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
4 New York, on the 10th 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.
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
2
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
3
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
4
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
5
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
6
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
7