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Dhanday v. Holder BIA Romig, IJ A096 044 295 

### UNITE D STATES COURT OF AP PEALS FOR T HE SE COND CIRCU IT 

# SUM MARY ORDER

RULI N G S 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 1 0 (“CAT”). In re Ramesh Kumar Dhanday , No. A096 044 295 1 1 (B.I.A. June 23, 2009), aff’gNo. A096 044 295 (Immig. Ct. 1 2 N.Y. City Oct. 1, 2007). We assume the parties’ familiarity 1 3 with the underlying facts and procedural history of the 1 4 case. 1 5 Under the circumstances of this case, we review the 1 6 IJ’s decision as the final agency determination. See 1 7 8 C.F.R. § 1003.1(e)(4); Shunfu Li v. Mukasey , 529 F.3d 141, 1 8 146 (2d Cir. 2008). The applicable standards of review are 1 9 well established. See Corovic v. Mukasey , 519 F.3d 90, 95 2 0 (2d Cir. 2008); Salimatou Bah v. Mukasey , 529 F.3d 99, 110 2 1 (2d Cir. 2008). 2 2 An asylum applicant’s nationality, or lack of3 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 1 0 afforded to the applicant’s evidence in immigration 1 1 proceedings lies largely within the discretion of the IJ). 1 2 Moreover, the IJ told Dhanday that he should provide more 1 3 official documents to establish his nationality and gave him 1 4 ample time to provide such evidence. See Diallo v. INS , 232 1 5 F.3d 279, 285 (2d Cir. 2000) (holding that corroborating 1 6 evidence, or an explanation for its absence, may be required 1 7 where it would reasonably be expected). Despite being given 1 8 this opportunity, Dhanday failed to provide additional 1 9 evidence by the deadline the IJ had set. Thus, the IJ’s 2 0 determination that Dhanday failed to establish his 2 1 eligibility for asylum, withholding of removal, and CAT 2 2 relief is supported by substantial evidence. See8 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 Circuit Local Rule 34.1(b). 10 1 1 FOR THE COURT: 1 2 Catherine O’Hagan Wolfe, Clerk 13