17-2462 Kasang v. Barr BIA Cheng, IJ A087 593 582 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 the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 30th day of October, two thousand nineteen.
PRESENT: GUIDO CALABRESI, SUSAN L. CARNEY, MICHAEL H. PARK, Circuit Judges. _____________________________________
TENZING KASANG, AKA TENZIN KELSANG, Petitioner,
v. 17-2462 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONER: Tenzin Kelsang, pro se, St. Louis, MO.
FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Anthony P. Nicastro, Assistant Director; Linda Y. Cheng, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Tenzing Kasang, a native of India, seeks
review of an April 19, 2017 decision of the BIA affirming an
August 3, 2016 decision of an Immigration Judge (“IJ”) denying
Kasang’s application for asylum. In re Tenzing Kasang, No.
A 087 593 582 (B.I.A. Apr. 19, 2017), aff’g No. A 087 593 582
(Immig. Ct. N.Y. City Aug. 3, 2016). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
Under the circumstances of this case, we review both the
IJ’s and BIA’s decisions “for the sake of completeness.”
Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d
Cir. 2006). The applicable standards of review are well
established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
Holder, 562 F.3d 510, 513 (2d Cir. 2009). Because Kasang is
pro se, we construe his submissions as “rais[ing] the 2 strongest arguments that they suggest.” Triestman v. Fed.
Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal
quotation marks and emphasis omitted). Because the IJ
granted Kasang’s application for withholding of removal as to
Nepal, only the agency’s denial of asylum is at issue. As
discussed below, we conclude that the agency reasonably
concluded that Kasang is a national of India and therefore
eligible for asylum only with respect to that country.
Kasang waived any claim of asylum as to India, however, by
failing to assert it in his brief.
Indian Nationality
Contrary to the Government’s position, Kasang exhausted
his claim of statelessness before the agency by asserting
ambiguities as to his legal status in India. See Gill v.
INS, 420 F.3d 82, 86 (2d Cir. 2005) (declining to limit
petitioner “to the exact contours of his argument below”).
“The determination of an alien’s nationality or lack
thereof is a threshold inquiry in determining the alien’s
eligibility for asylum.” Dhoumo v. BIA, 416 F.3d 172, 174
(2d Cir. 2005). An alien may be granted asylum if he is a
“refugee.” 8 U.S.C. § 1158(b)(1)(A). A refugee is defined
3 with respect to the relationship he has to his country of
nationality as:
[A]ny person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution [on account of a protected ground.]
8 U.S.C. § 1101(a)(42). Under this definition of refugee,
if Kasang has no nationality, then he would qualify for asylum
because the country where he last habitually resided was
Nepal, and the IJ granted withholding of removal as to Nepal,
a determination that rests on a more demanding burden of proof
than asylum. See Wangchuck, 448 F.3d at 529 (noting that if
person has no nationality, he is eligible for asylum from
“country in which he ‘habitually resided’ prior to entering
the United States”); Paul v. Gonzales, 444 F.3d 148, 155 (2d
Cir. 2006) (“It is well-settled that the burden of proof for
a withholding of removal claim is higher than the burden of
proof for an asylum claim.”). As a condition of asylum
eligibility, it is the alien’s burden to establish that he is
a refugee. See 8 U.S.C. § 1158(b)(1)(B)(i); 8 C.F.R.
4 § 1208.13(a) (placing the burden of proving refugee status on
the applicant).
The Immigration and Nationality Act defines “national”
as “a person owing permanent allegiance to a state.” 8 U.S.C.
§ 1101(a)(21). “Nationality is a status conferred by a
state, and will generally be recognized by other states
provided it is supported by a ‘genuine link’ between the
individual and the conferring state.” Dhoumo, 416 F.3d at
175.
Kasang’s counsel conceded that Kasang was a “native and
citizen” of India. Tr. of Hearing 6:4-20 (Jan. 27, 2010)
(Certified Administrative Record (“CAR”) at 125); see 8
C.F.R. § 1208.13(a); Hoodho v. Holder, 558 F.3d 184, 193 (2d
Cir. 2009) (“In the absence of ‘egregious circumstances,’ [an
alien] remains bound by his attorney’s concession of
removability.”). When Kasang, through counsel, sought to
withdraw the concession of Indian citizenship, the IJ gave
Kasang the opportunity to move to replead the allegation, but
Kasang’s counsel eventually declined to do so. Tr. of Hearing
69:10-11 (Mar. 7, 2012) (CAR at 195). After remand by the
BIA, Kasang declined to submit additional evidence to the IJ.
5 According to records of the Department of Homeland Security,
Kasang also admitted to a Border Patrol Agent that he was a
“citizen and national” of India. Form I-213 (Sept. 21, 2009)
(CAR at 424).
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17-2462 Kasang v. Barr BIA Cheng, IJ A087 593 582 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 the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 30th day of October, two thousand nineteen.
PRESENT: GUIDO CALABRESI, SUSAN L. CARNEY, MICHAEL H. PARK, Circuit Judges. _____________________________________
TENZING KASANG, AKA TENZIN KELSANG, Petitioner,
v. 17-2462 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONER: Tenzin Kelsang, pro se, St. Louis, MO.
FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Anthony P. Nicastro, Assistant Director; Linda Y. Cheng, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Tenzing Kasang, a native of India, seeks
review of an April 19, 2017 decision of the BIA affirming an
August 3, 2016 decision of an Immigration Judge (“IJ”) denying
Kasang’s application for asylum. In re Tenzing Kasang, No.
A 087 593 582 (B.I.A. Apr. 19, 2017), aff’g No. A 087 593 582
(Immig. Ct. N.Y. City Aug. 3, 2016). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
Under the circumstances of this case, we review both the
IJ’s and BIA’s decisions “for the sake of completeness.”
Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d
Cir. 2006). The applicable standards of review are well
established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
Holder, 562 F.3d 510, 513 (2d Cir. 2009). Because Kasang is
pro se, we construe his submissions as “rais[ing] the 2 strongest arguments that they suggest.” Triestman v. Fed.
Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal
quotation marks and emphasis omitted). Because the IJ
granted Kasang’s application for withholding of removal as to
Nepal, only the agency’s denial of asylum is at issue. As
discussed below, we conclude that the agency reasonably
concluded that Kasang is a national of India and therefore
eligible for asylum only with respect to that country.
Kasang waived any claim of asylum as to India, however, by
failing to assert it in his brief.
Indian Nationality
Contrary to the Government’s position, Kasang exhausted
his claim of statelessness before the agency by asserting
ambiguities as to his legal status in India. See Gill v.
INS, 420 F.3d 82, 86 (2d Cir. 2005) (declining to limit
petitioner “to the exact contours of his argument below”).
“The determination of an alien’s nationality or lack
thereof is a threshold inquiry in determining the alien’s
eligibility for asylum.” Dhoumo v. BIA, 416 F.3d 172, 174
(2d Cir. 2005). An alien may be granted asylum if he is a
“refugee.” 8 U.S.C. § 1158(b)(1)(A). A refugee is defined
3 with respect to the relationship he has to his country of
nationality as:
[A]ny person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution [on account of a protected ground.]
8 U.S.C. § 1101(a)(42). Under this definition of refugee,
if Kasang has no nationality, then he would qualify for asylum
because the country where he last habitually resided was
Nepal, and the IJ granted withholding of removal as to Nepal,
a determination that rests on a more demanding burden of proof
than asylum. See Wangchuck, 448 F.3d at 529 (noting that if
person has no nationality, he is eligible for asylum from
“country in which he ‘habitually resided’ prior to entering
the United States”); Paul v. Gonzales, 444 F.3d 148, 155 (2d
Cir. 2006) (“It is well-settled that the burden of proof for
a withholding of removal claim is higher than the burden of
proof for an asylum claim.”). As a condition of asylum
eligibility, it is the alien’s burden to establish that he is
a refugee. See 8 U.S.C. § 1158(b)(1)(B)(i); 8 C.F.R.
4 § 1208.13(a) (placing the burden of proving refugee status on
the applicant).
The Immigration and Nationality Act defines “national”
as “a person owing permanent allegiance to a state.” 8 U.S.C.
§ 1101(a)(21). “Nationality is a status conferred by a
state, and will generally be recognized by other states
provided it is supported by a ‘genuine link’ between the
individual and the conferring state.” Dhoumo, 416 F.3d at
175.
Kasang’s counsel conceded that Kasang was a “native and
citizen” of India. Tr. of Hearing 6:4-20 (Jan. 27, 2010)
(Certified Administrative Record (“CAR”) at 125); see 8
C.F.R. § 1208.13(a); Hoodho v. Holder, 558 F.3d 184, 193 (2d
Cir. 2009) (“In the absence of ‘egregious circumstances,’ [an
alien] remains bound by his attorney’s concession of
removability.”). When Kasang, through counsel, sought to
withdraw the concession of Indian citizenship, the IJ gave
Kasang the opportunity to move to replead the allegation, but
Kasang’s counsel eventually declined to do so. Tr. of Hearing
69:10-11 (Mar. 7, 2012) (CAR at 195). After remand by the
BIA, Kasang declined to submit additional evidence to the IJ.
5 According to records of the Department of Homeland Security,
Kasang also admitted to a Border Patrol Agent that he was a
“citizen and national” of India. Form I-213 (Sept. 21, 2009)
(CAR at 424).
A 2011 State Department issue paper on Tibetans in Nepal
and India supports the conclusion that Kasang is a citizen of
India based on Indian law applicable to those born in 1982,
the year of his birth. Issue Paper: Tibetans in India and
Nepal (U.S. Dep’t of State: May 2011) (CAR at 422). Kasang
asserted that, despite Indian law’s provision that he is an
Indian citizen, he would not be recognized as one there
because he was born at home, his birth was not registered,
and he does not have a birth certificate. The IJ reasonably
gave diminished weight to his testimony on this matter because
it was based on hearsay statements from his parents. The IJ
determined that, even if Kasang’s birth in India was not
registered, he could still qualify as an Indian citizen.
There is some record support for the assertion that India may
not recognize Kasang as a national because of his long
residence in Nepal, his Tibetan ethnicity, and the absence of
evidence of his birth registration in India. Overall,
6 however, substantial evidence supports the agency’s
conclusion that Kasang is a national of India in light of
Kasang’s initial concessions that he was a national of India
and because Indian law recognizes as citizens individuals
born in India at the time of Kasang’s birth.
Asylum as to India
Kasang does not assert a claim of past persecution or a
fear of future persecution in India in his brief on appeal
and thus has waived any claim that the agency erred in denying
him asylum as to India. See Yueqing Zhang v. Gonzales, 426
F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005) (noting that
petitioner abandons issues and claims not raised in his
brief). Even were we to consider such a claim, however, we
would find no error in the agency’s decision as Kasang’s
stated concerns about returning to India were based on his
lack of family in India. Tr. of Hearing 147:2-4 (Sept. 23,
2014) (CAR at 275). These concerns, while grounded in facts,
do not amount to a fear of future persecution on account of
a protected ground. See 8 U.S.C. § 1101(a)(42),
1158(b)(1)(A), (B).
7 Chinese Nationality
Substantial evidence also supports the agency’s decision
that Kasang did not show that he is a Chinese national. The
record contains no evidence to support a claim that China
would recognize Kasang as a Chinese national because he is
ethnically Tibetan or because his father was born in Tibet.
The same 2011 State Department issue paper mentioned above
discusses three Tibetans who were forcibly returned to China
from Nepal, but it is unclear from the document whether the
individuals were born in Tibet. CAR at 422. Kasang
testified that authorities in Nepal threatened to deport him
to China for protesting, but this does not establish that
China would accept him or recognize him as a Chinese national.
Accordingly, Kasang failed to demonstrate that he is a
“refugee” with respect to China. See 8 U.S.C. § 1101(a)(42)
(definition); id. § 1158(b)(1)(B) (burden of proof).
Thus, because Kasang is a national of India, he is not
stateless, and is not eligible for asylum as to Nepal. He
has waived his asylum claim as to India. Because he did not
present evidence to show that he is a national of China, the
agency did not err in denying asylum with respect to that
8 country. See 8 U.S.C. § 1101(a)(42).
For the foregoing reasons, the petition for review is
DENIED. All pending motions and applications are DENIED and
stays VACATED.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court