18-1517 Sherpa v. Barr BIA Christensen, IJ A202 130 883 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 23rd day of July, two thousand twenty.

PRESENT: REENA RAGGI, DEBRA ANN LIVINGSTON, JOSEPH F. BIANCO, Circuit Judges. _____________________________________

NIMA SANGE SHERPA, Petitioner,

v. 18-1517 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Khagendra Gharti-Chhetry, New York, NY.

FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; Stephen J. Flynn, Assistant Director; Annette M. Wietecha, 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 Nima Sange Sherpa, a native and citizen of

Nepal, seeks review of a May 2, 2018 decision of the BIA

affirming a June 22, 2017 decision of an Immigration Judge

(“IJ”) denying Sherpa’s application for asylum, withholding

of removal, and relief under the Convention Against Torture

(“CAT”). In re Nima Sange Sherpa, No. A 202 130 883 (B.I.A.

May 2, 2018), aff’g No. A 202 130 883 (Immig. Ct. N.Y. City

June 22, 2017). We assume the parties’ familiarity with the

underlying facts and procedural history in this case.

Assuming arguendo that Sherpa experienced past

persecution when Maoists threatened and attacked him on

account of his involvement with the Nepali Congress Party

(“NCP”) and that he was therefore entitled to a presumption

of a well-founded fear of future persecution, the agency did

not err in concluding that Sherpa was not eligible for relief

2 because the presumption was rebutted by evidence showing that

he could safely and reasonably relocate in Nepal. See

(b)(1); Surinder Singh v. BIA,

(2d Cir. 2006) (“Asylum in the United States is not

available to obviate re-location to sanctuary in one’s own

country.”). In determining whether internal relocation

is reasonable, the agency “consider[s] . . . whether the

applicant would face other serious harm in the place of

suggested relocation; any ongoing civil strife within the

country; administrative, economic, or judicial

infrastructure; geographical limitations; and social and

cultural constraints, such as age, gender, health, and social

and familial ties.”

(b)(3).

Substantial evidence supports the agency’s conclusion

that Sherpa could reasonably relocate within Nepal because he

previously relocated to Kathmandu and lived there for eight

or nine months without experiencing any harm. Sherpa

asserted that he felt unsafe in Kathmandu because the Maoists’

leaders lived there, and that he was therefore “virtually in

hiding” during this period. Certified Administrative Record

(“CAR”) at 238. But he also claimed that he was able to

3 travel between his home and work without incident. There is

no evidence that Maoists in Kathmandu were interested in

harming Sherpa, or that the Maoists who had previously

threatened him ever contacted or attempted to contact him or

his family—which has since moved to a nearby village—anywhere

but in the village where he was previously abused.

The agency also accurately discussed the country

conditions evidence, which showed that: (1) the armed

conflict with the Maoists formally ended in 2006; (2) there

was some Maoist violence in connection with the 2013 election

but the elections were free and fair; (3) the NCP became the

controlling party in 2017 national elections; (4) the

previous Maoist prime minister peacefully stepped aside

following those elections; (5) the breakaway Maoist factions

that continue to cause some violence are not part of the

unified national Maoist party; and (6) Nepali police arrest

Maoists engaged in violence. While the agency did not

explicitly discuss whether social or economic constraints

rendered relocation unreasonable, the relevant regulation

instructs that these “factors may, or may not, be relevant,

depending on all the circumstances of the case, and are not

4 necessarily determinative of whether it would be reasonable

for the applicant to relocate.”

(b)(3).

And Sherpa’s previous period living and working in Kathmandu

established the social and economic feasibility of such a

relocation.

Because Sherpa’s claims all rested on the same factual

predicate and the agency reasonably found that Sherpa did not

have a well-founded fear of persecution as required for

asylum, he “necessarily” failed to meet the higher standards

for withholding of removal and CAT relief. Lecaj v. Holder,

, 119–20 (2d Cir. 2010).

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

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