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. 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 10 th** **day of September, two thousand fifteen.** 4 5 **PRESENT:** 6 **JOHN M. WALKER, JR.,** 7 **ROSEMARY S. POOLER,** 8 **RAYMOND J. LOHIER, JR.,** 9 Circuit Judges **.** 10

**_____________________________________** 11 12 **RAJ BAHADUR THIENG,** 13 Petitioner**,** 14 15 **v. 11-5202** 16 **NAC** 17 **LORETTA E. LYNCH, 1** **UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**______________________________________** 21 22 **FOR PETITIONER: Khagendra Gharti-Chhetry, New York, New** 23 **York.** 24 25 26

1Loretta E. Lynch is automatically substituted as the respondent in this case pursuant to Federal Rule of Appellate Procedure 43(c)(2).**FOR RESPONDENT: Stuart F. Delery, Acting Assistant** 1 **Attorney General; Holly M. Smith,** 2 **Senior Litigation Counsel; Don G.** 3 **Scroggin, Trial Attorney, Office of** 4 **Immigration Litigation, United States** 5 **Department of Justice, Washington, D.C.** 6 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 is 10 GRANTED in part and DENIED in part. 11 Petitioner Raj Bahadur Thieng, a native and citizen of 12 Nepal, seeks review of a November 23, 2011 decision of the BIA 13 affirming the April 15, 2010 decision of Immigration Judge 14 (“IJ”) denying his application for asylum, withholding of 15 removal, and relief under the Convention Against Torture 16 (“CAT”). In re Raj Bahadur Thieng, No. A093 338 408 (B.I.A. 17 November 23, 2011), aff’gNo. A093 338 408 (Immig. Ct. 18 Hartford Apr. 15, 2010). We assume the parties’ familiarity 19 with the underlying facts and procedural history of the case. 20 Under the circumstances of this case, we have reviewed 21 the IJ’s decision as the final agency determination. See 22 Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008). The 23 applicable standards of review are well established. See 24 8 U.S.C. § 1252(b)(4)(B); Aliyev v. Mukasey, 549 F.3d 111, 115 25 (2d Cir. 2008). 26
2The agency reasonably concluded that the mistreatment 1 Thieng experienced in Nepal did not rise to the level of 2 persecution. The BIA has defined persecution as a “threat to 3 the life or freedom of, or the infliction of suffering or harm 4 upon, those who differ in a way regarded as offensive.” 5 Matter of Acosta , 19 I. & N. Dec. 211, 222 (B.I.A. 1985), 6 overruled, in part, on other grounds by INS v. 7 Cardoza-Fonseca , 480 U.S. 421 (1987); accord Ivanishvili v. 8 U.S. Dep’t of Justice , 433 F.3d 332, 342 (2d Cir. 2006). 9 Although the visit by Youth Communists League (“YCL”) members 10 to Thieng’s cyber café likely interrupted his business and 11 disturbed him, this incident does not rise above “mere 12 harassment,” and, thus, does not constitute persecution. 13 Ivanishvili , 433 F.3d at 341; see Mei Fun Wong v. Holder , 633 14 F.3d 64, 72 (2d Cir. 2011) (“We have emphasized that 15 persecution is an extreme concept that does not include every 16 sort of treatment our society regards as offensive.”) 17 (internal quotation marks omitted). Further, although Thieng 18 testified that he received threatening phone calls, 19 unfulfilled threats do not constitute persecution. See Gui Ci 20 Pan v. U.S. Att’y Gen ., 449 F.3d 408, 412 (2d Cir. 2006). 21
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3However, substantial evidence does not support the 1 agency’s conclusion that Thieng failed to demonstrate that he 2 was targeted by the YCL on account of his political opinion. 3 Although Thieng testified that, as a member of the Nepali 4 Congress, he had participated mostly in non-political social 5 and community assistance activities, he also offered testimony 6 that the Maoists targeted him because he had declined to pay 7 them money, or to support them. Further, in his decision, the 8 IJ incorrectly stated that Thieng did not discuss politics 9 with the YCL members who came to his café in March 2007, as 10 the record contains evidence that Thieng and the YCL members 11 did engage in a political discussion at his café. Given that 12 this evidence reflects a direct link between Thieng’s decision 13 not to support the Maoists and the threatening phone calls, it 14 compels the conclusion that Thieng was subject to mistreatment 15 on the basis of an actual or imputed political opinion. See 16 Ahmed v. Ashcroft , 286 F.3d 611, 612 (2d Cir. 2002). Despite 17 this error, because the mistreatment experienced by Thieng in 18 Nepal did not rise to the level of persecution, the agency 19 reasonably concluded that Thieng failed to demonstrate past 20 persecution. 21
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4However, we grant Theing’s petition for review with 1 respect to his challenge to the agency’s denial of his asylum 2 and withholding of removal claims. The IJ relied on the 3 erroneous conclusion that the YCL did not target Thieng on 4 account of a protected ground to determine that he lacked a 5 well-founded fear of future persecution but explicitly stated 6 that “there is probably enough evidence to show that [Thieng] 7 has a well-founded fear” of future persecution. A.R. 38. In 8 these circumstances we cannot state with confidence that the 9 agency would have made the same decision in the absence of the 10
error. See Xiao Ji Chen v. U.S Dep't of Justice , 434 F.3d 11 144, 159 (2d Cir. 2006);Cao He Lin v. U.S. Dep't of Justice , 12 428 F.3d 391, 401–02 (2d Cir. 2005). Thus, we remand for the 13 agency to determine whether that probability of harm is 14 sufficient to make Thieng eligible for asylum or withholding 15 of removal. However, given the IJ’s separate finding that 16 Thieng failed to produce sufficient evidence to support the 17 requisite likelihood that he would be subject to torture upon 18 return to Nepal, we decline to remand Thieng’s CAT claim. 19 For the foregoing reasons, the petition for review is 20 GRANTED in part and DENIED in part, and the case is REMANDED 21 to the BIA for further proceedings consistent with this order. 22

5As we have completed our review, the stay of removal that the 1 Court previously granted in this petition is VACATED. 2
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FOR THE COURT: 4 Catherine O’Hagan Wolfe, Clerk 5
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