20

- 3722 Sunar v. Garland BIA Vomacka , IJ A 206 882 136 

### 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 Thu**  **rgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 2**  **4 t**  **h da**  **y of O**  **c t**  **o b**  **e r**  **, two thousand twenty** 
**** 4 **two**

**.** 5 6 **PRESENT:** 7 **JON O. NEWMAN ,**  8 **DENNY CHIN ,**  9 **RICHARD J. SULLIVAN ,**  10 **Circuit Judges.** 11

**_____________________________________** 12 13 **TUL PRASAD SUNAR ,**  14 **Petitioner ,**  15 16
**v. 20** 

**- 3722**  17 **NAC** 18 **MERRICK B. GARLAND ,**  **UNITED** 19 **STATES ATTORNEY GENERAL**  **,** 20 **Respondent**

**.** 21

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

. 25 26 **FOR RESPONDENT:** Brian Boynton , Principal Deputy 27 Assistant Attorney General ; 28 Gregory D. Mack , Senior Litigation 292 Counsel ; Sarah L. Martin , Trial 1 Attorney, Office of Immigration 2 Litigation , United States 3 Department of Justice, Washington, 4 D C. 5 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

Petitioner Tul Prasad Sunar , a native and citizen of 11
Nepal , seeks review of a n October 22, 2020 , decision of the 12
BIA affirming a July 27, 2018 , decision of an Immigration 13
Judge ( " IJ " ) denying Sunar ' s application for asylum, 14
withholding of removal , and relief under the Convention 15
Against Torture ( " CAT " ). In re Tul Prasad Sunar , No. A 206 16

882 136 (B.I.A. Oct. 22, 2020 ), aff ' g No. A 206 882 136 (Immig. 17
Ct. N.Y. City July 27, 2018 ). We assume the parties ' 18
familiarity with the underlying facts and proce dural history. 19

We have reviewed the IJ ' s decision as modified by the 20
BIA, i.e., minus the IJ's adverse credibility determination 21

because the BIA did not reach it

. See Xue Hong Yang v. U.S. 22

Dep ' t of Just

. , 426 F.3d 520, 522 (2d Cir. 2005). The 23

standards of review are well established. See 8 U.S.C. 243 § 1252(b)(4)(B) ( " [T] he administrative findings of fact are 1
conclusive unless any reasonable adjudicator would be 2
compelled to conclude to the contrary

. " ) ; Lecaj v. Holder , 3
616 F.3d 111, 114 (2d Cir. 2010) (reviewing factual findings 4

under the substantial evidence standard and question s o f law 5
and application of law to fact de novo)

. 6
The agency did not err in concluding that Sunar failed 7
to satisfy his burde n of proof for asylum, withholding of 8
removal, and CAT relief based on his claim that Maoists 9

a ttack ed him and detonated a bomb near his home in 2013 on 10
account of his support of the Rastriya Prajatantra Party 11

( " RPP " )

. To obtain asylum, Sunar had the burden to establish 12
that he suffered past persecution, or that he has a well

13
founded fear of future persecution , on account of his 14
political opinion. 8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(A), 15
(B)(i). 16
The agency did not err in concluding that Sunar failed 17

to establish that the past harm he suffered rose to the level 18
of persecution. " [P]ersecution is an extreme concept that 19
does not include every sort of treatment our society regards 20

as offensive. " Mei Fun Wong v. Holder , 633 F.3d 64, 72 (2d 214 Cir. 2011) (quot ation marks omitted ). " [ W ] hile t he 1
difference between harassment and persecution is necessarily 2
one of degree, the degree must be assessed with regard to the 3

context in which the mistreatment occurs

. " Beskovic v. 4

Gonzales , 467 F.3d 223, 226 (2d Cir. 2006) (quotation marks 5
and citation omitted). For instance , a beating may constitute 6
persecution in some circumstances (such as when administered 7
in conjunction with an arrest or detention) , even though a 8

beat ing alone do es not " constitute[] persecution per se . " 9

Jian Qiu Liu v. Holder , 632 F.3d 820, 822 (2d Cir. 2011). 10

Sunar ' s testimony did not " refer [] to specific facts " 11
that would compel the conclusion that the incidents he 12
experienced rose to the level of persecution. 8 U.S.C. 13

§ 1158(b)(1)(B)(ii)

. Indeed, Sunar stated that he suffered 14
only " a little bit " when Maoists hit him and that Maoists 15

detonated a bomb that dama g ed only the ground 80 meters from 16

his house , without provid ing details about the bombing, such 17
as whether he heard or saw the explosion, whether anyone was 18
harmed or nearby when it detonated, and whether there were 19

other buildings near by

. 1 S ee Jian Qiu Liu , 632 F.3d at 822 20

1 Contrary to Sunar ' s contention , the BIA did not affirm the5 (finding no error in the agency ' s determination that 1
applicant failed to establish past persecution when " he 2
suffered only minor bruising from an altercation with family 3
planning officials, which required no formal medical 4

attentio n and had no lasting physical effect " ). Moreover, 5
the agency did not err in declining to credit unsworn 6

statements from Sunar ' s relatives, his neighbor, and RPP 7

members alleging that Sunar was the target of the bomb because 8

the statements were not based on first

- hand knowledge and 9
were strikingly similar to one another in content. See Y.C. 10

v. Holder , 741 F.3d 324, 332 (2d Cir. 2013) ( " We generally 11
defer to the agency ' s evaluation of the weight to be afforded 12
an applicant ' s documentary evi dence. " ); Mei Chai Ye v. U.S. 13

Dep ' t of Just

. , 489 F.3d 517, 524 (2d Cir. 2007) ( " [T]his 14
court has . . . firmly embraced the commonsensical notion 15
that striking similarities between affidavits are an 16

indication that the statements are ' canned. ' " ). Further , the 17
harm suffered by Sunar ' s wife, which he did not witness and 18

which apparently target ed her and not him, is not evidence 19

IJ ' s adverse credibility finding but rather agreed that Sunar did not satisfy his burden of demonstrating that he was the target of the bombing.6 that he suffered past persecution

. S ee Shi Liang Lin v. U.S. 1

Dep ' t of Just

. , 494 F.3d 296, 308 (2d Cir. 2007) (concluding 2

" that the statutory scheme unambiguously dictates that 3
applicants can become candidates for asylum relief only based 4
on persecution that they themselves have suffered " ); Tao 5
Jiang v. Gonzales , 500 F.3d 137, 14 1

– 42 (2d Cir. 2007) 6
(recognizing that there may be circumstances when harm to an 7
applicant ' s family member amount s to past persecution of the 8
applicant , but noting that such a situation would presumably 9
require that the applicant share or be perceived to s hare 10
"the characteristic that motivated persecutors to harm the 11
family member," be in the " zone of risk , " and suffer some 12

" continuing hardship " following the incident , or 13
alternatively that the applicant show that the harm was a 14
means of targeting the applicant). 15
Absent past persecution, Sunar could establish 16
eligibility for asylum only by demonstrating a well

- founded 17
fear of future persecution, " which requires

. . . credible 18
testimony that he subjectively fears persecution " and that he 19

" establish that his fear is objectively reasonable. " 20

Ramsameachire v. Ashcroft , 357 F.3d 169, 178 (2d Cir. 2004); 217 see also 8 C.F.R. § 1208.13(b)(2). The agency did not err in 1
concluding that Sunar failed to establish a n objectively 2

reasonable fear of pers ecution . Sunar d id not claim that 3
Maoists had looked for him since his departure from Nepal in 4

2013 but stated only that they threatened him in the course 5

of attacking his wife in 2017 on account of her , not his, 6
political activities. But h is wife ' s written statement does 7

not corroborate that threat , reporting only that Maoists beat 8

her and threatened her life because of her political 9

activities. And t he country conditions evidence discusses 10

isolated incidents of violence around the 2013 and 2017 11

e lections but does not discuss any incidents in which RPP 12

supporter s w ere harmed. Sunar ' s testimony that Maoists 13

threatened him on one occasion since his 2013 departure from 14
Nepal thus do es not compel a finding that he has a well

15
founded fear of persecution. See 8 U.S.C. 16

§ § 1158(b)(1)(B)(ii) , 1252(b)(4)(B) ; Jian Xing Huang v. U.S. 17

INS , 421 F.3d 125, 129 (2d Cir. 2005) ( " In the absence of 18
solid support in the record . . . [an applicant ' s] fear is 19
speculative at best

. " ). Bec ause Sunar does not have a well

20
founded fear of persecution, the agency did not err in denying 218 asylum, withholding of removal, and CAT relief because all 1
three claims were based on the same factual predicate and 2
withholding of removal and CAT relief requir e "a greater 3
likelihood of future persecution than that required for the 4
grant of asylum

. " 2 Lecaj , 616 F.3d at 119

– 20

. 5
For the foregoing reasons, the petition for review is 6

DENIED

. All pending motions and applications are DENIED and 7

stays VACATED. 8

FOR THE COURT: 9 Catherine O ' Hagan Wolfe , 10 Clerk of Court 11

2 Contrary to the Government ' s contention, Sunar challenge s the agency ' s denial of withholding of removal and CAT relief by arguing that the agency erred in relying on his failure to satisfy the burden for asylum to deny those forms of relief.