18

- 1860 Gurung v. Barr BIA Wright , IJ A 201 125 997 /998 

### 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.**
**At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the**  **Thurgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 17**  **th da**  **y of August,**  **two thousand twenty**  **.** 4 5 **PRESENT:** 6 **GUIDO CALABRESI,** 7 **DENNY CHIN,** 8 **SUSAN L. CARNEY,** 9 **Circuit Judges.** 10

**_____________________________________** 11 12 **RAJU PUNCHO GURUNG, AKA** 13 **RAJUPUNCHO GURUNG, SUJAN GURUNG ,**  14 **Petitioner s**  **,** 15 16

**v. 18** 

**- 1860**  17 **NAC** 18 **WILLIAM P. BARR, UNITED STATES**  19 **ATTORNEY GENERAL ,**  20 **Respondent .**  21

**_____________________________________** 22 23 **FOR PETITIONER S**  **:** Gary J. Yerman, Esq. , New York , 24 NY

. 25 26 **FOR RESPONDENT:** Ethan P. Davis , Acting Assistant 27 Attorney General ; Leslie McKay , 282 Senior Litigation Counsel ; 1 Madeline Henley , Trial Attorney, 2 Office of Immigration Litigation, 3 United States Department of 4 Justice, Washington, D C. 5 UPON DUE CONSIDERATION of this petition for review of a 6
Board of Immigration Appeals (“BIA”) decision, it is hereby 7

ORDERED, ADJUDGED, AND DECREED that the petitio n for review 8

is DENIED

. 9

Petitioner s Raju Puncho Gurung and Sujan Gurung , 10

native s and citizen s of Nepal , seek review of a May 25, 11

2018 , decision of the BIA affirming a July 19, 2017 , 12
decision of an Immigration Judge (“IJ”) denying Raju Puncho 13

Gurung ’s application for asylum, withholding of removal, 14
and relief under the Convention Against Torture (“CAT”). 15

In re Raju Puncho Gurung , Sujan Gurung , No. A 201 125 16

997/998 (B.I.A. May 25, 201 8 ), aff’g No. A 201 125 997/998 17
(Immig. Ct. N.Y. City July 19, 2017 ). We assume the 18
parties’ familiarity with the underlying facts and 19
procedural history. 20

Under the circumstances of this case, we have review ed 21

both the IJ’s and BIA’s decisions “for the sake of 22

completeness.” Wangchuck v. Dep’t of Homeland Sec. , 448 23

F.3d 524, 528 (2d Cir. 2006). The applicable standards of 243 review are well established. See 8 U.S.C. § 1252(b)(4)(B); 1
Yanqin Weng v. Holder , 562 F .3d 510, 513 (2d Cir. 2009) 2
(reviewing factual findings for substantial evidence and 3
questions of law and the application of law to undisputed 4

facts de novo). 5
To establish asylum eligibility, an applicant must show 6
that he has suffered past persecution, or has a well

7
founded fear of future persecution, on account of race, 8
religion, nationality, membership in a particular social 9
group, or political opinion. See 8 U.S.C. § 1101(a)(42). 10
If the applicant is found to have suffered past 11
persecution, he is “ p resumed to have a well

- founded fear of 12
future persecution on the basis of the original claim. ” 8 13

C.F.R. § 1208.13(b)(1). 14

Past Persecution 15
The agency did not err in concluding that Gurung failed 16
to show that he suffered past persecution at the hands of 17

the Maoists. “[P]ersecution is ‘an extreme concept that 18
does not include every sort of treatment our society 19
regards as offensive.’” Mei Fun Wong v. Holder , 633 F.3d 20
64, 72 (2d Cir. 2011) (quoting Ai Feng Yuan v. U.S. Dep’t 214 of Justice , 416 F.3d 192, 198 (2d Cir. 2005)). Persecution 1
may “encompass[] a variety of forms of adverse treatment, 2
including non

- life

- threatening violence and physical 3

a buse,” but the harm must be sufficiently severe, rising 4

above “mere harassment.” Ivanishvili v. U.S. Dep’t of 5

Justice , 433 F.3d 332, 341 (2d Cir. 2006) (internal 6
quotation marks and brackets omitted). “‘[T]he difference 7
between harassment and persecution is necessarily one of 8

degree,’ . . . [and] the degree must be assessed with 9

regard to the context in which the mistreatment occurs.” 10

Beskovic v. Gonzales , 467 F.3d 223, 226 (2d Cir. 2006) 11
(quoting Ivanishvili , 433 F.3d at 341). In evaluating a 12

past pers ecution claim, the agency must consider the harm 13
suffered in the aggregate. Poradisova v. Gonzales , 420 14

F.3d 70, 79

– 80 (2d Cir. 2005). 15
The agency did not err in finding that Gurung’s past 16
harm did not rise to the level of persecution because he 17
testified to only one incident of physical harm and 18
provided little detail regarding the attack or his 19
injuries. While Gurung testified that Maoists threw rocks 20
at his group of protestors in 2006, he escaped without 215 harm

. The only physical harm he suffered was in December 1

2009, when he was pushed and kicked. He provided little 2

detail and appears t o have sustained only a minor injury. 3
Accordingly, the agency did not err in concluding that 4

these incidents did not rise to th e level of persecution. 5

See Jian Qiu Liu v. Holder , 632 F.3d 820, 822 (2d Cir. 6

2011) (finding no error in agency’s decision that harm did 7
not rise to the level of persecution where applicant, 8

“ prior to his arrest and detention [,]

. . . suffered only 9
minor bruising from an altercation with family planning 10
officials, which required no formal medical attention and 11
had no lasting physical effect” )

. 12

Moreover, the Maoists’ threats against Gurung’s parents 13

do not constitute past persecution of Gurung. See Tao 14
Jiang v. Gonzales , 500 F.3d 137, 141 (2d Cir. 2007) (“As a 15
general principle, an asylum applicant cannot claim past 16
persecution based solely on harm that was inflicted on a 17
family member on account of that family member’s political 18
opi nion or other protected characteristic.”). And a letter 19
threatening Gurung that was delivered to his parent’s home 20

was not a sufficiently imminent threat so as to constitute 216 past persecution

. See Scarlett v. Barr , 957 F.3d 316, 328 1

(2d Cir. 2020) ( “[ U ]nf ulfilled threats alone generally do 2
not rise to the level of persecution. To warrant a 3
different conclusion, an applicant must adduce objective 4

evidence that the threat was so imminent or concrete, or so 5
menacing as itself to cause actual suffering or har m. ” 6
(internal citations and quotation marks omitted) )

. Given 7
the single, minor incident of physical harm and the one 8
threatening letter, the agency did not err in determining 9

that the cumulative harm did not rise to the level of 10
persecution. See Mei Fun Wong , 633 F.3d at 72. 11

Fear of Future Persecution 12
Absent a finding of past persecution, an applicant may 13
establish asylum eligibility based on a fear of future 14
persecution, but the applicant must show that “he 15
subjectively fears persecution and establish that his fear 16
is objectively reasonable.” Ramsamea chire v. Ashcroft , 357 17
F.3d 169, 178 (2d Cir. 2004). Although a fear may be 18
objectively reasonable “even if there is only a slight, 19
though discernible, chance of persecution,” Diallo v. INS , 20
232 F.3d 279, 284 (2d Cir. 2000), a fear is not objectively 217 reas onable if it lacks “solid support” in the record and is 1
merely “speculative at best,” Jian Xing Huang v. U.S. INS , 2
421 F.3d 125, 129 (2d Cir. 2005). The agency did not err 3
in determining that Gurung did not have an objectively 4

reasonable fear of future pe rsecution. 5
First, there is minimal record support for his claim 6

that Maoists remain interested in him. A 2016 letter from 7
a leader of a district development society states that 8

Maoists still want revenge against Gurung, but the letter 9

does not provide an y basis for that information. 10
Additionally, Gurung did not testify that the Maoists have 11
looked for him since January 2010. And he conceded that he 12
has not been politically active in the United States. 13

Second, t he fact that the Maoists have not follow ed 14

through on threats against Gurung’s family despite his 15

father’s alleged support for the monarchy weighs against a 16
finding that Gurung has an objectively reasonable fear of 17
future persecution. See Melgar de Torres v. Reno , 191 F.3d 18

307, 313 (2d Cir. 199 9) (applicant’s claimed fear of future 19
persecution is weakened when similarly situated family 20
members continue to live unharmed in petitioner’s native 218 country). 1
Finally, there is limited support for Gurung’s claim 2

that some Maoists continue to persecute people who do not 3

support their political position. Gurung points to a 2010 4

U.S. State Department Report identifying a Maoist a ttack on 5
a district president, but this one incident from 2009 that 6
involved a district president from a different political 7
party does not establish that Gurung would be singled out 8
for his pro

- monarchy political opinion. See 8 C.F.R. 9

§ 1208.13(b)(2)(iii). While this 2 010 r eport notes re port s 10

of incidents of torture by Maoists, it does not i dentify 11

the type of victims

. And although a later report from 2013 12

states that a breakaway faction of the Maoist party 13

committed acts of violence, it is insufficient to show that 14
Gurung would be singl ed out for persecution because it does 15
not detail the frequency of the violence or reflect that 16
Maoists are targeting their political opponents

. Several 17

additional sources address issues related to holding 18
Maoists accountable for violence during the civil war but 19
do not discuss ongoing Maoist violence. Accordingly, 20

Gurung’s country conditions evidence does not support his 219 claim that Maoists would single him out for persecution

. 1
See Jian Xing Huang , 421 F.3d at 129. 2
In sum, the agency did not err in determining that 3
Gurung failed to state a well

- founded fear of future 4
persecution because he did not establish that Maoists 5
continue to be interested in him, his family has remained 6
unharmed in Nepal, and the country conditions evidence does 7

not reflect t hat similarly

- situated individuals are singled 8

out for harm. See id. Gurung’s failure to meet his burden 9
for asylum is also dispositive of withholding of removal 10
and CAT protection , which carry a higher burden

. See Lecaj 11

v. Holder , 616 F.3d 111, 119 (2d Cir. 2010). 12
For the foregoing reasons, the petition for review is 13

DENIED

. All pending motions and applications are DENIED 14

and stays VACATED. 15

FOR THE COURT: 16 Catherine O ’ Hagan Wolfe , 17 Clerk of Court 18 19