11-4718 

Dolma v. Lynch 

BIA 

Balasquide, IJ 

A089 922 586

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 TO 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 for 

2 the Second Circuit, held at the Thurgood Marshall United States 

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

7th 4 day of October, two thousand sixteen. 

5 

6 PRESENT: 

7 JON O. NEWMAN,

8 DENNIS JACOBS, 

9 PETER W. HALL,

10 Circuit Judges. 

11 _____________________________________ 

12 

13 TSHERING DOLMA, 

14 Petitioner, 

15 

16 v. 11-4718 

17 NAC 

18 LORETTA E. LYNCH, UNITED STATES 

19 ATTORNEY GENERAL, 

20 Respondent. 

21 _____________________________________ 

22 

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

24 

25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant 

26 Attorney General; Alison Marie Igoe, 

27 Jeffrey L. Menkin, Senior Counsel 

28 for National Security, 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 is 

4 DISMISSED IN PART AND DENIED IN PART. 

5 Petitioner Tshering Dolma, a native and citizen of China, 

6 seeks review of an October 11, 2011, decision of the BIA 

7 affirming an August 19, 2010, decision of an Immigration Judge 

8 (“IJ”) denying Dolma’s application for asylum, withholding of 

9 removal, and relief under the Convention Against Torture 

10 (“CAT”). In re Tshering Dolma, No. A089 922 586 (B.I.A. Oct. 

11 11, 2011), aff’g No. A089 922 586 (Immig. Ct. N.Y. City Aug. 

12 19, 2010). We assume the parties’ familiarity with the 

13 underlying facts and procedural history in this case. 

14 We have reviewed the decisions of both the IJ and BIA “for 

15 the sake of completeness.” Wangchuck v. Dep’t of Homeland 

16 Sec., 448 F.3d 524, 528 (2d Cir. 2006). The applicable 

17 standards of review are well established. 8 U.S.C. 

18 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d 

19 Cir. 2009). 

20 I. Asylum and Withholding of Removal 

21 We “may review a final order of removal only if . . . the 

22 alien has exhausted all administrative remedies available to 

23 the alien as of right.” 8 U.S.C. § 1252(d)(1). This 
3

1 jurisdictional rule is absolute with respect to the requirement 

2 that the alien raise on appeal to the BIA each category of relief 

3 subsequently raised in this Court. Karaj v. Gonzales, 462 F.3d 

4 113, 119 (2d Cir. 2006). 

5 We lack jurisdiction to consider Dolma’s unexhausted 

6 challenges to the agency’s denial of asylum and withholding of 

7 removal, which was based on a determination that she provided 

8 material support to a terrorist organization and was therefore 

9 ineligible for these forms of relief. 8 U.S.C. § 1252(d)(1); 

10 Karaj, 462 F.3d at 119. Dolma did not press her claims for 

11 asylum and withholding of removal on appeal to the BIA, which 

12 should come as no surprise because she conceded before the IJ 

13 that she was ineligible for these forms of relief for having 

14 provided material support. Her one sentence reference to 

15 asylum and withholding of removal was not enough. See Karaj, 

16 462 F.3d at 119. We therefore lack jurisdiction over Dolma’s 

17 unexhausted challenges to the denial of asylum and withholding 

18 of removal.

19 II. Deferral of Removal under the CAT 

20 Deferral of removal remains available for aliens deemed to 

21 have provided material support. Matter of M-H-Z-, 26 I. & N. 

22 Dec. 757, 764 n.7 (B.I.A. 2016) (“The material support bar does 

23 not preclude deferral of removal under the Convention Against 
4

1 Torture pursuant to 8 C.F.R. § 1208.17.”). To demonstrate 

2 eligibility for CAT deferral, an applicant must show that it 

3 is more likely than not that she will be tortured in her country 

4 of removal; the torture must be “inflicted by or at the 

5 instigation of or with the consent or acquiescence of a public 

6 official or other person acting in an official capacity.” 8 

7 C.F.R. § 1208.18(a)(1), (7). 

8 Dolma devotes very little space to her CAT claim and 

9 mentions only her fear of torture by Maoists in Nepal, not any 

10 harm as a Tibetan in China. The agency reasonably concluded 

11 that Dolma did not meet her burden for CAT deferral. See In 

12 re M-B-A-, 23 I. & N. Dec. 474, 479-80 (B.I.A. 2002) (A claim 

13 “based on a chain of assumptions and a fear of what might happen” 

14 is insufficient to demonstrate eligibility for CAT relief); 

15 Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013) (“We generally 

16 defer to the agency’s evaluation of the weight to be afforded 

17 an applicant’s documentary evidence.”). The description of 

18 conditions in Nepal does not reflect the torture of Tibetans 

19 or that Dolma would be targeted for torture by Maoists. See 

20 Jian Hui Shao v. Mukasey, 546 F.3d 138, 161 (2d Cir. 2008) (“We 

21 do not ourselves attempt to resolve conflicts in record 

22 evidence, a task largely within the discretion of the agency.”); 

23 See Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008) 
5

1 (observing that to establish a fear of harm, in the absence of 

2 any evidence of past harm, “an alien must make some showing that 

3 authorities in his country of nationality are either aware of 

4 his activities or likely to become aware of his activities”); 

5 Matter of M-B-A-, 23 I. & N. Dec. at 479-80. 

6 For the foregoing reasons, the petition for review is 

7 DISMISSED IN PART AND DENIED IN PART. As we have completed our 

8 review, any stay of removal that the Court previously granted 

9 in this petition is VACATED, and any pending motion for a stay 

10 of removal in this petition is DISMISSED as moot. Any pending 

11 request for oral argument in this petition is DENIED in 

12 accordance with Federal Rule of Appellate Procedure 34(a)(2), 

13 and Second Circuit Local Rule 34.1(b). 

14 FOR THE COURT: 

15 Catherine O’Hagan Wolfe, Clerk