19-82 Bhattrai v. Garland BIA Conroy, IJ A205 647 151 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 10th day of February, two thousand twenty- 5 two. 6 7 PRESENT: 8 REENA RAGGI, 9 GERARD E. LYNCH, 10 DENNY CHIN, 11 Circuit Judges. 12 _____________________________________ 13 14 KABITA BHATTRAI, 15 Petitioner, 16 17 v. 19-82 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Ramesh K. Shrestha, New York, NY. 25 26 FOR RESPONDENT: Jody H. Hunt, Assistant Attorney 27 General; Ernesto H. Molina, Jr. , 28 Deputy Director; Nancy F. Safavi, 1 Trial Attorney, Office of 2 Immigration Litigation, United 3 States Department of Justice, 4 Washington, DC.

5 UPON DUE CONSIDERATION of this petition for review of a

6 Board of Immigration Appeals (“BIA”) decision, it is hereby

7 ORDERED, ADJUDGED, AND DECREED that the petition for review

8 is DENIED.

9 Petitioner Kabita Bhattrai, a native and citizen of

10 Nepal, seeks review of a December 13, 2018, decision of the

11 BIA affirming a November 9, 2017, decision of an Immigration

12 Judge (“IJ”) denying asylum, withholding of removal, and

13 protection under the Convention Against Torture (“CAT”). In

14 re Kabita Bhattrai, No. A 205 647 151 (B.I.A. Dec. 13, 2018),

15 aff’g No. A 205 647 151 (Immig. Ct. N.Y. City Nov. 9, 2017).

16 We assume the parties’ familiarity with the underlying facts

17 and procedural history.

18 We have considered both the IJ’s and the BIA’s opinions

19 “for the sake of completeness.” Wangchuck v. Dep’t of

20 Homeland Sec.,

(2d Cir. 2006). The

21 applicable standards of review are well established. See

22

(b)(4)(B); Paloka v. Holder,

, 195

23 (2d Cir. 2014) (reviewing factual findings under the

2 1 substantial evidence standard and questions of law de novo).

2 An asylum applicant must show that she has suffered past

3 persecution, or has a well-founded fear of future

4 persecution, on account of race, religion, nationality,

5 membership in a particular social group, or political

6 opinion. See

(b)(1)(B)(i); 8 C.F.R.

7 § 1208.13(b). Past persecution creates a rebuttable

8 presumption of a “well-founded fear of [future] persecution

9 on the basis of the original claim.”

1208.13(b)(1). The Government may rebut that presumption

11 where a preponderance of the evidence shows that the applicant

12 could avoid future persecution “by relocating to another part

13 of the applicant’s country of nationality . . . , and under

14 all the circumstances, it would be reasonable to expect the

15 applicant to do so.”

(b)(1)(i)(B); see

16 also Matter of D-I-M-,

, 450–51 (B.I.A.

17 2008) (discussing the burden shifting framework).

18 The record supports the agency’s conclusion that Bhattrai

19 could relocate within Nepal to avoid future persecution on

20 account of her caste and that it would be reasonable for her

21 to do so. See

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

3 1

(2d Cir. 2006) (“Asylum in the United States

2 is not available to obviate re-location to sanctuary in one’s

3 own country.”). Factors relevant in determining the

4 reasonableness of relocation include “whether the applicant

5 would face other serious harm in the place of suggested

6 relocation; any ongoing civil strife within the country;

7 administrative, economic, or judicial infrastructure;

8 geographical limitations; and social and cultural

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

10 familial ties.”

(b)(3) (2018) 1; Singh v.

11 Garland,

, 117–118 (2d Cir. 2021).

12 The agency considered the relevant factors, and the

13 following facts support the agency’s decision. Bhattrai’s

14 parents moved from her home village to Kathmandu in January

15 2016, they live there with her children, and they have not

16 been harassed or threatened in the time that they have lived

17 in Kathmandu. Her family appeared to have sufficient

18 financial resources to live in Kathmandu because her father

19 was able to pay for her trip to the United States. Although

1 This version of the regulation was in effect until November 2018, including at the time of the IJ’s decision in this case.

4 1 neighbors from Bhattrai’s village called and told her father

2 that people from other castes were still looking for her and

3 she should not come back, there were no threats of harm to

4 her or her family if they remained in Kathmandu. The Chhetri

5 caste, of which Bhattrai was a member, is the dominant group

6 in Kathmandu, and is the second highest caste in Nepal. The

7 2015 U.S. State Department Human Rights Report for Nepal

8 reflects political violence in Nepal, but it does not indicate

9 that such violence is directed against the Chhetri caste.

10 Moreover, Bhattrai herself lived unharmed in Kathmandu for

11 three months before coming to the United States.

12 The record does not support Bhattrai’s challenges to the

13 IJ’s determination. She contends that the IJ discounted her

14 testimony that her family was in hiding and that she would be

15 unable to get a job to support her family in Kathmandu.

16 However, the record supports the IJ’s determination because

17 Bhattrai’s testimony was ambiguous about living in hiding

18 given her testimony that her two younger children attended

19 school and her oldest child was in college and worked in a

20 restaurant. Bhattrai also argues that the IJ

21 mischaracterized her family’s financial resources, but, to

5 1 the contrary, she testified that her father paid for

2 everything for her even though he was not wealthy and she did

3 not provide a clear statement of how her father financed her

4 trip to the United States. And although Bhattrai claimed

5 that her family would have no financial resources in

6 Kathmandu, she had worked in a factory in her home village

7 and her son works in a restaurant in Kathmandu.

8 Finally, Bhattrai argues that the agency erred by failing

9 to conduct a separate analysis of her CAT claim. However,

10 the agency’s determination that the Government had rebutted

11 the presumption of a well-founded fear of future harm as

12 required to state an asylum claim “necessarily” resolved

13 Bhattrai’s claims for both withholding of removal and CAT

14 relief, which require a greater likelihood of persecution or

15 torture. Lecaj v. Holder,

, 119–20 (2d Cir.

16 2010); see also

(c)(3)(ii) (providing that

17 ability to relocate is a factor to be considered in

18 determining the risk of torture).

19 In sum, the agency’s conclusion that Bhattrai could

20 reasonably relocate within Nepal is supported by substantial

21 evidence because her risk of harm is limited to her home

6 1 village and her parents and children have been able to live

2 safely in Kathmandu. See

(b)(1)(i)(B),

3 1208.16(c)(3)(ii).

4 For the foregoing reasons, the petition for review is

5 DENIED. All pending motions and applications are DENIED and

6 stays VACATED.

7 FOR THE COURT: 8 Catherine O’Hagan Wolfe, 9 Clerk of Court

7