Thapachhetri v. Sessions
690 F. App'x 726
2d Cir.2017Background
- Petitioner Rudra Narshing Thapachhetri, a Nepali citizen and former Nepali Congress Party (NCP) member, sought asylum, withholding of removal, and CAT relief based on past persecution by Maoists and fear of future harm.
- The IJ denied relief; the BIA affirmed on December 31, 2015. Petition for review to Second Circuit followed.
- Petitioner had established past persecution and thus invoked the presumption of a well-founded fear of future persecution.
- The Government argued it rebutted that presumption by showing a fundamental change in country conditions after the NCP won a credible parliamentary election in November 2013.
- Petitioner relied on ongoing Maoist violence, a threatening phone call to his wife, and past injuries to argue continued individualized risk and eligibility for humanitarian asylum and CAT relief.
- The agency found (1) country conditions changed materially in favor of the NCP, (2) petitioner failed to show individualized risk or a pattern-or-practice of persecution post-election, (3) past harm did not produce long-lasting effects warranting humanitarian asylum, and (4) petitioner failed to meet CAT/withholding standards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether government rebutted presumption of future persecution after petitioner proved past persecution | Thapachhetri: Maoists still pose a risk; pattern/practice of persecution persists | Government: November 2013 election shifted power; evidence shows reduced Maoist capacity and some NCP actions against Maoists | Court: Government met burden; agency finding of fundamental change in country conditions supported by substantial evidence |
| Whether petitioner demonstrated individualized risk or pattern-or-practice of persecution after rebuttal | Thapachhetri: network of Maoists, threatening call to wife shows continued targeting | Government: lack of evidence that petitioner or similarly situated NCP members are being persecuted; family in Nepal unharmed | Court: Petitioner failed to show he would be singled out or belong to a persecuted group; fear speculative |
| Whether humanitarian asylum is warranted based on severity and long-term effects of past harm | Thapachhetri: past brutality left him mentally scarred, meriting humanitarian asylum | Government: medical records show only brief treatment and no long-lasting effects | Court: Agency reasonably found harms insufficiently severe/long-lasting for humanitarian asylum |
| Whether petitioner qualifies for CAT or withholding of removal | Thapachhetri: Maoist violence and police corruption render return likely to result in torture | Government: same evidence fails to show risk meeting higher CAT/withholding standards | Court: Failure to meet asylum burden dispositive; petitioner did not satisfy CAT/withholding requirements |
Key Cases Cited
- Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524 (2d Cir. 2006) (reviewing BIA and IJ decisions for completeness)
- Lecaj v. Holder, 616 F.3d 111 (2d Cir. 2010) (individualized analysis for changed country conditions and standards for rebutting presumption)
- Jalloh v. Gonzales, 498 F.3d 148 (2d Cir. 2007) (standards for humanitarian asylum: severe and long-lasting effects)
- Burger v. Gonzales, 498 F.3d 131 (2d Cir. 2007) (lingering regime elements may still pose threat but require evidence)
- Jian Xing Huang v. INS, 421 F.3d 125 (2d Cir. 2005) (speculation insufficient to establish well-founded fear)
- Melgar de Torres v. Reno, 191 F.3d 307 (2d Cir. 1999) (diminished fear where similarly situated persons live unharmed)