Chapagai v. Wilkinson ( 2021 )

18-3274
Chapagai v. Wilkinson
BIA
Lopez Defillo, IJ
A202 138 448
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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 17th day of February, two thousand twenty-one.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 SUSAN L. CARNEY,
9 MICHAEL H. PARK,
10 Circuit Judges.
11 _____________________________________
12
13 SHANKAR CHAPAGAI, AKA SHANKAR
14 CHAPAGAIN,
15 Petitioner,
16
17 v. 18-3274
18 NAC
19 ROBERT M. WILKINSON, ACTING
20 UNITED STATES ATTORNEY GENERAL,
21 Respondent. 1
22 _____________________________________
23
24 FOR PETITIONER: Dilli Raj Bhatta, Esq., Bhatta
25 Law & Associates, New York, NY.
26
1Pursuant to Fed. R. App. P. 43(c)(2), Acting Attorney General Robert M.
Wilkinson is automatically substituted as Respondent.
1 FOR RESPONDENT: Carl McIntyre, Assistant Director;
2 Brooke Marie Maurer, Trial
3 Attorney, Office of Immigration
4 Litigation, United States
5 Department of Justice, Washington,
6 DC.
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 Shankar Chapagai, a native and citizen of Nepal, seeks
12 review of an October 3, 2018, decision of the BIA affirming
13 an October 23, 2017, decision of an Immigration Judge (“IJ”)
14 denying asylum, withholding of removal, and protection under
15 the Convention Against Torture (“CAT”). In re Shankar
16 Chapagai, No. A 202 138 448 (B.I.A. Oct. 3, 2018), aff’g No.
17 A 202 138 448 (Immig. Ct. N.Y. City Oct. 23, 2017). We assume
18 the parties’ familiarity with the underlying facts and
19 procedural history.
20 We have reviewed both the IJ’s and BIA’s decisions “for
21 the sake of completeness.” Wangchuck v. Dep’t of Homeland
22 Sec., 448 F.3d 524, 528 (2d Cir. 2006). The applicable
23 standards of review are well established. See 8 U.S.C.
24 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d
2
1 Cir. 2009) (reviewing factual findings for substantial
2 evidence and questions of law and application of law to fact
3 de novo).
4 Chapagai alleged that between October and December 2013,
5 members of the Maoist Party threatened him multiple times and
6 beat him on one occasion because of his membership in the
7 Nepali Congress Party. We find no error in the agency’s
8 conclusion that the past harm did not rise to the level of
9 persecution.
10 Past persecution may be based on harm other than threats
11 to life or freedom, including “non-life-threatening violence
12 and physical abuse.” Beskovic v. Gonzales, 467 F.3d 223, 226
13 n.3 (2d Cir. 2006). In assessing whether harms rise to the
14 level of persecution, we have held that the question of
15 whether harm rises to the level of persecution “is necessarily
16 one of degree that must be decided on a case-by-case basis.”
17 Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d
18 Cir. 2006). We have described persecution as “an extreme
19 concept that does not include every sort of treatment our
20 society regards as offensive.” Mei Fun Wong v. Holder, 633
21 F.3d 64, 72 (2d Cir. 2011) (internal quotation marks omitted).
3
1 The agency considered Chapagai’s lack of lasting injury and
2 his choice not to seek professional medical attention. The
3 agency also examined the context of his harm, including that
4 the beating was by members of an opposing party rather than
5 the government, that Chapagai’s fellow villagers were
6 supporters of his party, and that the police took a report
7 and offered him assistance. See Jian Qiu Liu v. Holder, 632
8 F.3d 820, 822 (2d Cir. 2011) (finding no error in BIA’s
9 conclusion that physical attack by family planning officials
10 did not rise to the level of persecution where asylum
11 applicant “suffered only minor bruising” and the attack
12 happened prior to an arrest by local police); cf. Beskovic,
13 467 F.3d at 226 (requiring that agency “be sensitive to the
14 fact that even mistreatment that, in other contexts, could
15 fairly be characterized as . . . harassment, can take on an
16 entirely different character when officially inflicted on an
17 individual . . . detained on account of protected grounds”
18 (internal quotation marks and citation omitted)).
19 Chapagai argues that the agency did not assess his harm
20 cumulatively as required. See Manzur v. U.S. Dep’t of
21 Homeland Sec., 494 F.3d 281, 290 (2d Cir. 2007). However,
4
1 the IJ acknowledged both the harassment and the physical harm,
2 and the BIA explicitly concluded that the physical harm
3 combined with the threats did not rise to the level of
4 persecution. Because this finding is dispositive as to past
5 persecution, we do not reach the agency’s alternate finding
6 that Chapagai did not establish that he was harmed on account
7 of his political opinion. See INS v. Bagamasbad, 429 U.S.
8 24, 25 (1976) (“As a general rule courts and agencies are not
9 required to make findings on issues the decision of which is
10 unnecessary to the results they reach.”). Finally, absent a
11 showing of past persecution, Chapagai is not entitled to a
12 presumption of future persecution and is not eligible for
13 humanitarian asylum. See 8 C.F.R. § 1208.13(b)(1).
14 Chapagai does not otherwise argue that he established a well-
15 founded fear of future persecution or torture. See Yueqing
16 Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir.
17 2005) (deeming abandoned claim not raised in brief).
18 For the foregoing reasons, the petition for review is
19 DENIED.
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe,
22 Clerk of Court
5