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.,

524, 528 (2d Cir. 2006). The applicable standards of review

24 are well established. See

(b)(4)(B); Lecaj

25 v. Holder,

(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

(b)(1)(i)(B), (ii); see Singh v. BIA, 435

(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.”

(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.

(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,

(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

, 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

(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,

, 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

, 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

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