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. At a stated term of the United States Court of Appeals for**  1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **7 th**  **day of October, two thousand sixteen.** 4 5 **PRESENT:** 6 **JON O. NEWMAN,** 7 **DENNIS JACOBS,** 8 **PETER W. HALL,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **TSHERING DOLMA,** 13 Petitioner **,** 14 15 **v. 11-4718** 16 **NAC** 17 **LORETTA E. LYNCH, UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Gary J. Yerman, New York, N.Y. 23 24 **FOR RESPONDENT:** Stuart F. Delery, Acting Assistant 25 Attorney General; Alison Marie Igoe, 26 Jeffrey L. Menkin, Senior Counsel 27 for National Security, Office of 28 Immigration Litigation, United 29 States Department of Justice, 30 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 is 3
DISMISSED IN PART AND DENIED IN PART. 4 Petitioner Tshering Dolma, a native and citizen of China, 5 seeks review of an October 11, 2011, decision of the BIA 6 affirming an August 19, 2010, decision of an Immigration Judge 7 (“IJ”) denying Dolma’s application for asylum, withholding of 8 removal, and relief under the Convention Against Torture 9 (“CAT”). In re Tshering Dolma, No. A089 922 586 (B.I.A. Oct. 10 11, 2011), aff’g No. A089 922 586 (Immig. Ct. N.Y. City Aug. 11 19, 2010). We assume the parties’ familiarity with the 12 underlying facts and procedural history in this case. 13 We have reviewed the decisions of both the IJ and BIA “for 14 the sake of completeness.” Wangchuck v. Dep’t of Homeland 15
Sec. , 448 F.3d 524, 528 (2d Cir. 2006)

. The applicable 16 standards of review are well established. 8 U.S.C. 17 § 1252(b)(4)(B); Yanqin Weng v. Holder , 562 F.3d 510, 513 (2d 18 Cir. 2009). 19 I. Asylum and Withholding of Removal 20 We “may review a final order of removal only if . . . the 21 alien has exhausted all administrative remedies available to 22 the alien as of right.” 8 U.S.C. § 1252(d)(1). This 233 jurisdictional rule is absolute with respect to the requirement 1 that the alien raise on appeal to the BIA each category of relief 2 subsequently raised in this Court. Karaj v. Gonzales , 462 F.3d 3 113, 119 (2d Cir. 2006). 4 We lack jurisdiction to consider Dolma’s unexhausted 5 challenges to the agency’s denial of asylum and withholding of 6 removal, which was based on a determination that she provided 7 material support to a terrorist organization and was therefore 8 ineligible for these forms of relief. 8 U.S.C. § 1252(d)(1); 9 Karaj , 462 F.3d at 119. Dolma did not press her claims for 10 asylum and withholding of removal on appeal to the BIA, which 11 should come as no surprise because she conceded before the IJ 12 that she was ineligible for these forms of relief for having 13 provided material support. Her one sentence reference to 14 asylum and withholding of removal was not enough. See Karaj , 15 462 F.3d at 119. We therefore lack jurisdiction over Dolma’s 16 unexhausted challenges to the denial of asylum and withholding 17 of removal. 18 II. Deferral of Removal under the CAT 19 Deferral of removal remains available for aliens deemed to 20 have provided material support. Matter of M-H-Z- , 26 I. & N. 21 Dec. 757, 764 n.7 (B.I.A. 2016) (“The material support bar does 22 not preclude deferral of removal under the Convention Against 234 Torture pursuant to 8 C.F.R. § 1208.17.”). To demonstrate 1 eligibility for CAT deferral, an applicant must show that it 2 is more likely than not that she will be tortured in her country 3 of removal; the torture must be “inflicted by or at the 4 instigation of or with the consent or acquiescence of a public 5 official or other person acting in an official capacity.” 8 6 C.F.R. § 1208.18(a)(1), (7). 7 Dolma devotes very little space to her CAT claim and 8 mentions only her fear of torture by Maoists in Nepal, not any 9 harm as a Tibetan in China. The agency reasonably concluded 10 that Dolma did not meet her burden for CAT deferral. See In 11

re M-B-A- , 23 I. & N. Dec. 474, 479-80 (B.I.A. 2002) (A claim 12 “based on a chain of assumptions and a fear of what might happen” 13 is insufficient to demonstrate elig ibility for CAT relief); 14 Y.C. v. Holder , 741 F.3d 324, 332 (2d Cir. 2013) (“We generally 15 defer to the agency’s evaluation of the weight to be afforded 16 an applicant’s documentary evidence.”). The description of 17 conditions in Nepal does not reflect the torture of Tibetans 18 or that Dolma would be targeted for torture by Maoists. S ee 19 Jian Hui Shao v. Mukasey , 546 F.3d 138, 161 (2d Cir. 2008) (“We 20 do not ourselves attempt to resolve conflicts in record 21 evidence, a task largely within the discretion of the agency.”); 22 See Hongsheng Leng v. Mukasey , 528 F.3d 135, 143 (2d Cir. 2008) 235 (observing that to establish a fear of harm, in the absence of 1 any evidence of past harm, “an alien must make some showing that 2 authorities in his country of nationality are either aware of 3 his activities or likely to become aware of his activities”); 4 Matter of M-B-A- , 23 I. & N. Dec. at 479-80. 5 For the foregoing reasons, the petition for review is 6 DISMISSED IN PART AND DENIED IN PART. As we have completed our 7 review, any stay of removal that the Court previously granted 8 in this petition is VACATED, and any pending motion for a stay 9 of removal in this petition is DISMISSED as moot. Any pending 10 request for oral argument in this petition is DENIED in 11 accordance with Federal Rule of Appellate Procedure 34(a)(2), 12 and Second Circuit Local Rule 34.1(b). 13
FOR THE COURT: 14 Catherine O’Hagan Wolfe, Clerk 15