her political opinion. Section 101(a)(3) of

the REAL ID Act, codified at 8 U.S.C. § 1158(b)(1)(B)(i)–

applicable here because Thakali filed her application in

2007, see REAL ID Act § 101(h)(2) – provides that an asylum

applicant “must establish that [a protected ground] was or
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will be at least one central reason for” the claimed

persecution. See Castro v. Holder, 597 F.3d 93, 100 (2d

Cir. 2010). 

To the extent that Thakali argues that she was targeted

on account of her involvement in a women’s group in Nepal,

she has failed to exhaust that argument by failing to

present it to the BIA. See 8 U.S.C. § 1158(a)(3); see also

Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004) (requiring

that petitioners raise to the BIA the specific issues they

later raise in this Court). 

To the extent that Thakali argues that she was targeted

because of her opposition to Maoist insurgents, the BIA’s

rejection of that argument was not erroneous. Thakali

stated that Maoists came to her hotel to extort money from

her guests and she informed the police, who took the Maoists

into custody. Roughly two weeks later, the Maoists returned

to her hotel, stating: “You informed the Police and [] made

arrest our Friends. Now our party decided to get 200,000

[rupees] As a donation.” Given that Maoist forces expressed

an economic rather than a political motive as the reason for

their return visit, the agency reasonably concluded that

Thakali was targeted on account of her ability to provide

financial resources and that as a result, she had not
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demonstrated persecution on account of a protected ground. 

See Ucelo-Gomez v. Mukasey, 509 F.3d 70, 72-73 (2d Cir.

2007). 

The agency's conclusion that Thakali failed to

demonstrate a likelihood of future persecution is further

supported by its reliance on Thakali's testimony that her

sisters and brother remain in Nepal unharmed. See Melgar de

Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999) (concluding

that where asylum applicant’s family members continued to

live in Petitioner’s native country, claim of well-founded

fear was diminished). Additionally, the agency reasonably

noted that when Thakali reported the Maoists to the police,

they arrested ten individuals, undermining her claim that

the police are unable or unwilling to protect her, and

further undermining her fear of future harm. See Matter of

Acosta, 19 I.&N. Dec. 211, 222 (BIA 1985), overruled on

other grounds, I.N.S. v. Cardoza-Fonseca, 480 U.S. 421

(1987). 

Accordingly, substantial evidence supports the agency's

finding that Thakali failed to establish a likelihood of

persecution on account of a protected ground. See Jian Xing

Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (absent solid

support in the record, a fear of future harm is “speculative
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at best.”). Because Thakali's claim for CAT relief rests on

the same factual predicate as her withholding claim, it

necessarily fails. Xue Hong Yang v. U.S. Dep’t of Justice,

426 F.3d 520, 523 (2d Cir. 2005).

For the foregoing reasons, the petition for review is

DENIED. Petitioner’s pending motion for a stay of removal

is accordingly DISMISSED as moot. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk