17-1135 Sherpa v. Barr BIA Vomacka, IJ A089 252 045/046

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.

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 18th day of March, two thousand nineteen.

PRESENT: ROBERT D. SACK, DEBRA ANN LIVINGSTON, CHRISTOPHER F. DRONEY, Circuit Judges. _____________________________________

PASANG DAWA SHERPA, ANG CHHOKPA SHERPA, Petitioners,

v. 17-1135 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONERS: Ramesh K. Shrestha, New York, NY.

FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Paul Fiorino, Senior Litigation Counsel; Erik R. Quick, 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.

Petitioners Pasang Dawa Sherpa (“Sherpa”) and Ang Chhokpa

Sherpa, natives and citizens of Nepal, seek review of a March

28, 2017, decision of the BIA affirming a June 16, 2016,

decision of an Immigration Judge (“IJ”) denying Pasang Dawa

Sherpa’s application for asylum, withholding of removal, and

relief under the Convention Against Torture (“CAT”).1 In re

Pasang Dawa Sherpa, Ang Chhokpa Sherpa, Nos. A 089 252 045/046

(B.I.A. Mar. 28, 2017), aff’g Nos. A 089 252 045/046 (Immig.

Ct. N.Y. City June 16, 2016). We assume the parties’

familiarity with the underlying facts and procedural history

in this case.

Under the circumstances of this case, we have reviewed

both the IJ’s and BIA’s decisions. Wangchuck v. Dep’t of

Homeland Sec.,

(2d Cir. 2006). We review

the agency’s legal conclusions de novo and its factual

1 Petitioner Ang Chhokpa Sherpa is a derivative beneficiary on the asylum application. Accordingly, this order refers primarily to the lead petitioner. 2 findings under the substantial evidence standard. Y.C. v.

Holder,

, 332 (2d Cir. 2013). “The

administrative findings of fact are conclusive unless any

reasonable adjudicator would be compelled to conclude to the

contrary.”

(b)(4)(B).

In denying Sherpa’s original petition for review, we

upheld the agency’s determination that Sherpa had not

suffered harm amounting to past persecution, and Sherpa does

not challenge that finding. Thus, he had the burden of

establishing a well-founded fear of future persecution.

(a)(42), 1158(b)(1)(B)(i). To do this, he was

required to show that he subjectively fears persecution and

that his fear is objectively reasonable. Ramsameachire v.

Ashcroft,

(2d Cir. 2004); see also Jian

Xing Huang v. U.S. INS,

(2d Cir. 2005) (“In

the absence of solid support in the record,” an asylum

applicant’s fear of persecution is “speculative at best”).

This can be satisfied either by establishing “a reasonable

possibility that [he] would be singled out individually for

persecution . . . or “a pattern or practice . . . of

persecution of a group of persons similarly situated to the

applicant on account of . . . political opinion.” 8 C.F.R. 3 § 1208.13(b)(2)(iii); Y.C., 741 F.3d at 332. As discussed

below, the agency reasonably concluded that Sherpa failed to

establish an objectively reasonable fear of persecution

because the letters from the witnesses in Nepal were entitled

to little evidentiary weight and the country conditions

evidence did not show continuing Maoist violence against

those who had refused to support the Maoists during the civil

armed conflict, which ended in 2006.

Between 2012 and 2015, Sherpa submitted the following

evidence from Nepal: letters from his brother, the local

village development committee, and his former neighbor, as

well as letters allegedly delivered by the Maoists to Sherpa’s

brother and a 2012 letter from a police inspector certifying

Sherpa’s brother’s report that he was beaten by Maoists. We

generally defer to the agency’s weighing of the evidence, and

the agency did not err in discounting these letters because

they were unsworn and authored by witnesses who were not

available for cross examination. Y.C., 741 F.3d at 334. And

the agency explained why the letters were unreliable:

Sherpa’s brother alleged that Sherpa was “tortured” by

Maoists in the past, which conflicted with Sherpa’s own

statements because he only alleged one instance of physical 4 harm (that a Maoist hit him on the shoulder with the butt of

a gun in 2002); the village development committee’s and police

inspector’s letters were based almost entirely on information

provided by Sherpa’s brother; the letters were cursory and

did not give details; and the letters did not adequately

explain why the Maoists continued to target Sherpa or identify

any recent Maoist violence against other residents of his

village.

The lack of evidence that Maoists targeted anyone else

from Sherpa’s village, or continued to punish anyone who

refused to join or donate to their cause during the civil

war, made it unlikely that Maoists would seek to harm Sherpa

if he returns to Nepal. The agency also noted that there was

no explanation for why the Maoists waited until 2012 to begin

questioning Sherpa’s brother about Sherpa’s whereabouts and

found that this six-year gap further undermined the

plausibility of Sherpa’s evidence that Maoists continued to

look for him.

The agency also reasonably determined that the general

country conditions evidence undermined Sherpa’s fear of

future persecution. The most recent country reports stated

that Nepal had implemented a new constitution, held free 5 elections, and that the Maoists participated in the

government as a minority party. The reports reflected that

Nepal was slowly moving forward with the establishment of a

Truth and Reconciliation Commission, and that some Maoists

had been prosecuted for prior violence. Sherpa submitted

news articles reporting on Maoist rallies and protests in

other regions of the country, including some reports of

physical violence in connection with a strike to protest the

new constitution. But the evidence did not reflect

continuing armed conflict or Maoist violence against those

who refused to support them during the civil war.

In sum, given the lack of any reliable objective evidence

that Maoists continued to target individuals who had refused

to support them during the civil war, substantial evidence

supports the agency’s determination that Sherpa’s continuing

fear of the Maoists was not objectively reasonable.

For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, any stay of removal

that the Court previously granted in this petition is VACATED,

and any pending motion for a stay of removal in this petition

is DISMISSED as moot. Any pending request for oral argument

in this petition is DENIED in accordance with Federal Rule of 6 Appellate Procedure 34(a)(2), and Second Circuit Local Rule

34.1(b).

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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