Dolma v. Lynch

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
4 7th 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.
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
2
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
3
 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)
4
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

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