18-1860

Gurung v. Barr

BIA

Wright, IJ

A201 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.

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 17th 4 day of August, two thousand twenty.

5

6 PRESENT:

7 GUIDO CALABRESI,

8 DENNY CHIN,

9 SUSAN L. CARNEY,

10 Circuit Judges.

11 _____________________________________

12

13 RAJU PUNCHO GURUNG, AKA

14 RAJUPUNCHO GURUNG, SUJAN GURUNG,

15 Petitioners,

16

17 v. 18-1860

18 NAC

19 WILLIAM P. BARR, UNITED STATES

20 ATTORNEY GENERAL,

21 Respondent.

22 _____________________________________

23

24 FOR PETITIONERS: Gary J. Yerman, Esq., New York, 

25 NY.

26

27 FOR RESPONDENT: Ethan P. Davis, Acting Assistant

28 Attorney General; Leslie McKay, 
2

1 Senior Litigation Counsel; 

2 Madeline Henley, Trial Attorney, 

3 Office of Immigration Litigation, 

4 United States Department of 

5 Justice, Washington, DC.

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 petition for review 

9 is DENIED.

10 Petitioners Raju Puncho Gurung and Sujan Gurung,

11 natives and citizens of Nepal, seek review of a May 25, 

12 2018, decision of the BIA affirming a July 19, 2017, 

13 decision of an Immigration Judge (“IJ”) denying Raju Puncho 

14 Gurung’s application for asylum, withholding of removal, 

15 and relief under the Convention Against Torture (“CAT”). 

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

17 997/998 (B.I.A. May 25, 2018), aff’g No. A 201 125 997/998

18 (Immig. Ct. N.Y. City July 19, 2017). We assume the 

19 parties’ familiarity with the underlying facts and 

20 procedural history.

21 Under the circumstances of this case, we have reviewed

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

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

24 F.3d 524, 528 (2d Cir. 2006). The applicable standards of 
3

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

2 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009) 

3 (reviewing factual findings for substantial evidence and 

4 questions of law and the application of law to undisputed 

5 facts de novo). 

6 To establish asylum eligibility, an applicant must show 

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

9 religion, nationality, membership in a particular social 

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

11 If the applicant is found to have suffered past 

12 persecution, he is “presumed to have a well-founded fear of 

13 future persecution on the basis of the original claim.” 8 

14 C.F.R. § 1208.13(b)(1). 

15 Past Persecution

16 The agency did not err in concluding that Gurung failed 

17 to show that he suffered past persecution at the hands of 

18 the Maoists. “[P]ersecution is ‘an extreme concept that 

19 does not include every sort of treatment our society 

20 regards as offensive.’” Mei Fun Wong v. Holder, 633 F.3d 

21 64, 72 (2d Cir. 2011) (quoting Ai Feng Yuan v. U.S. Dep’t 
4

1 of Justice, 416 F.3d 192, 198 (2d Cir. 2005)). Persecution 

2 may “encompass[] a variety of forms of adverse treatment, 

3 including non-life-threatening violence and physical 

4 abuse,” but the harm must be sufficiently severe, rising 

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

6 Justice, 433 F.3d 332, 341 (2d Cir. 2006) (internal 

7 quotation marks and brackets omitted). “‘[T]he difference 

8 between harassment and persecution is necessarily one of 

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

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

11 Beskovic v. Gonzales, 467 F.3d 223, 226 (2d Cir. 2006) 

12 (quoting Ivanishvili, 433 F.3d at 341). In evaluating a 

13 past persecution claim, the agency must consider the harm 

14 suffered in the aggregate. Poradisova v. Gonzales, 420 

15 F.3d 70, 79–80 (2d Cir. 2005).

16 The agency did not err in finding that Gurung’s past 

17 harm did not rise to the level of persecution because he 

18 testified to only one incident of physical harm and 

19 provided little detail regarding the attack or his 

20 injuries. While Gurung testified that Maoists threw rocks 

21 at his group of protestors in 2006, he escaped without 
5

1 harm. The only physical harm he suffered was in December 

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

3 detail and appears to have sustained only a minor injury. 

4 Accordingly, the agency did not err in concluding that 

5 these incidents did not rise to the level of persecution. 

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

7 2011) (finding no error in agency’s decision that harm did 

8 not rise to the level of persecution where applicant,

9 “prior to his arrest and detention[,] . . . suffered only 

10 minor bruising from an altercation with family planning 

11 officials, which required no formal medical attention and 

12 had no lasting physical effect”). 

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

14 do not constitute past persecution of Gurung. See Tao 

15 Jiang v. Gonzales, 500 F.3d 137, 141 (2d Cir. 2007) (“As a 

16 general principle, an asylum applicant cannot claim past 

17 persecution based solely on harm that was inflicted on a 

18 family member on account of that family member’s political 

19 opinion or other protected characteristic.”). And a letter 

20 threatening Gurung that was delivered to his parent’s home 

21 was not a sufficiently imminent threat so as to constitute 
6

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

2 (2d Cir. 2020) (“[U]nfulfilled threats alone generally do 

3 not rise to the level of persecution. To warrant a 

4 different conclusion, an applicant must adduce objective 

5 evidence that the threat was so imminent or concrete, or so 

6 menacing as itself to cause actual suffering or harm.”

7 (internal citations and quotation marks omitted)). Given 

8 the single, minor incident of physical harm and the one 

9 threatening letter, the agency did not err in determining 

10 that the cumulative harm did not rise to the level of 

11 persecution. See Mei Fun Wong, 633 F.3d at 72.

12 Fear of Future Persecution

13 Absent a finding of past persecution, an applicant may 

14 establish asylum eligibility based on a fear of future 

15 persecution, but the applicant must show that “he 

16 subjectively fears persecution and establish that his fear 

17 is objectively reasonable.” Ramsameachire v. Ashcroft, 357 

18 F.3d 169, 178 (2d Cir. 2004). Although a fear may be 

19 objectively reasonable “even if there is only a slight, 

20 though discernible, chance of persecution,” Diallo v. INS, 

21 232 F.3d 279, 284 (2d Cir. 2000), a fear is not objectively 
7

1 reasonable if it lacks “solid support” in the record and is 

2 merely “speculative at best,” Jian Xing Huang v. U.S. INS, 

3 421 F.3d 125, 129 (2d Cir. 2005). The agency did not err 

4 in determining that Gurung did not have an objectively 

5 reasonable fear of future persecution.

6 First, there is minimal record support for his claim 

7 that Maoists remain interested in him. A 2016 letter from 

8 a leader of a district development society states that 

9 Maoists still want revenge against Gurung, but the letter 

10 does not provide any basis for that information. 

11 Additionally, Gurung did not testify that the Maoists have 

12 looked for him since January 2010. And he conceded that he 

13 has not been politically active in the United States. 

14 Second, the fact that the Maoists have not followed 

15 through on threats against Gurung’s family despite his 

16 father’s alleged support for the monarchy weighs against a 

17 finding that Gurung has an objectively reasonable fear of 

18 future persecution. See Melgar de Torres v. Reno, 191 F.3d 

19 307, 313 (2d Cir. 1999) (applicant’s claimed fear of future 

20 persecution is weakened when similarly situated family 

21 members continue to live unharmed in petitioner’s native 
8

1 country). 

2 Finally, there is limited support for Gurung’s claim 

3 that some Maoists continue to persecute people who do not 

4 support their political position. Gurung points to a 2010 

5 U.S. State Department Report identifying a Maoist attack on 

6 a district president, but this one incident from 2009 that 

7 involved a district president from a different political 

8 party does not establish that Gurung would be singled out 

9 for his pro-monarchy political opinion. See 8 C.F.R. 

10 § 1208.13(b)(2)(iii). While this 2010 report notes reports

11 of incidents of torture by Maoists, it does not identify 

12 the type of victims. And although a later report from 2013

13 states that a breakaway faction of the Maoist party 

14 committed acts of violence, it is insufficient to show that 

15 Gurung would be singled out for persecution because it does 

16 not detail the frequency of the violence or reflect that 

17 Maoists are targeting their political opponents. Several 

18 additional sources address issues related to holding 

19 Maoists accountable for violence during the civil war but 

20 do not discuss ongoing Maoist violence. Accordingly, 

21 Gurung’s country conditions evidence does not support his
9

1 claim that Maoists would single him out for persecution. 

2 See Jian Xing Huang, 421 F.3d at 129.

3 In sum, the agency did not err in determining that 

4 Gurung failed to state a well-founded fear of future 

5 persecution because he did not establish that Maoists 

6 continue to be interested in him, his family has remained 

7 unharmed in Nepal, and the country conditions evidence does 

8 not reflect that similarly-situated individuals are singled 

9 out for harm. See id. Gurung’s failure to meet his burden 

10 for asylum is also dispositive of withholding of removal 

11 and CAT protection, which carry a higher burden. See Lecaj 

12 v. Holder, 616 F.3d 111, 119 (2d Cir. 2010). 

13 For the foregoing reasons, the petition for review is

14 DENIED. All pending motions and applications are DENIED 

15 and stays VACATED.

16 FOR THE COURT: 

17 Catherine O’Hagan Wolfe,

18 Clerk of Court

19