11-5202 

Thieng v. Lynch 

 BIA

Straus, I.J.

A093 338 408

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.

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 10th 4 day of September, two thousand fifteen.

5

6 PRESENT:

7 JOHN M. WALKER, JR.,

8 ROSEMARY S. POOLER, 

9 RAYMOND J. LOHIER, JR.,

10 Circuit Judges. 

11 _____________________________________

12

13 RAJ BAHADUR THIENG,

14 Petitioner, 

15

16 v. 11-5202

17 NAC 

LORETTA E. LYNCH,1 18 UNITED STATES 

19 ATTORNEY GENERAL,

20 Respondent.

21 ______________________________________

22 

23 FOR PETITIONER: Khagendra Gharti-Chhetry, New York, New

24 York.

25

26

1 Loretta E. Lynch is automatically substituted as the

respondent in this case pursuant to Federal Rule of

Appellate Procedure 43(c)(2).
1 FOR RESPONDENT: Stuart F. Delery, Acting Assistant

2 Attorney General; Holly M. Smith,

3 Senior Litigation Counsel; Don G.

4 Scroggin, Trial Attorney, Office of

5 Immigration Litigation, United States

6 Department of Justice, Washington, D.C.

7

8 UPON DUE CONSIDERATION of this petition for review of a

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

10 ORDERED, ADJUDGED, AND DECREED that the petition for review is

11 GRANTED in part and DENIED in part.

12 Petitioner Raj Bahadur Thieng, a native and citizen of

13 Nepal, seeks review of a November 23, 2011 decision of the BIA

14 affirming the April 15, 2010 decision of Immigration Judge

15 (“IJ”) denying his application for asylum, withholding of

16 removal, and relief under the Convention Against Torture

17 (“CAT”). In re Raj Bahadur Thieng, No. A093 338 408 (B.I.A.

18 November 23, 2011), aff’g No. A093 338 408 (Immig. Ct.

19 Hartford Apr. 15, 2010). We assume the parties’ familiarity

20 with the underlying facts and procedural history of the case.

21 Under the circumstances of this case, we have reviewed

22 the IJ’s decision as the final agency determination. See

23 Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008). The

24 applicable standards of review are well established. See

25 8 U.S.C. § 1252(b)(4)(B); Aliyev v. Mukasey, 549 F.3d 111, 115

26 (2d Cir. 2008). 

2
1 The agency reasonably concluded that the mistreatment

2 Thieng experienced in Nepal did not rise to the level of

3 persecution. The BIA has defined persecution as a “threat to

4 the life or freedom of, or the infliction of suffering or harm

5 upon, those who differ in a way regarded as offensive.” 

6 Matter of Acosta, 19 I. & N. Dec. 211, 222 (B.I.A. 1985),

7 overruled, in part, on other grounds by INS v.

8 Cardoza-Fonseca, 480 U.S. 421 (1987); accord Ivanishvili v.

9 U.S. Dep’t of Justice, 433 F.3d 332, 342 (2d Cir. 2006).

10 Although the visit by Youth Communists League (“YCL”) members

11 to Thieng’s cyber café likely interrupted his business and

12 disturbed him, this incident does not rise above “mere

13 harassment,” and, thus, does not constitute persecution. 

14 Ivanishvili, 433 F.3d at 341; see Mei Fun Wong v. Holder, 633

15 F.3d 64, 72 (2d Cir. 2011) (“We have emphasized that

16 persecution is an extreme concept that does not include every

17 sort of treatment our society regards as offensive.”)

18 (internal quotation marks omitted). Further, although Thieng

19 testified that he received threatening phone calls,

20 unfulfilled threats do not constitute persecution. See Gui Ci

21 Pan v. U.S. Att’y Gen., 449 F.3d 408, 412 (2d Cir. 2006).

22

3
1 However, substantial evidence does not support the

2 agency’s conclusion that Thieng failed to demonstrate that he

3 was targeted by the YCL on account of his political opinion. 

4 Although Thieng testified that, as a member of the Nepali

5 Congress, he had participated mostly in non-political social

6 and community assistance activities, he also offered testimony

7 that the Maoists targeted him because he had declined to pay

8 them money, or to support them. Further, in his decision, the

9 IJ incorrectly stated that Thieng did not discuss politics

10 with the YCL members who came to his café in March 2007, as

11 the record contains evidence that Thieng and the YCL members

12 did engage in a political discussion at his café. Given that

13 this evidence reflects a direct link between Thieng’s decision

14 not to support the Maoists and the threatening phone calls, it

15 compels the conclusion that Thieng was subject to mistreatment

16 on the basis of an actual or imputed political opinion. See

17 Ahmed v. Ashcroft, 286 F.3d 611, 612 (2d Cir. 2002). Despite

18 this error, because the mistreatment experienced by Thieng in

19 Nepal did not rise to the level of persecution, the agency

20 reasonably concluded that Thieng failed to demonstrate past

21 persecution.

22

4
1 However, we grant Theing’s petition for review with

2 respect to his challenge to the agency’s denial of his asylum

3 and withholding of removal claims. The IJ relied on the

4 erroneous conclusion that the YCL did not target Thieng on

5 account of a protected ground to determine that he lacked a

6 well-founded fear of future persecution but explicitly stated

7 that “there is probably enough evidence to show that [Thieng]

8 has a well-founded fear” of future persecution. A.R. 38. In

9 these circumstances we cannot state with confidence that the

10 agency would have made the same decision in the absence of the

11 error. See Xiao Ji Chen v. U.S Dep't of Justice, 434 F.3d

12 144, 159 (2d Cir. 2006); Cao He Lin v. U.S. Dep't of Justice,

13 428 F.3d 391, 401–02 (2d Cir. 2005). Thus, we remand for the

14 agency to determine whether that probability of harm is

15 sufficient to make Thieng eligible for asylum or withholding

16 of removal. However, given the IJ’s separate finding that

17 Thieng failed to produce sufficient evidence to support the

18 requisite likelihood that he would be subject to torture upon

19 return to Nepal, we decline to remand Thieng’s CAT claim. 

20 For the foregoing reasons, the petition for review is

21 GRANTED in part and DENIED in part, and the case is REMANDED

22 to the BIA for further proceedings consistent with this order.

5
1 As we have completed our review, the stay of removal that the

2 Court previously granted in this petition is VACATED.

3

4 FOR THE COURT: 

5 Catherine O’Hagan Wolfe, Clerk

6

6