Opinion
No. 08-1836-ag NAC.
February 19, 2009.
UPON DUE CONSIDERATION of this petition for review of a decision of the Board of Immigration Appeals ("BIA"), it is hereby ORDERED, ADJUDGED, AND DECREED, that the petition for review is DENIED.
FOR PETITIONERS: Ramesh K. Shrestha, New York, New York. FOR RESPONDENT: Gregory G. Katsas, Assistant Attorney General, Ernesto H. Molina, Jr., Assistant Director, Yanal Yousef, Law Clerk, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.
PRESENT: HON. WILFRED FEINBERG, HON. JOSÉ A. CABRANES, HON. ROBERT D. SACK, Circuit Judges.
Petitioners Dadoma and Tenzing Sherpa, natives and citizens of Nepal, seek review of a March 26, 2008 order of the BIA affirming the September 6, 2006 decision of Immigration Judge ("IJ") Javier Balasquide, denying their applications for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). In re Dadoma Sherpa, Tenzing Sherpa, Nos. A98 905 790, A98 905 791 23 (B.I.A. Mar. 26, 2008), aff'g Nos. A98 905 790, A98 905 791 24 (Immig. Ct. N.Y. City Sept. 6, 2006). We assume the 25 parties' familiarity with the underlying facts and 26 procedural history of the case.
When the BIA adopts the decision of the IJ and supplements the IJ's decision, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). However, when the BIA affirms the IJ's decision in some respects but not others, we review the IJ's decision as modified by the BIA's decision, i.e., minus the arguments for denying relief that were rejected by the BIA. See Xue Hong Yang v. U.S. Dep't of Justice, 426 F.3d 520, 522 (2d Cir. 2005). Here, the BIA's decision focused on the IJ's alternate finding that the Petitioners failed to meet their burden of proof, making it unclear whether the BIA agreed with the IJ's credibility determination. Thus, we dispose of their petition on burden of proof grounds, assuming their credibility for purposes of our analysis. See Yan Chen, 417 F.3d at 271.
We review the agency's factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008). We review de novo questions of law and the application of 20 law to undisputed fact. See, e.g., Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
In this case, Sherpa pointed to evidence of threats made against her by Nepalese Maoists as evidence of past persecution and as a foundation for her belief that she would be persecuted in the future. Threats can, in some cases, constitute persecution. See, e.g., Granados Rios v. Mukasey, 268 Fed. Appx. 51, 53-54 (2d Cir. 2008). But in this case the BIA concluded that the threats made to Sherpa did not qualify, reasoning that (1) the Maoists never physically harmed Sherpa, even though they had ample opportunity to do so, (2) Sherpa voluntarily traveled back to Nepal after the threats were made, and (3) Sherpa's father continued to live in Nepal after he was threatened, and he was not harmed. The BIA also concluded that these facts undermined Sherpa's claim that she reasonably feared that she would be persecuted in the future. Substantial evidence supports these conclusions.
Because the Petitioners were unable to show the objective likelihood of persecution needed to make out an asylum claim, they were necessarily unable to meet the higher standard required to succeed on their claims for withholding of removal and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
For the foregoing reasons, the petition for review is DENIED. The pending motion for stay of voluntary departure, which the government did not oppose, is GRANTED retroactive to April 17, 2008, the date that Sherpa motioned for a stay of removal. See Thapa v. Gonzales, 460 F.3d 323, 324-25 (2d Cir. 2006); see also Vafeav v. Mukasey, No. 08-0376, 2008 U.S. App. LEXIS 23358, at *7-8 (2d Cir. Oct. 28, 2008). Nonetheless, as we have completed our review, the stay is lifted and the voluntary departure period continues to run as of the date this order is filed. The 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 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).