Dhargyal v. Lynch , 632 F. App'x 39 ( 2016 )

12-3420
Dhargyal v. Lynch
BIA
Wright, IJ
A089 225 151
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,
4 on the 1st day of February, two thousand sixteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 ROSEMARY S. POOLER,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 SONAM DHARGYAL,
14 Petitioner,
15
16 v. 12-3420
17 NAC
18 LORETTA E.LYNCH1, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Sonam Dhargyal, Pro Se, Woodside,
24 NY.
25
26
1
Loretta E. Lynch is automatically substituted as
the respondent in this case pursuant to Federal Rule of
Appellate Procedure 43(c)(2).
1 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
2 Attorney General; Cindy S. Ferrier,
3 Assistant Director; Sunah Lee, Trial
4 Attorney, Office of Immigration
5 Litigation, United States Department
6 of Justice, Washington, D.C.
7
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED that the petition for review
11 is GRANTED.
12 Petitioner Sonam Dhargyal, a native and citizen of an
13 unknown country, seeks review of a July 25, 2012, order of
14 the BIA, affirming the March 1, 2011, decision of an
15 Immigration Judge (“IJ”), which denied his application for
16 asylum, withholding of removal, and relief under the
17 Convention Against Torture (“CAT”). In re Sonam Dhargyal,
18 No. A089 225 151 (B.I.A. July 25, 2012), aff’g No. A089 225
19 151 (Immig. Ct. New York City Mar. 1, 2011). We assume the
20 parties’ familiarity with the underlying facts and
21 procedural history in this case.
22 We review the IJ’s decision as modified by the BIA,
23 i.e., minus the arguments for denying relief that were
24 rejected or not explicitly relied on by the BIA. See Xue
25 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d
26 Cir. 2005). The applicable standards of review are
2
1 well-established. See 8 U.S.C. § 1252(b)(4)(B); see also
2 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
3 By predicating the denial of relief solely upon the
4 insufficiency of Dhargyal’s identity-related documentary
5 evidence, without regard to his testimony or the IJ’s
6 related credibility determination, the BIA erroneously
7 deprived Dhargyal of the “potential benefit” of succeeding
8 on credible testimony alone. See Diallo v. I.N.S., 232 F.3d
9 279, 287 (2d Cir. 2000); 8 U.S.C. § 1158(b)(1)(B)(ii).
10 While an applicant’s “nationality, or lack of nationality,
11 is a threshold question in determining his eligibility for
12 asylum,” Dhoumo v. BIA, 416 F.3d 172, 174 (2d Cir. 2005), an
13 applicant may nevertheless demonstrate asylum eligibility
14 through credible testimony alone. See Diallo, 232 F.3d at
15 287; 8 U.S.C. § 1158(b)(1)(B)(ii). Indeed, the BIA
16 identified no authority in support of its implicit finding
17 that an alien must meet his burden for asylum by
18 demonstrating his nationality and citizenship through
19 documentary evidence. We therefore grant the petition for
20 review and remand to the BIA for consideration of Dhargyal’s
21 testimony and the IJ’s related credibility determination.
22 See Urgen v. Holder, 768 F.3d 269 (2d Cir. 2014) (granting
23 similar petition).
3
1 We additionally note that, unlike eligibility for
2 asylum, which is dependent upon an applicant demonstrating a
3 well-founded fear of persecution in their country of
4 “‘nationality,’” Wangchuck v. Dep’t of Homeland Security,
5 448 F.3d 524, 528-29 (2d Cir. 2006) (quoting 8 U.S.C.
6 § 1101(a)(42)), withholding of removal and CAT relief are
7 “available as to . . . the proposed country of removal,” cf.
8 Dhoumo, 416 F.3d at 175 (discussing withholding of removal);
9 see 8 C.F.R. § 1208.16(c)(3) (predicating eligibility for
10 CAT relief on an finding that “it is more likely than not
11 that [the applicant] would be tortured if removed to the
12 proposed country of removal.” (emphasis added)). Here, the
13 IJ found that Dhargyal credibly established his Tibetan
14 ethnicity, and we have held that an applicant may establish
15 eligibility for withholding and CAT relief on the basis of
16 objective evidence even though an applicant’s claims of past
17 mistreatment were found not credible. See Paul v. Gonzales,
18 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v. U.S.
19 Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).
20 Thus, to the extent that the IJ’s finding of Dhargyal’s
21 Tibetan ethnicity is affirmed on remand, and China remains
22 designated as a country of removal, the BIA must consider
4
1 his eligibility for withholding and CAT relief as to China
2 irrespective of whether Dhargyal can establish Chinese
3 citizenship. See Paul, 444 F.3d at 156.
4 For the foregoing reasons, the petition for review is
5 GRANTED and the case is REMANDED to the BIA for further
6 proceedings consistent with this order.
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
9
5