18-3816

Shrestha v. Garland

BIA

Christensen, IJ

A208 927 770

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 TO 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 

3 United States Courthouse, 40 Foley Square, in the City of 

New York, on the 16th 4 day of April, two thousand twenty-one.

5

6 PRESENT:

7 DEBRA ANN LIVINGSTON,

8 Chief Judge,

9 RICHARD C. WESLEY,

10 STEVEN J. MENASHI,

11 Circuit Judges.

12 _____________________________________

13

14 LAXMAN SHRESTHA,

15 Petitioner,

16

17 v. 18-3816

18 NAC

19 MERRICK B. GARLAND, UNITED 

20 STATES ATTORNEY GENERAL,

21 Respondent.*

22 _____________________________________

23

24 FOR PETITIONER: Dilli Raj Bhatta, Esq., Bhatta 

25 Law & Associates, New York, NY.

26

27 FOR RESPONDENT: Brian M. Boynton, Acting 

28 Assistant Attorney General; Kohsei 

29 Ugumori, Senior Litigation 

* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney 

General Merrick B. Garland is automatically substituted as Respondent.
2

1 Counsel; David J. Schor, Trial 

2 Attorney, Office of Immigration 

3 Litigation, United States 

4 Department of Justice, Washington, 

5 DC.

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 

10 is DENIED.

11 Petitioner Laxman Shrestha, a native and citizen of 

12 Nepal, seeks review of a November 29, 2018, decision of the 

13 BIA affirming a November 2, 2017, decision of an Immigration 

14 Judge (“IJ”) denying Shrestha’s application for asylum, 

15 withholding of removal, and relief under the Convention 

16 Against Torture (“CAT”). In re Laxman Shrestha, No. A208 927 

17 770 (B.I.A. Nov. 29, 2018), aff’g No. A208 927 770 (Immig. 

18 Ct. N.Y. City Nov. 2, 2017). We assume the parties’ 

19 familiarity with the underlying facts and procedural history.

20 We have reviewed both the BIA’s and IJ’s decisions “for 

21 the sake of completeness.” Wangchuck v. Dep’t of Homeland 

22 Sec., 448 F.3d 524, 528 (2d Cir. 2006). The standards of 

23 review are well established. See 8 U.S.C. § 1252(b)(4)(B); 

24 Lecaj v. Holder, 616 F.3d 111, 114 (2d Cir. 2010). 
3

1 The agency did not err in concluding that Shrestha failed 

2 to satisfy his burden of proof for asylum, withholding of 

3 removal, and CAT relief based on his claim that Maoists 

4 attempted to attack him in 2009 and threatened him in 2013 on 

5 account of his membership in the Nepali Congress Party. To 

6 establish eligibility for asylum, Shrestha was required to 

7 show that he suffered past persecution, or that he has a well8 founded fear of future persecution, on account of his race, 

9 religion, nationality, membership in a particular social 

10 group, or political opinion. 8 U.S.C. §§ 1101(a)(42), 

11 1158(b)(1)(A), (B)(i). 

12 The agency did not err in concluding that Shrestha’s 

13 experiences did not rise to the level of persecution because 

14 he was not harmed in either incident, he did not have any 

15 interaction with Maoists in Nepal during the four years 

16 between the incidents or the one and a half years after the 

17 second incident, and the Maoists’ threats went unfulfilled. 

18 See Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d Cir. 2011)

19 (“[P]ersecution is an extreme concept that does not include 

20 every sort of treatment our society regards as offensive.”

21 (internal quotation marks omitted)); Jian Qiu Liu v. Holder, 
4

1 632 F.3d 820, 822 (2d Cir. 2011) (finding no error in the 

2 agency’s determination that an alien failed to establish past 

3 persecution when “he suffered only minor bruising from an 

4 altercation with family planning officials, which required no 

5 formal medical attention and had no lasting physical 

6 effect”); Gui Ci Pan v. U.S. Att’y General, 449 F.3d 408, 

7 412–13 (2d Cir. 2006) (concluding that unfulfilled threats do 

8 not constitute persecution).

9 Absent past persecution, an alien may establish 

10 eligibility for asylum by demonstrating a well-founded fear 

11 of future persecution, “which requires that the alien present 

12 credible testimony that he subjectively fears persecution and 

13 establish that his fear is objectively reasonable.” 

14 Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004); 

15 see also 8 C.F.R. § 1208.13(b)(2). The agency did not err 

16 in concluding that Shrestha failed to establish a well17 founded fear of persecution in Nepal because he remained 

18 unharmed in Nepal for one and a half years after the 2013 

19 threat and conditions in Nepal had improved significantly 

20 since then. See Melgar de Torres v. Reno, 191 F.3d 307, 313 

21 (2d Cir. 1999) (finding a fear of future persecution weakened 
5

1 when similarly situated family members remain unharmed in 

2 petitioner’s native country); see also Ramsameachire, 357 

3 F.3d at 178. Because Shrestha does not have a well-founded 

4 fear of persecution, the agency did not err in denying asylum, 

5 withholding of removal, and CAT relief because all three 

6 claims were based on the same factual predicate. See Lecaj, 

7 616 F.3d at 119–20.

8 For the foregoing reasons, the petition for review is 

9 DENIED. All pending motions and applications are DENIED and 

10 stays VACATED.

11 FOR THE COURT: 

12 Catherine O’Hagan Wolfe,

13 Clerk of Court