Gautam v. Barr ( 2020 )

18-1749
Gautam v. Barr
BIA
Christensen, IJ
A202 079 024
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
4 New York, on the 4th day of November, two thousand twenty.
5
6 PRESENT:
7 DEBRA ANN LIVINGSTON,
8 Chief Judge,
9 DENNY CHIN,
10 SUSAN L. CARNEY,
11 Circuit Judges.
12 _____________________________________
13
14 TILAK NATH GAUTAM,
15 Petitioner,
16
17 v. 18-1749
18 NAC
19 WILLIAM P. BARR, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Khagendra Gharti-Chhetry, New
25 York, NY.
26
27 FOR RESPONDENT: Joseph H. Hunt, Assistant
28 Attorney General; Kiley Kane, Paul
1 Fiorino, Senior Litigation
2 Counsel, 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 Tilak Nath Gautam, a native and citizen of
12 Nepal, seeks review of a May 21, 2018, decision of the BIA
13 affirming a June 14, 2017, decision of an Immigration Judge
14 (“IJ”) denying his application for asylum, withholding of
15 removal, and relief under the Convention Against Torture
16 (“CAT”). In re Tilak Nath Gautam, No. A202 079 024 (B.I.A.
17 May 21, 2018), aff’g No. A202 079 024 (Immig. Ct. N.Y. City
18 June 14, 2017). We assume the parties’ familiarity with the
19 underlying facts and procedural history.
20 Under the circumstances of this case, we have reviewed
21 both the IJ’s and the BIA’s opinions “for the sake of
22 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
23 524, 528 (2d Cir. 2006). The applicable standards of review
24 are well established. See 8 U.S.C. § 1252(b)(4)(B); Lecaj
25 v. Holder, 616 F.3d 111, 114 (2d Cir. 2010).
2
1 I. Internal Relocation
2 It is undisputed that Gautam established past persecution
3 in Nepal on account of his membership in the Nepali Congress
4 Party (“NCP”). Accordingly, he benefits from a presumption
5 of a well-founded fear of future persecution. 8 C.F.R.
6 § 1208.13(b)(1). However, the Government may rebut this
7 presumption if a preponderance of the evidence shows he can
8 safely and reasonably relocate within the country of removal.
9 8 C.F.R. § 1208.13(b)(1)(i)(B), (ii); see Singh v. BIA, 435
10 F.3d 216, 219 (2d Cir. 2006) (“Asylum in the United States is
11 not available to obviate re-location to sanctuary in one’s
12 own country.”). In deciding whether internal relocation is
13 reasonable, an IJ “consider[s] . . . whether the applicant
14 would face other serious harm in the place of suggested
15 relocation; any ongoing civil strife within the country;
16 administrative, economic, or judicial infrastructure;
17 geographical limitations; and social and cultural
18 constraints, such as age, gender, health, and social and
19 familial ties.” 8 C.F.R. § 1208.13(b)(3).
20 Substantial evidence supports the agency’s conclusion
21 that Gautam could reasonably avoid future persecution by
22 relocating within Nepal because he previously relocated
3
1 without experiencing any harm. Gautam testified that, in
2 2005, members of the Nepal Communist Party-Maoist (“Maoists”)
3 kidnapped him from his home in Baglung and beat him until he
4 was unconscious because he refused to join their political
5 party and was active in a student organization affiliated
6 with the NCP. After the attack, Gautam went into hiding by
7 moving to Pokhara, which was three hours from Baglung by car.
8 Maoists called Gautam at the hotel where he worked in Pokhara
9 and threatened him, but they did not physically harm him
10 during the seven years that he lived there. While in Pokhara,
11 Gautam officially joined the NCP and continued his political
12 activities. In 2013, after he returned to Baglung, Maoists
13 again beat him until he was unconscious. Gautam went into
14 hiding in Kathmandu in December 2013, leaving Nepal in March
15 2014 upon learning that Maoists had discovered his location.
16 The agency reasonably determined that although Gautam
17 received telephonic threats during his time in Pokhara, there
18 was no indication that he was at risk for continued harm if
19 he relocated there or to Kathmandu. See 8 U.S.C.
20 § 1252(b)(4)(B) (providing that “the administrative findings
21 of fact are conclusive unless any reasonable adjudicator
22 would be compelled to conclude to the contrary”). There is
4
1 no evidence that Gautam ever encountered Maoists during the
2 seven years he lived in Pokhara, even though they knew his
3 location and in spite of his political activism while living
4 there. Further, there is no evidence that Gautam encountered
5 Maoists in the four months that he lived in Kathmandu before
6 departing for the United States, notwithstanding his claim
7 that they had discovered his location. Given Gautam’s
8 previous ability to live, work, and actively support the NCP
9 in other parts of Nepal, and the lack of evidence that his
10 persecutors were actively looking for him in those areas, the
11 preponderance of the evidence supports the agency’s
12 determination that he could internally relocate.
13 II. Humanitarian Asylum
14 If an asylum applicant can show either “compelling
15 reasons for being unwilling or unable to return to the country
16 arising out of the severity of the past persecution” or that
17 he faces “other serious harm” upon his return, an IJ may grant
18 humanitarian asylum in the absence of a well-founded fear of
19 future persecution. 8 C.F.R. § 1208.13(b)(1)(iii)(A), (B).
20 A grant of humanitarian asylum based on severe past
21 persecution “is reserved for atrocious forms of persecution,”
22 Kone v. Holder, 596 F.3d 141, 152 (2d Cir. 2010) (quotation
5
1 marks and citation omitted), and an applicant must
2 demonstrate both “severe harm” and “long-lasting physical or
3 mental effects of his persecution,” Jalloh v. Gonzales, 498
4 F.3d 148, 151–52 (2d Cir. 2007) (quotation marks and citation
5 omitted).
6 Gautam’s argument that the severity of his past
7 persecution qualifies him for humanitarian asylum fails.
8 First, Gautam’s alleged past persecution, which consisted of
9 beatings on two occasions, was not sufficiently severe to
10 justify humanitarian asylum. See Hoxhallari v. Gonzales, 468
11 F.3d 179, 182, 184 (2d Cir. 2006) (upholding denial of
12 humanitarian asylum to petitioner who was beaten and harassed
13 on six occasions). Second, Gautam has not claimed continuing
14 effects of his past persecution. See Jalloh, 498 F.3d at
15 151–52. Gautam also asserts that he will suffer “other
16 serious harm,” i.e., death, if he returns to Nepal. But, as
17 explained above, substantial evidence supports the agency’s
18 conclusion that he will not be harmed if he relocates
19 internally. That conclusion applies with equal force to his
20 argument about “other serious harm.”
21 III. CAT Relief
22 Contrary to Gautam’s position, because his CAT claim
6
1 rested on the same factual basis as his claims for asylum and
2 withholding of removal, the agency’s determination that he
3 could safely relocate is dispositive of his CAT claim as well.
4 See Lecaj, 616 F.3d at 119–20 (holding that applicant who
5 fails to establish fear of harm required for asylum
6 “necessarily” fails to meet higher standard for withholding
7 of removal and CAT relief). Gautam’s argument that
8 Ramsameachire v. Ashcroft, 357 F.3d 169, 184–85 (2d Cir.
9 2004), requires the agency to independently analyze his CAT
10 claim is misplaced. We clarified in Paul v. Gonzales, 444
11 F.3d 148, 156–57 (2d Cir. 2006), that a CAT claim may fail if
12 its factual basis is the same as that of a rejected asylum
13 claim. The agency’s conclusion that Gautam can evade future
14 persecution by Maoists by relocating within Nepal is also
15 fatal to a claim that he will be tortured by those same
16 Maoists if he returns to Nepal. See Lecaj, 616 F.3d at 119–
17 20; Paul, 444 F.3d at 156–57.
18 For the foregoing reasons, the petition for review is
19 DENIED. All pending motions and applications are DENIED and
20 stays VACATED.
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe,
23 Clerk of Court
7