Pokharel v. Sessions
691 F. App'x 36
| 2d Cir. | 2017Background
- Petitioner Lal Chandra Pokharel, a Nepalese national, appealed the BIA’s affirmance of an IJ decision denying asylum, withholding of removal, and CAT relief.
- Alleged incidents: beaten by Maoists in 2004 (treated at a medical center), threatened and falsely accused in 2008, and extortion threats in Kathmandu in 2012.
- Petitioner asserted persecution based on membership in the Nepali Congress Party and political opinion; sought relief under asylum, withholding, and CAT.
- Agency found petitioner’s testimony insufficiently detailed and partially inconsistent; petitioner failed to corroborate key injuries and events.
- Record lacked evidence of ongoing, widespread Maoist violence or a pattern/practice targeting Nepali Congress members; petitioner conceded lack of nexus for some threats.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 2004 beating constituted past persecution | Pokharel: beating and injuries by Maoists rose to persecution | Gov: injuries were not shown to be severe enough; testimony lacked detail and corroboration | Denied — agency reasonably found harm did not rise to persecution |
| Whether petitioner has a well-founded fear of future persecution (nexus to political opinion / singled out) | Pokharel: threats, false accusation, and prior attack show future risk due to political opinion | Gov: testimony inconsistent, lacked detail and nexus; petitioner admitted no basis for political-motivation inference for 2012 threat | Denied — fear not sufficiently credible or tied to protected ground |
| Whether Nepal has a pattern or practice of persecuting similarly situated Nepali Congress members | Pokharel: country conditions and expert affidavit show fragile stability and potential targeting | Gov: record lacks evidence Maoist violence remains widespread or that party members are systematically targeted | Denied — no demonstrated systemic or pervasive persecution |
| CAT: likelihood of torture with government acquiescence | Pokharel: risk of torture from Maoists and extortionists on return | Gov: no showing that Maoist violence persists or that Nepali government would acquiesce | Denied — petitioner failed to show likelihood of torture with state acquiescence |
Key Cases Cited
- Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524 (2d Cir. 2006) (review of IJ and BIA decisions for completeness)
- Yanqin Weng v. Holder, 562 F.3d 510 (2d Cir. 2009) (standards of review in immigration appeals)
- Mei Fun Wong v. Holder, 633 F.3d 64 (2d Cir. 2011) (definition and degree of persecution)
- Ai Feng Yuan v. U.S. Dep’t of Justice, 416 F.3d 192 (2d Cir. 2005) (persecution standard guidance)
- Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332 (2d Cir. 2006) (harassment vs. persecution analysis)
- Beskovic v. Gonzales, 467 F.3d 223 (2d Cir. 2006) (contextual assessment of mistreatment severity)
- Jian Qiu Liu v. Holder, 632 F.3d 820 (2d Cir. 2011) (corroboration requirements and evaluation)
- INS v. Elias-Zacarias, 502 U.S. 478 (1992) (nexus requirement for political opinion claims)
- Santoso v. Holder, 580 F.3d 110 (2d Cir. 2009) (pattern-or-practice standard and background evidence)
- Paul v. Gonzales, 444 F.3d 148 (2d Cir. 2006) (asylum and withholding principles)
- Khouzam v. Ashcroft, 361 F.3d 161 (2d Cir. 2004) (CAT standard: torture with government acquiescence)