11-1365-ag

Phuntsok v. Holder

BIA

Hom, IJ

A089 249 906

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

New York, on the 10th 4 day of April, two thousand twelve.

5

6 PRESENT:

7 JOSÉ A. CABRANES,

8 DEBRA ANN LIVINGSTON,

9 DENNY CHIN,

10 Circuit Judges.

11 ______________________________________

12

13 PHUNTSOK PHUNTSOK,

14 Petitioner,

15

16 v. 11-1365-ag

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL,

20 Respondent.

21 ______________________________________

22

23 FOR PETITIONER: Gary J. Yerman, New York, New York.

24

25 FOR RESPONDENT: Tony West, Assistant Attorney

26 General; Anthony C. Payne, Senior

27 Litigation Counsel; Tiffany L.

28 Walters, Trial Attorney, Office of

29 Immigration Litigation, Civil

30 Division, United States Department

31 of Justice, 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, Phuntsok Phuntsok, a native of Nepal, seeks

6 review of a March 21, 2011, decision of the BIA affirming

7 the February 23, 2009, decision of Immigration Judge (“IJ”)

8 Sandy K. Hom denying his application for asylum, withholding

9 of removal, and relief under the Convention Against Torture

10 (“CAT”). In re Phuntsok Phuntsok, No. A089 249 906 (B.I.A.

11 March 21, 2011), aff’g No. A089 249 906 (Immig. Ct. N.Y.

12 City Feb. 23, 2009). 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 have reviewed

16 the IJ’s decision as modified by the BIA, i.e. minus his

17 finding that Phuntsok was not credible. See Xue Hong Yang

18 v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).

19 The applicable standards of review are well-established. 

20 See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562

21 F.3d 510, 513 (2d Cir. 2009). 

22

23
3

1 I. Asylum

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

3 eligibility for asylum, an applicant must first establish

4 his 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 Phuntsok failed

9 to establish his identity is supported by substantial

10 evidence.

11 Phuntsok argues that the IJ arbitrarily afforded

12 minimal weight to the documents he proffered to establish

13 his Tibetan ethnicity and Chinese citizenship, including

14 various letters from New York offices of Tibetan

15 organizations. However, as the IJ noted, Phuntsok acquired

16 these documents from satellite offices in the United States

17 after he had left Nepal. Moreover, the majority of the

18 documents provided conclusory affirmations of Phuntsok’s

19 Tibetan ethnicity, without mention of the basis upon which

20 the authors confirmed his ethnicity, while the letters from

21 the Office of Tibet and the Nechung Foundation were based on

22 his Green Book, which post-dated his arrival in the United

23 States. The IJ, therefore, reasonably afforded minimal
4

1 evidentiary weight to the evidence of Phuntsok’s Tibetan

2 ethnicity. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471

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

4 afforded to the applicant’s evidence in immigration

5 proceedings lie largely within the discretion of the IJ);

6 Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 214-15 n.5

7 (B.I.A. 2010) (holding that “the failure to attempt to prove

8 the authenticity of a document . . . is significant,”

9 particularly when the document in question was apparently

10 obtained for removal proceedings rather than a

11 contemporaneously created record of a past event). 

12 The IJ also reasonably afforded greater weight to

13 Phuntsok’s I-94 Arrival-Departure Card and U.S. religious

14 worker visa, which list his citizenship as Nepalese, because

15 they were issued by a government agency only after Phuntsok

16 established his identity as Nepalese to that agency. See

17 Xiao Ji Chen, 471 F.3d at 342. Although Phuntsok submitted

18 letters from his wife and friend asserting that the Nepalese

19 passport he obtained the visa with was fraudulent, the IJ

20 reasonably gave little weight to the letters because they

21 were unsworn. See id.

22 Phuntsok also argues that the IJ erred by giving less

23 weight to the copy of his Household Registry Booklet, which
5

1 indicated that he was a resident of China, because he failed

2 to submit the original Booklet. The copies, however, were

3 not separately certified as required. See 8 C.F.R. § 287.6. 

4 Even assuming that the copy did not need to be certified,

5 the IJ reasonably afforded less weight to the copy because

6 Phuntsok testified that he had the original in Nepal, which

7 his wife also asserted in her letter, yet did not explain

8 why he only submitted copies. See id.

9 Furthermore, contrary to Phuntsok’s assertion, the IJ

10 was not required to advise him of the need for additional

11 corroborating evidence prior to rendering his decision. See

12 Chuilu Liu v. Holder, 575 F.3d 193, 198 (2d Cir. 2009)

13 (noting that immigration judge may not have the opportunity

14 to assess totality of evidence after all evidence is

15 submitted and alien may seek a remand to explain absence of

16 corroborating evidence). The IJ also reasonably found that

17 numerous documents were reasonably available to him,

18 including an identity card from China for him or his family,

19 letters from siblings and parents that his wife, who was in

20 contact with his family, could have obtained, and documents

21 evidencing his travel from Tibet to Nepal, all of which

22 Phuntsok did not attempt to attain. Accordingly, the

23 agency’s conclusion that Phuntsok failed to establish his
6

1 alleged Tibetan nationality is supported by substantial

2 evidence. 

3 II. Withholding of Removal and CAT Relief

4 Eligibility for withholding of removal and CAT relief

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

6 withholding of removal is granted with reference to a

7 specific country to which an alien may be removed. See

8 8 U.S.C. § 1231(b)(3)(A) (“[T]he Attorney General may not

9 remove an alien to a country if the Attorney General decides

10 that the alien’s life or freedom would be threatened in that

11 country [on account of a protected ground].”); see also

12 Matter of I-S- & C-S-, 24 I. & N. Dec. 432, 434 (BIA 2008)

13 (“[A] grant of withholding does not prevent the DHS from

14 removing an alien to a country other than the one to which

15 removal has been withheld.”). 

16 Here, the IJ ordered Phuntsok removed to Nepal, and

17 because Phuntsok did not allege that he was harmed or would

18 be harmed in Nepal, substantial evidence supports the

19 agency’s denial of withholding of removal. See Yanqin Weng,

20 562 F.3d at 513. Similarly, the agency’s denial of CAT

21 relief was not in error because Phuntsok’s CAT claim was

22 based on the same factual predicate as his claim for
7

1 withholding of removal. See Paul v. Gonzales, 444 F.3d 148,

2 155-56 (2d 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