Adhikari v. Garland ( 2023 )

20-1457(L)
Adhikari v. Garland
BIA
Sponzo, IJ
A209 870 432
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
for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 31st day of January, two thousand twenty-
three.
PRESENT:
REENA RAGGI,
RICHARD J. SULLIVAN,
WILLIAM J. NARDINI,
Circuit Judges.
_____________________________________
PRAJMAL ADHIKARI,
Petitioner,
20-1457(L),
v. 21-6165(Con)
NAC
MERRICK B. GARLAND, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Khagendra Gharti-Chhetry, Esq.,
New York, NY.
FOR RESPONDENT: Brian Boynton, Acting Assistant
Attorney General, Civil Division;
Melissa Neiman-Kelting, Assistant
Director; Jeffrey M. Hartman,
Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, DC.
UPON DUE CONSIDERATION of these petitions for review of
Board of Immigration Appeals (“BIA”) decisions, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petitions for review
are DENIED.
Petitioner Prajmal Adhikari, a native and citizen of
Nepal, seeks review of the BIA’s affirmance of an Immigration
Judge’s (“IJ’s”) denial of asylum, withholding of removal,
and relief under the Convention Against Torture (“CAT”), see
In re Prajmal Adhikari, No. A 209 870 432 (B.I.A. Apr. 2,
2020), aff’g No. A209 870 432 (Immigr. Ct. N.Y.C. July 16,
2018), and of the BIA’s denial of his motion to reopen, see
In re Prajmal Adhikari, No. A209 870 432 (B.I.A. Mar. 3,
2021). We assume the parties’ familiarity with the
underlying facts and procedural history.
A. Denial of Asylum and Related Relief
We have considered both the IJ’s and BIA’s decisions.
See Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528
2
(2d Cir. 2006). We review the agency’s factual findings for
substantial evidence, and we review questions of law de novo.
See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d
510, 513 (2d Cir. 2009).
To establish eligibility for asylum and withholding of
removal, an applicant must establish past persecution or a
well-founded fear or likelihood of persecution “on account of
race, religion, nationality, membership in a particular
social group, or political opinion.” 8 U.S.C. § 1101(a)(42);
see also id. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A); 8 C.F.R.
§§ 1208.13(b), 1208.16(b). “[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) (quotation marks omitted). “To
qualify as persecution the conduct at issue must be
attributable to the government, whether directly because
engaged in by government officials, or indirectly because
engaged in by private persons whom the government is unable
or unwilling to control.” Singh v. Garland, 11 F.4th 106,
114 (2d Cir. 2021) (quotation marks omitted). “Under the
unwilling-or-unable standard, ‘a finding of persecution
3
ordinarily requires a determination that government
authorities, if they did not actually perpetrate or incite
the persecution, condoned it or at least demonstrated a
complete helplessness to protect the victims.’” Id. at 114-
15 (quoting Galina v. INS, 213 F.3d 955, 958 (7th Cir. 2000)).
Before this court, Adhikari does not challenge the IJ’s
and BIA’s determinations that he failed to establish the
Nepali government’s inability or unwillingness to control the
private actors who attacked him and whom he claims to fear,
and so he has abandoned any challenge to those findings. See
Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d Cir.
2005). Even if Adhikari had not abandoned that argument, we
would deny review because Adhikari did not present evidence
sufficient to attribute Maoist activity to the government.
His unilateral decision not to report attacks to the
authorities, based on his belief that the police and the
Maoists were “working with each other” demonstrates only his
subjective belief that the government condoned the Maoists’
conduct. On such a record, neither the IJ nor the BIA was
required to attribute Adhikari’s attacks to the national
4
government. See Singh v. Garland, 11 F.4th at 116.
Because this issue is dispositive of asylum and
withholding of removal, see id. at 114, we need not reach the
agency’s alternative dispositive bases for denying those
forms of relief.
To the extent Adhikari challenges the denial of CAT
relief, denial was warranted because the record supports the
IJ’s and BIA’s conclusions that Adhikari could reasonably
relocate within Nepal to avoid any likelihood of torture.
See Singh, 11 F.4th at 118 (holding that petitioner’s “ability
to relocate internally means that he cannot establish [the]
likelihood of torture” necessary to state a claim for CAT
relief). Adhikari had lived and worked in Kathmandu unharmed
for more than two years after the Maoists’ attack and for an
additional three months after the Maoists purportedly
discovered his location. See Gautam v. Barr, 832 F. App’x
740, 743 (2d Cir. 2020) (denying review where “there is no
evidence that [petitioner] encountered Maoists in the four
months that he lived in Kathmandu before departing for the
United States, notwithstanding his claim that they had
discovered his location”); Kandel v. Barr, 832 F. App’x 67,
5
71 (2d Cir. 2020) (denying review where petitioner had “lived
unharmed in Kathmandu for approximately a year” before
entering United States). 1
B. Motion to Reopen
We review the denial of motions to reopen for abuse of
discretion and any country conditions determinations for
substantial evidence. Jian Hui Shao v. Mukasey, 546 F.3d
138, 168–69 (2d Cir. 2008). As the BIA found, Adhikari’s
October 2020 motion to reopen was untimely because he filed
it more than six months after the BIA’s April 2020 order of
removal. See 8 U.S.C. § 1229a(c)(7)(C)(i) (providing 90-day
deadline for motions to reopen). The time limit for
reopening may be excused to apply for asylum “based on changed
country conditions arising in the country of nationality or
the country to which removal has been ordered, if such
evidence is material and was not available and would not have
1Adhikari argues the IJ erred by failing to discuss evidence of ongoing
civil strife in Nepal that might undermine the relocation conclusion.
“[W]e presume that an IJ has taken into account all of the evidence
before him, unless the record compellingly suggests otherwise,” Xiao Ji
Chen v. U.S. Dep’t of Just., 471 F.3d 315, 336 n.17 (2d Cir.2006), and
Adhikari points to no such record evidence here. In any event, Adhikari
points to no evidence of civil strife that would undermine the IJ’s
finding.
6
been discovered or presented at the previous proceedings.”
8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R.
§ 1003.2(c)(3)(ii).
Adhikari does not challenge the BIA’s reasonable
determinations that his country conditions evidence showed a
continuation rather than a change in conditions in Nepal since
his hearing before the IJ, and that his family’s interaction
with Maoists while he was in the United States constituted a
new personal circumstance that did not excuse the time limit.
See Yueqing Zhang, 426 F.3d at 541 n.1, 545 n.7; see also
Weinong Lin v. Holder, 763 F.3d 244, 246–47 (2d Cir. 2014)
(recognizing that “changed circumstances” standard permitting
late-filed asylum applications “is more expansive” than
“change in ‘country conditions’” standard to excuse deadline
for reopening); In re S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A.
2007) (“In determining whether evidence accompanying a motion
to reopen demonstrates a material change in country
conditions that would justify reopening, [the BIA] compare[s]
the evidence of country conditions submitted with the motion
to those that existed at the time of the merits hearing
below.”).
7
Adhikari’s only argument on appeal is that the Himalayan
Times published an article “a few weeks before [his] merits
hearing before the [IJ]” explaining that, after the events
experienced by Adhikari, “the Maoists joined the government
of Nepal as a ruling party, and obtained the control of some
government ministries, including the Home Ministry, which
oversees the country’s police departments,” Pet.’s Supp. Br.
15-16, and that the Maoists’ new status qualifies as a changed
country condition. Adhikari fails to explain why this
information was not available to him during the proceedings
below, in the absence of which there is no reason for us to
depart from the rule that this court will decide a petition
“only on the administrative record on which the order of
removal is based.” 8 U.S.C. § 1252(b)(4)(A); Xiao Xing Ni
v. Gonzales, 494 F.3d 260, 262 (2d Cir. 2007) (stating that
court will not remand for consideration of evidence outside
the record). Nor does Adhikari explain why the Himalayan
Times article is material given that he had already presented
the IJ with three other articles discussing the Maoists merger
with Nepal’s ruling party.
Accordingly, Adhikari’s motion does not fall under
8
§ 1229a(c)(7)(C)(ii)’s exception to § 1229a(c)(7)(C)(i)’s
timeliness bar.
For the foregoing reasons, the petitions for review are
DENIED. All pending motions and applications are DENIED and
stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
9