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. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 10 th** **day of April, two thousand twelve.** 4 5 **PRESENT:** 6 **JOSÉ A. CABRANES,** 7 **DEBRA ANN LIVINGSTON,** 8 **DENNY CHIN,** 9 Circuit Judges**.** 10

**______________________________________** 11 12 **PHUNTSOK PHUNTSOK,** 13 Petitioner**,** 14 15 **v. 11-1365-ag** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent**.** 20

**______________________________________** 21 22 **FOR PETITIONER: Gary J. Yerman, New York, New York**

. 23 24 **FOR RESPONDENT: Tony West, Assistant Attorney** 25 **General; Anthony C. Payne, Senior** 26 **Litigation Counsel; Tiffany L.** 27 **Walters, Trial Attorney, Office of** 28 **Immigration Litigation, Civil** 29 **Division, United States Department** 30 **of Justice, Washington, D.C.** 312 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review 3 is DENIED. 4 Petitioner, Phuntsok Phuntsok, a native of Nepal, seeks 5 review of a March 21, 2011, decision of the BIA affirming 6 the February 23, 2009, decision of Immigration Judge (“IJ”) 7 Sandy K. Hom denying his application for asylum, withholding 8 of removal, and relief under the Convention Against Torture 9 (“CAT”). In re Phuntsok Phuntsok, No. A089 249 906 (B.I.A. 10 March 21, 2011), aff’gNo. A089 249 906 (Immig. Ct. N.Y. 11 City Feb. 23, 2009). We assume the parties’ familiarity 12 with the underlying facts and procedural history of the 13

case. 14 Under the circumstances of this case, we have reviewed 15 the IJ’s decision as modified by the BIA, i.e.minus his 16 finding that Phuntsok was not credible. See Xue Hong Yang 17 v. U.S. Dep’t of Justice , 426 F.3d 520, 522 (2d Cir. 2005). 18 The applicable standards of review are well-established. 19
See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 20 F.3d 510, 513 (2d Cir. 2009). 21
22 233 **I. Asylum** 1 To meet the definition of “refugee” and thus establish 2 eligibility for asylum, an applicant must first establish 3 his nationality, or lack of nationality. See 8 U.S.C. 4 § 1158(b)(1)(A), (B); 8 C.F.R. § 1208.13(a) (placing the 5 burden of proving refugee status on the applicant); 6 Wangchuck v. Dep’t of Homeland Sec. , 448 F.3d 524, 528 (2d 7 Cir. 2006). Here, the agency’s finding that Phuntsok failed 8 to establish his identity is supported by substantial 9 evidence. 10 Phuntsok argues that the IJ arbitrarily afforded 11 minimal weight to the documents he proffered to establish 12 his Tibetan ethnicity and Chinese citizenship, including 13 various letters from New York offices of Tibetan 14 organizations. However, as the IJ noted, Phuntsok acquired 15 these documents from satellite offices in the United States 16 after he had left Nepal. Moreover, the majority of the 17 documents provided conclusory affirmations of Phuntsok’s 18 Tibetan ethnicity, without mention of the basis upon which 19 the authors confirmed his ethnicity, while the letters from 20 the Office of Tibet and the Nechung Foundation were based on 21 his Green Book, which post-dated his arrival in the United 22 States. The IJ, therefore, reasonably afforded minimal 234 evidentiary weight to the evidence of Phuntsok’s Tibetan 1 ethnicity. See Xiao Ji Chen v. U.S. Dep’t of Justice , 471 2 F.3d 315, 342 (2d Cir. 2006) (holding that the weight 3 afforded to the applicant’s evidence in immigration 4 proceedings lie largely within the discretion of the IJ); 5 Matter of H-L-H- & Z-Y-Z- , 25 I. & N. Dec. 209, 214-15 n.5 6 (B.I.A. 2010) (holding that “the failure to attempt to prove 7 the authenticity of a document . . . is significant,” 8 particularly when the document in question was apparently 9 obtained for removal proceedings rather than a 10 contemporaneously created record of a past event). 11 The IJ also reasonably afforded greater weight to 12 Phuntsok’s I-94 Arrival-Departure Card and U.S. religious 13 worker visa, which list his citizenship as Nepalese, because 14 they were issued by a government agency only after Phuntsok 15 established his identity as Nepalese to that agency. See 16 Xiao Ji Chen, 471 F.3d at 342. Although Phuntsok submitted 17 letters from his wife and friend asserting that the Nepalese 18 passport he obtained the visa with was fraudulent, the IJ 19 reasonably gave little weight to the letters because they 20

were unsworn. See id. 21 Phuntsok also argues that the IJ erred by giving less 22 weight to the copy of his Household Registry Booklet, which 235 indicated that he was a resident of China, because he failed 1 to submit the original Booklet. The copies, however, were 2 not separately certified as required. See 8 C.F.R. § 287.6. 3 Even assuming that the copy did not need to be certified, 4 the IJ reasonably afforded less weight to the copy because 5 Phuntsok testified that he had the original in Nepal, which 6 his wife also asserted in her letter, yet did not explain 7 why he only submitted copies. See id. 8 Furthermore, contrary to Phuntsok’s assertion, the IJ 9 was not required to advise him of the need for additional 10 corroborating evidence prior to rendering his decision. See 11 Chuilu Liu v. Holder, 575 F.3d 193, 198 (2d Cir. 2009) 12 (noting that immigration judge may not have the opportunity 13 to assess totality of evidence after all evidence is 14 submitted and alien may seek a remand to explain absence of 15 corroborating evidence). The IJ also reasonably found that 16 numerous documents were reasonably available to him, 17 including an identity card from China for him or his family, 18 letters from siblings and parents that his wife, who was in 19 contact with his family, could have obtained, and documents 20 evidencing his travel from Tibet to Nepal, all of which 21 Phuntsok did not attempt to attain. Accordingly, the 22 agency’s conclusion that Phuntsok failed to establish his 236 alleged Tibetan nationality is supported by substantial 1 evidence. 2 **II. Withholding of Removal and CAT Relief**  3 Eligibility for withholding of removal and CAT relief 4 does not depend on the alien’s nationality. Rather, 5 withholding of removal is granted with reference to a 6 specific country to which an alien may be removed. See 7 8 U.S.C. § 1231(b)(3)(A) (“[T]he Attorney General may not 8 remove an alien to a country if the Attorney General decides 9 that the alien’s life or freedom would be threatened in that 10 country [on account of a protected ground].”); see also 11 Matter of I-S- & C-S- , 24 I. & N. Dec. 432, 434 (BIA 2008) 12 (“[A] grant of withholding does not prevent the DHS from 13 removing an alien to a country other than the one to which 14 removal has been withheld.”). 15 Here, the IJ ordered Phuntsok removed to Nepal, and 16 because Phuntsok did not allege that he was harmed or would 17 be harmed in Nepal, substantial evidence supports the 18 agency’s denial of withholding of removal. See Yanqin Weng, 19 562 F.3d at 513. Similarly, the agency’s denial of CAT 20 relief was not in error because Phuntsok’s CAT claim was 21 based on the same factual predicate as his claim for 227 withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 1 155-56 (2d Cir. 2006). 2 For the foregoing reasons, the petition for review is 3 DENIED. As we have completed our review, any stay of 4 removal that the Court previously granted in this petition 5 is VACATED, and any pending motion for a stay of removal in 6 this petition is DISMISSED as moot. Any pending request for 7 oral argument in this petition is DENIED in accordance with 8 Federal Rule of Appellate Procedure 34(a)(2), and Second 9 Circuit Local Rule 34.1(b). 10
FOR THE COURT: 11 Catherine O’Hagan Wolfe, Clerk 12 13