20-3666 Sambahamphe v. Garland BIA Leeds, IJ A206 475 801 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 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 7th day of September, two thousand twenty- 5 two. 6 7 PRESENT: 8 JOSÉ A. CABRANES, 9 DENNY CHIN, 10 JOSEPH F. BIANCO, 11 Circuit Judges. 12 _____________________________________ 13 14 LALIT SAMBAHAMPHE, 15 Petitioner, 16 17 v. 20-3666 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Stuart Altman, Esq., New York, NY. 25 26 FOR RESPONDENT: Brian Boynton, Acting Assistant 27 Attorney General; Zoe J. Heller, 28 Senior Litigation Counsel; Karen 1 L. Melnik, Trial Attorney, Office 2 of 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 Lalit Sambahamphe, a native and citizen of

10 Nepal, seeks review of an October 2, 2020, decision of the

11 BIA affirming a May 16, 2018, decision of an Immigration Judge

12 (“IJ”) denying his application for asylum, withholding of

13 removal, and relief under the Convention Against Torture

14 (“CAT”). In re Lalit Sambahamphe, No. A 206 475 801 (B.I.A.

15 Oct. 2, 2020), aff’g No. A 206 475 801 (Immig. Ct. N.Y. City

16 May 16, 2018). We assume the parties’ familiarity with the

17 underlying facts 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). We review

21 factual findings for substantial evidence and questions of

22 law de novo. See Yanqin Weng v. Holder,

, 513

23 (2d Cir. 2009). “[T]he administrative findings of fact are

2 1 conclusive unless any reasonable adjudicator would be

2 compelled to conclude to the contrary.” 8 U.S.C.

3 § 1252(b)(4)(B).

4 Sambahamphe, who supports the Nepali Congress Party,

5 asserted a fear of persecution because Maoists threatened him

6 after he refused to join them in 2000 or 2001. Because

7 Sambahamphe did not allege past persecution, he had the burden

8 to show a well-founded fear of future persecution. 8 C.F.R.

9 § 1208.13(a), (b)(1), (b)(2)(iii). An asylum applicant “does

10 not have a well-founded fear of persecution if [he] could

11 avoid persecution by relocating to another part of [his]

12 country of nationality . . . if under all the circumstances

13 it would be reasonable to expect [him] to do so.” Id.

14 § 1208.13(b)(2)(ii). 1 In determining whether relocation is

15 reasonable, the IJ “should consider, but [is] not limited to

16 considering, whether the applicant would face other serious

17 harm in the place of suggested relocation; any ongoing civil

18 strife within the country; administrative, economic, or

19 judicial infrastructure; geographical limitations; and social

1 Citations are to the version of the regulations in effect at the time of the agency’s decisions. 3 1 and cultural constraints, such as age, gender, health, and

2 social and familial ties.” Id. § 1208.13(b)(3).

3 The agency reasonably concluded that Sambahamphe did not

4 have a well-founded fear of future persecution because he had

5 lived unharmed in Kathmandu for years after he was threatened

6 by Maoists in his home village. He left his village for

7 Kathmandu in 2001 after Maoists twice came to his home in and

8 threatened to kill him. He received no threats in Kathmandu

9 and had no interactions with Maoists while he lived there

10 from 2001 to 2008 and again from 2011 until he left for the

11 United States. 2 Although his parents told him that Maoists

12 continued to look for him in their village and his wife was

13 attacked in that village in 2017, the Maoists did not threaten

14 him in Kathmandu and his wife had no further issues after she

15 relocated to Kathmandu. Moreover, the 2017 State Department

16 Country Report on Human Rights Practices for Nepal reflects

17 that the Maoists are part of the government and that there

18 have been prosecutions and return of property following the

2Sambahamphe argues that the IJ erred in finding he did not receive threats, but it is clear from the context of the IJ’s discussion that the IJ recognized the threats in 2000 or 2001 and otherwise was referring to the period that Sambahamphe lived in Kathmandu. 4 1 2006 peace accord. Although the report also reflects that a

2 breakaway Maoist faction engaged in some violence and

3 intimidation during a 2013 election, such isolated incidents

4 by non-governmental actors does not outweigh the evidence

5 that Sambahamphe can—and did—safely relocate. See Singh v.

6 Garland,

, 115–17 (2d Cir. 2021) (holding that

7 allegation of persecution by members of a political party,

8 even one in power, is not an allegation of persecution by the

9 government, that applicant must show that someone in his

10 “particular circumstances would be unable to relocate to

11 avoid persecution” (quotation marks omitted))).

12 Sambahamphe’s ability to relocate is dispositive of asylum,

13 withholding of removal, and CAT protection. Lecaj v. Holder,

14

, 119–20 (2d Cir. 2010) (holding that applicant

15 who fails to demonstrate the chance of persecution required

16 for asylum “necessarily fails to demonstrate the clear

17 probability of future persecution required for withholding of

18 removal, and the more likely than not to be tortured standard

19 required for CAT relief” (quotation marks and citations

20 omitted)).

21

5 1 For the foregoing reasons, the petition for review is

2 DENIED. All pending motions and applications are DENIED and

3 stays VACATED.

4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, 6 Clerk of Court

6