09-2829-ag

Khadka v. Holder

BIA

Balasquide, IJ

A094 778 595

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 3 day of August, two thousand ten. rd

PRESENT:

ROBERT D. SACK,

REENA RAGGI,

GERARD E. LYNCH,

 Circuit Judges.

_____________________________________

PURNA BAHADUR KHADKA,

Petitioner, 

 v. 09-2829-ag

NAC

ERIC H. HOLDER, JR., UNITED STATES

ATTORNEY GENERAL,

Respondent.

_____________________________________

FOR PETITIONER: Ramesh K. Shrestha, New York, New

York.

FOR RESPONDENT: Tony West, Assistant Attorney

General; Ahn-Thu P. Mai-Windle,

Senior Litigation Counsel; Lynda A.

Do, Attorney, Office of Immigration

Litigation, United States Department

of Justice, Washington, D.C.
2

UPON DUE CONSIDERATION of this petition for review of a

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

hereby ORDERED, ADJUDGED, AND DECREED that the petition for

review is DENIED.

Purna Bahadur Khadka, a native and citizen of Nepal,

seeks review of a June 4, 2009 order of the BIA affirming

the August 16, 2007 decision of Immigration Judge (“IJ”)

Javier Balasquide, which denied his application for asylum,

withholding of removal, and relief under the Convention

Against Torture (“CAT”). In re Purna Bahadur Khadka, No.

A094 778 595 (B.I.A. June 4, 2009), aff’g No. A094 778 595 

(Immig. Ct. N.Y. City Aug. 16, 2007). We assume the

parties’ familiarity with the underlying facts and

procedural history in this case.

Because the BIA’s decision addressed only the IJ’s

nexus finding, we need not reach either the IJ’s adverse

credibility determination or his finding that Khadka failed

to demonstrate harm rising to the level of persecution. 

See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,

522 (2d Cir. 2005). Accordingly, “we assume, but do not

determine,” Khadka’s credibility for purposes of our

analysis. Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.

2005). The applicable standards of review are well-
3

established. See 8 U.S.C. § 1252(b)(4)(B); Manzur v. U.S.

Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007). 

To establish eligibility for asylum and withholding of

removal, an alien must demonstrate that any persecution that

he has suffered or that he fears suffering is on account of

his race, religion, nationality, political opinion, or

membership in a particular social group. See 8 U.S.C.

§ 1101(a)(42) (asylum); id. § 1231(b)(3) (withholding of

removal). Under the REAL ID Act, an applicant must also

demonstrate that a protected ground “was or will be at least

one central reason for” the claimed persecution. Id.

§ 1158(b)(1)(B)(i) (emphasis added). In light of these

standards, we find no error in the agency’s determination

that Khadka failed to demonstrate that any harm he endured

bore a sufficient nexus to a protected ground. 

Contrary to Khadka’s argument, the agency reasonably

determined that his wealth, and not his political opinion or

status as a member in the purported social group of “ex-army

men,” was the central reason for his persecution. See id.

Indeed, the record demonstrated that the Maoists who harmed

Khadka “took his house in order to get the money, and at

other times . . . indicated that they wanted 300,000 NP’s.” 
4

While Khadka asserts that the agency’s finding failed to

take into account the overall socio-political context in

Nepal, cf. Vumi v. Gonzales, 502 F.3d 150, 156-59 (2d Cir.

2007), the record does not compel such a conclusion. Far

from ignoring the fact that political turmoil existed

between the Nepali Congress Party and the Nepali Maoist

Party, the agency simply found that Khadka failed to

demonstrate a connection to the Nepali Congress Party that

would support the conclusion that the harm he suffered was

politically motivated. See 8 U.S.C. § 1158(b)(1)(B)(i). 

Consequently, because Khadka failed to demonstrate that his

harm bore a sufficient nexus to a protected ground, his

applications for asylum and withholding of removal

necessarily fail. See id. §§ 1101(a)(42), 1231(b)(3). 

No different conclusion is warranted with respect to

Khadka’s application for CAT relief, as the BIA reasonably

concluded that Khadka failed to demonstrate that it was more

likely than not that he would be tortured “by or at the

instigation of or with the consent or acquiescence of a

public official or other person acting in an official

capacity.” 8 C.F.R. § 1208.18(a)(1). 
5

For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, any stay of

removal that the Court previously granted in this petition

is VACATED, and any pending motion for a stay of removal in

this petition is DISMISSED as moot. Any pending request for

oral argument in this petition is DENIED in accordance with

Federal Rule of Appellate Procedure 34(a)(2), and Second

Circuit Local Rule 34.1(b).

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk