09-3141-ag 

Dhanday v. Holder

BIA

Romig, IJ

A096 044 295

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 Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

4 New York, on the 23 day of March, two thousand ten. rd

5

6 PRESENT:

7 JOSEPH M. McLAUGHLIN,

8 ROBERT A. KATZMANN,

9 RICHARD C. WESLEY,

10 Circuit Judges.

11 _________________________________________

12

13 RAMESH KUMAR DHANDAY,

14 Petitioner, 

15

16 v. 09-3141-ag

17 NAC

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL, DEPARTMENT OF HOMELAND

20 SECURITY,

21 Respondents.

22 _________________________________________

23 

24 FOR PETITIONER: Amy N. Gell, New York, New York.

25 FOR RESPONDENTS: Tony West, Acting Assistant Attorney

26 General; Ernesto H. Molina, Jr.,

27 Assistant Director; Jamie M. Dowd,

28 Senior Litigation Counsel, Office of

29 Immigration Litigation, United

30 States Department of Justice,

31 Washington, D.C.
2

1 UPON DUE CONSIDERATION of this petition for review of a

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

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

4 is DENIED.

5 Petitioner, Ramesh Kumar Dhanday, seeks review of the

6 June 23, 2009, order of the BIA, affirming the October 1,

7 2007, decision of Immigration Judge (“IJ”) Jeffrey L. Romig,

8 which denied his application for asylum, withholding of

9 removal, and relief under the Convention Against Torture

10 (“CAT”). In re Ramesh Kumar Dhanday, No. A096 044 295

11 (B.I.A. June 23, 2009), aff’g No. A096 044 295 (Immig. Ct.

12 N.Y. City Oct. 1, 2007). We assume the parties’ familiarity

13 with the underlying facts and procedural history of the

14 case.

15 Under the circumstances of this case, we review the

16 IJ’s decision as the final agency determination. See 

17 8 C.F.R. § 1003.1(e)(4); Shunfu Li v. Mukasey, 529 F.3d 141,

18 146 (2d Cir. 2008). The applicable standards of review are

19 well established. See Corovic v. Mukasey, 519 F.3d 90, 95

20 (2d Cir. 2008); Salimatou Bah v. Mukasey, 529 F.3d 99, 110

21 (2d Cir. 2008). 

22 An asylum applicant’s nationality, or lack of
3

1 nationality, is a threshold question in determining his or

2 her eligibility for asylum. See Jigme Wangchuck v. DHS, 448

3 F.3d 524, 528 (2d Cir. 2006). The alien has the burden to

4 establish his eligibility for asylum. 8 U.S.C. §

5 1158(b)(1)(B). Here, the IJ identified nationality as an

6 important issue in the case, but found that the two letters

7 Dhanday submitted were insufficient to prove his Indian

8 nationality. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471

9 F.3d 315, 342 (2d Cir. 2006) (holding that the weight

10 afforded to the applicant’s evidence in immigration

11 proceedings lies largely within the discretion of the IJ). 

12 Moreover, the IJ told Dhanday that he should provide more

13 official documents to establish his nationality and gave him

14 ample time to provide such evidence. See Diallo v. INS, 232

15 F.3d 279, 285 (2d Cir. 2000) (holding that corroborating

16 evidence, or an explanation for its absence, may be required

17 where it would reasonably be expected). Despite being given

18 this opportunity, Dhanday failed to provide additional

19 evidence by the deadline the IJ had set. Thus, the IJ’s

20 determination that Dhanday failed to establish his

21 eligibility for asylum, withholding of removal, and CAT

22 relief is supported by substantial evidence. See 8 U.S.C. §
4

1 1158(b)(1)(B); Paul v. Gonzales, 444 F.3d 148, 156-57 (2d

2 Cir. 2006). 

3 For the foregoing reasons, the petition for review is

4 DENIED. As we have completed our review, any stay of

5 removal that the Court previously granted in this petition

6 is VACATED, and any pending motion for a stay of removal in

7 this petition is DISMISSED as moot. Any pending request for

8 oral argument in this petition is DENIED in accordance with

9 Federal Rule of Appellate Procedure 34(a)(2), and Second

10 Circuit Local Rule 34.1(b).

11 FOR THE COURT: 

12 Catherine O’Hagan Wolfe, Clerk

13