Opinion
19-5 NAC
09-16-2020
DILLI RAM BAGALE, Petitioner, v. WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent.
FOR PETITIONER: Jason Schaffer, Mungoven & Associates, P.C., New York, NY. FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; Anthony C. Payne, Assistant Director; Joseph D. Hardy, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
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 for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 16th day of September, two thousand twenty. PRESENT: DEBRA ANN LIVINGSTON, Chief Judge , JON O. NEWMAN, REENA RAGGI, Circuit Judges.
FOR PETITIONER:
Jason Schaffer, Mungoven & Associates, P.C., New York, NY.
FOR RESPONDENT:
Joseph H. Hunt, Assistant Attorney General; Anthony C. Payne, Assistant Director; Joseph D. Hardy, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals ("BIA") decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED.
Petitioner Dilli Ram Bagale, a native and citizen of Nepal, seeks review of a BIA decision affirming an Immigration Judge ("IJ") decision denying Bagale's application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). In re Dilli Ram Bagale, No. A200 176 194 (B.I.A. Dec. 10, 2018), aff'g No. A200 176 194 (Immig. Ct. N.Y. City Nov. 8, 2017). We assume the parties' familiarity with the underlying facts and procedural history.
Under the circumstances of this case, we have reviewed both the IJ's and BIA's decisions "for the sake of completeness." Wangchuck v. Dep't of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The applicable standards of review are well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009) (reviewing factual findings for substantial evidence and questions of law and the application of law to undisputed facts de novo).
To establish asylum eligibility, an applicant must show that he has suffered past persecution, or has a well-founded fear of future persecution, "on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42). If the applicant is found to have suffered past persecution, he is presumed to have a well-founded fear of future persecution on the basis of the original claim. 8 C.F.R. § 1208.13(b)(1).
Past Persecution
"[P]ersecution is an extreme concept that does not include every sort of treatment our society regards as offensive." Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d Cir. 2011) (internal quotation marks omitted). Rather, persecution may "encompass[] a variety of forms of adverse treatment, including non-life-threatening violence and physical abuse," but the harm must be sufficiently severe, rising above "mere harassment." Ivanishvili v. U.S. Dep't of Justice, 433 F.3d 332, 341 (2d Cir. 2006) (internal quotation marks and brackets omitted). "'[T]he difference between harassment and persecution is necessarily one of degree,' [and] the degree must be assessed with regard to the context in which the mistreatment occurs." Beskovic v. Gonzales, 467 F.3d 223, 226 (2d Cir. 2006) (quoting Ivanishvili, 433 F.3d at 341). In evaluating a past persecution claim, the agency must consider the harm suffered in the aggregate. See Poradisova v. Gonzales, 420 F.3d 70, 79-80 (2d Cir. 2005).
The agency did not err in concluding that Bagale's past harm did not rise to the level of persecution because the Maoists did not physically harm Bagale besides slapping him once in 2009. The only resulting injury was minor, a cut on Bagale's leg, which occurred while he was running away. See Jian Qiu Liu v. Holder, 632 F.3d 820, 822 (2d Cir. 2011) (finding no error in agency's conclusion that harm did not rise to the level of persecution where applicant, "prior to his arrest and detention . . . suffered only minor bruising from an altercation . . . which required no formal medical attention and had no lasting physical effect"). Additionally, the fact that this one incident of physical harm did not occur in the context of an arrest or detention further supports the agency's conclusion that it did not rise to the level of persecution. Cf. Beskovic, 467 F.3d at 226 (stating that "'minor beating' or, for that matter, any physical degradation designed to cause pain, humiliation, or other suffering, may rise to the level of persecution if it occurred in the context of an arrest or detention on the basis of a protected ground").
The only other past harm consisted of unfulfilled threats, which generally do not qualify as persecution. See Gui Ci Pan v. U.S. Att'y Gen., 449 F.3d 408, 412-13 (2d Cir. 2006) (noting that this court and other circuits have rejected claims of past persecution based on threats); Guan Shan Liao v. U.S. Dep't of Justice, 293 F.3d 61, 70 (2d Cir. 2002) (stating that "threat of detention . . . itself . . . is not past persecution"). The Maoist's unfulfilled threats to harm Bagale if he did not change his political affiliation were not "so imminent or concrete, or so menacing as [themselves] to cause actual suffering or harm." Scarlett v. Barr, 957 F.3d 316, 328 (2d Cir. 2020) (citations and internal quotation marks omitted).
Given the lack of imminence and follow-through on threats over the course of a ten-year period and the single minor incident of physical harm, the agency did not err in determining that Bagale did not suffer past persecution. See Mei Fun Wong, 633 F.3d at 72.
Fear of Future Persecution
Absent past persecution, an applicant may establish asylum eligibility based on a subjective fear of future persecution that is objectively reasonable. See Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). Although a fear may be objectively reasonable "even if there is only a slight, though discernible, chance of persecution," Diallo v. INS, 232 F.3d 279, 284 (2d Cir. 2000), a fear is not objectively reasonable if it lacks "solid support" in the record and is merely "speculative at best," Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005). To demonstrate a well-founded fear, an applicant must show either a reasonable possibility that he would be singled out for persecution or that the country of removal has a pattern or practice of persecuting individuals similarly situated to him. See 8 C.F.R. § 1208.13(b)(2)(iii).
Bagale argues that he has a well-founded fear of persecution because Maoists threatened him with harm and death several times between 1999, when he joined the Nepali Congress Party, and 2011, when he left Nepal. The only harm actually to befall Bagale, however, was the aforementioned slap and cut. The agency reasonably concluded that such minor injuries do not give rise to a well-founded fear of future persecution.
Bagale also argues that he has a well-founded fear of future persecution because, in January 2017, the Maoists visited his wife at her home in in Nepal, demanded money and political support from the family, and threatened to harm Bagale if he did not comply. The fact that Bagale's wife remains unharmed, however, supports the agency's conclusion that Bagale does not have a well-founded fear of future persecution. See Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999) (holding applicant's claimed fear of future persecution weakened when similarly situated family members continue to live unharmed in applicant's native country). Moreover, as the agency explained, Bagale identified no reason why he would be singled out. He was not a leader of the Nepali Congress Party and had not remained active in the party while in the United States. Nor did the country conditions evidence support a finding of future persecution because the prime minister of Nepal at the time of the hearing was from the Nepali Congress Party and that party had recently received the most electoral support. See 8 C.F.R. § 1208.13(b)(2)(iii). Bagale has not pointed to any country conditions evidence in the record that Maoists are targeting Nepali Congress Party members.
In sum, the agency did not err in determining that Bagale's fear of future persecution was not well founded because (a) the only harm that Bagale suffered during more than a decade of membership in the Nepali Congress Party was a single slap and cut; (b) his wife remained unharmed in Nepal; (c) at the time of his hearing, the Nepali Congress Party had recently received the most electoral support; and (d) there was no record evidence that Nepali Congress Party members continued to be targeted by Maoists. See Jian Xing Huang, 421 F.3d at 129 (requiring that fear of future persecution have "solid support" in record).
For the foregoing reasons, the petition for review is DENIED. All pending motions and applications are DENIED and stays VACATED.
FOR THE COURT:
Catherine O'Hagan Wolfe,
Clerk of Court