12-3241

Sangmo v. Holder

 BIA

 Nelson, IJ

A089 252 016

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 Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 14th 4 day of May, two thousand fourteen.

5

6 PRESENT:

7 DENNIS JACOBS,

8 PETER W. HALL,

9 DENNY CHIN,

10 Circuit Judges. 

11 _____________________________________

12

13 CHONYI SANGMO,

14 Petitioner, 

15 12-3241

16 v. NAC 

17

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Jason A. Nielson, Of Counsel,

24 Mungoven & Associates, New York, NY.

25

26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant

27 Attorney General; Francis W. Fraser,

28 Senior Litigation Counsel; Linda Y.

29 Cheng, Trial Attorney, Office of
1 Immigration Litigation, Civil

2 Division, United States Department

3 of Justice, Washington, D.C.

4

5 UPON DUE CONSIDERATION of this petition for review of a

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

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

8 is DENIED.

9 Petitioner Chonyi Sangmo seeks review of a July 24,

10 2012, decision of the BIA affirming the December 3, 2010,

11 decision of Immigration Judge (“IJ”) Barbara A. Nelson

12 denying her application for asylum, withholding of removal,

13 and relief under the Convention Against Torture (“CAT”). In

14 re Chonyi Sangmo, No. A089 252 016 (B.I.A. July 24, 2012),

15 aff’g No. A089 252 016 (Immig. Ct. N.Y. City Dec. 3, 2010). 

16 We assume the parties’ familiarity with the underlying facts

17 and procedural history of the case.

18 Under the circumstances of this case, we have

19 considered both the IJ’s and the BIA’s opinions “for the

20 sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237

21 (2d Cir. 2008). The applicable standards of review are well22 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

23 Holder, 562 F.3d 510, 513 (2d Cir. 2009).

24

2
1 I. Asylum

2 To meet the definition of “refugee” and thus establish

3 eligibility for asylum, an applicant must first establish

4 her nationality, or lack of nationality. See 8 U.S.C.

5 § 1158(b)(1)(A), (B); 8 C.F.R. § 1208.13(a) (placing the

6 burden of proving refugee status on the applicant);

7 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d

8 Cir. 2006). Here, the agency’s finding that Sangmo failed

9 to establish her identity is supported by substantial

10 evidence.

11 Sangmo argues that the IJ arbitrarily afforded minimal

12 weight to the evidence she proffered to establish her

13 Tibetan ethnicity and Chinese citizenship. Her evidence

14 included: a photocopy of a Chinese household registration

15 booklet, letters from family members, a letter from the

16 Tibetan Refugee Transit Center in Nepal, a letter from the

17 Regional Tibetan Youth Congress of New York and New Jersey,

18 a letter from the Office of Tibet in New York, a letter from

19 the Tibetan Youth Club in Nepal, and a witness who was a

20 Tibetan national and testified that he met Sangmo on three

21 occasions in a two week period at a monastery in Tibet. 

22 However, the majority of the documents provided conclusory

23 affirmations of Sangmo’s Tibetan ethnicity, without mention

3
1 of the basis upon which the authors confirmed her ethnicity. 

2 Moreover, no efforts were made to establish the reliability

3 and authenticity of the documents, and several of the

4 documents were issued by organizations in Nepal or the

5 United States. Accordingly, the IJ reasonably afforded

6 minimal evidentiary weight to the evidence of Sangmo’s

7 Tibetan ethnicity. See Xiao Ji Chen v. U.S. Dep’t of

8 Justice, 471 F.3d 315, 342 (2d Cir. 2006). Sangmo submitted

9 no contemporaneous documents establishing her Tibetan

10 ethnicity or Chinese citizenship, such as a birth

11 certificate or a Chinese national identity card. 

12 Accordingly, the IJ reasonably afforded greater weight to

13 Sangmo’s I-94 Arrival-Departure Card, U.S. visitor visa, and

14 Indian identity certificate, all of which list her

15 citizenship as Indian, because those documents were issued

16 by the U.S. or Indian government after Sangmo established

17 her identity as Indian. See id.

18 Sangmo also argues that the IJ erred by giving less

19 weight to the copy of her Household Registry Booklet, which

20 indicated that she was a resident of China, because she

21 failed to submit the original booklet. The copy, however,

22 was not certified, and Sangmo made no other attempt to

23 establish the reliability or authenticity of the copy. See

4
1 8 C.F.R. § 1287.6; Cao He Lin v. U.S. Dep’t of Justice, 428

2 F.3d 391, 404-05 (2d Cir. 2005). Furthermore, the IJ did

3 not err in declining to credit Sangmo’s explanation that she

4 threw away her Chinese national identity card when she left

5 China to travel to Nepal because she thought she would “face

6 difficulty” if she brought it with her. See Majidi v.

7 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005). Accordingly, the

8 agency’s conclusion that Sangmo failed to establish Tibetan

9 nationality is supported by substantial evidence. 

10 II. Withholding of Removal and CAT Relief

11 Eligibility for withholding of removal and CAT relief

12 does not depend on the alien’s nationality. Rather,

13 withholding of removal is granted with reference to a

14 specific country to which an alien may be removed. 8 U.S.C.

15 § 1231(b)(3)(A); see Matter of I-S- & C-S-, 24 I. & N. Dec.

16 432, 434 (BIA 2008) (“a grant of withholding does not

17 prevent the DHS from removing an alien to a country other

18 than the one to which removal has been withheld”). Here,

19 the IJ found that the documents identifying Sangmo as an

20 Indian citizen were more persuasive than Sangmo’s testimony

21 that she was a citizen of China, and, consequently, ordered

22 her removed to India. Because Sangmo did not allege that

23 she was harmed or would be harmed in India, and has not

5
1 contested the IJ’s designated country of removal,

2 substantial evidence supports the agency’s denial of

3 withholding of removal and CAT relief. 

4 For the foregoing reasons, the petition for review is

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

6 removal that the Court previously granted in this petition

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

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

9 oral argument in this petition is DENIED in accordance with

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

11 Circuit Local Rule 34.1(b).

12 FOR THE COURT: 

13 Catherine O’Hagan Wolfe, Clerk

14

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