Sangpo v. Mukasey

264 F. App'x 95
CourtCourt of Appeals for the Second Circuit
DecidedFebruary 14, 2008
DocketNo. 07-2258-ag
StatusPublished

This text of 264 F. App'x 95 (Sangpo v. Mukasey) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sangpo v. Mukasey, 264 F. App'x 95 (2d Cir. 2008).

Opinion

SUMMARY ORDER

Petitioner Jamyang Sangpo, allegedly a native and citizen of Tibet, seeks review of an April 27, 2007 order of the BIA affirming the September 13, 2005 decision of Immigration Judge (“IJ”) Sandy Horn denying Sangpo’s applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Jamyang Sangpo, No. A 98 690 027 (B.I.A. Apr. 27, 2007), aff'g No. A 98 690 027 (Immig. Ct. N.Y. City Sept. 13, 2005). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

I. Asylum, Withholding, and CAT

When the BIA affirms the IJ’s decision in some respects but not others, this Court reviews the IJ’s decision as modified by the BIA decision, i.e., minus those arguments for denying relief that were rejected by the BIA. Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.2005). Here, the BIA found that “some” of the inconsistencies identified by the IJ were sufficient to support the adverse credibility finding in this case, but that Sangpo had “adequately explained” others. Given that the BIA explicitly agreed with the IJ’s findings with regard to Sangpo’s identity and the inconsistency concerning whether Sangpo’s wife and children were being tortured, it appeared to disagree with the IJ only insofar as he relied on an alleged inconsistency concerning whether Sangpo had testified that he participated in political activities in Tibet. Thus, we review both the BIA’s and IJ’s decisions, with the [97]*97exception of the finding the BIA rejected. See id. at 522.

This Court reviews the agency’s factual findings under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see, e.g., Zhou Yun Zhang v. INS, 386 F.3d 66, 73 & n. 7 (2d Cir.2004), overruled in part on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305 (2d Cir.2007). However, we will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.2005); see also Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 339-40 (2d Cir.2006) (agreeing with this principle, but avoiding remand, in spite of deficiencies in an adverse credibility determination, because it could be confidently predicted that the IJ would adhere to the decision were the case remanded).

An asylum applicant’s nationality is a threshold question in determining his eligibility for asylum, see Wangchuck v. Dep’t of Homeland Security, 448 F.3d 524, 528 (2d Cir.2006), and it is his burden to establish that eligibility, see 8 C.F.R. § 1208.13(a). Here, substantial evidence supports the IJ’s finding that Sangpo failed to establish his identity. The BIA and IJ appropriately declined to accept Sangpo’s household register into evidence other than for purposes of identification because he submitted it on the day of the hearing. The IJ accurately observed that the document indicated that it had been translated in June 2005, approximately three months prior to the September 2005 healing. In addition, even if Sangpo had only received it a month prior to the hearing, as his counsel suggested, the IJ appropriately found that there was “more than sufficient time” to have submitted the household register in a timely manner. Further, although the document indicated that Sangpo had resided in Tibet, the IJ correctly noted that it was not issued at the time of his birth and did not specify his nationality or citizenship. Moreover, while Sangpo asserts that the regulations do not require asylum-seekers to submit evidence within ten days of their hearings, we decline to review that issue because he failed to raise it before the BIA, or to object to that requirement during the hearing. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 121-22, 124 (2d Cir.2007) (holding that issue exhaustion is mandatory, even if not a jurisdictional requirement). Under these circumstances, the IJ reasonably declined to give weight to Sangpo’s household register. See Xiao Ji Chen, 471 F.3d at 341-42 (holding that the weight afforded to documentary evidence “ ‘lies largely’ within the discretion of the IJ”).

Additionally, the IJ reasonably relied on a forensic report to find that Sangpo’s Nepalese passport “clouded” the issue of his identity. The forensic report in the record indicates that Sangpo’s assertedly fraudulent Nepalese passport “conform[s] to genuine specimens” on file in the Forensic Document Laboratory. Because Sangpo does not specifically challenge the reliability of the report, any such challenge is deemed waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n. 7 (2d Cir. 2005) (emphasizing that, “[ijssues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal”).

Sangpo argues that the lack of clarity regarding his nationality is, in itself, basis for a remand. While Sangpo is correct that an applicant’s nationality is a threshold issue, it is his burden to establish his nationality and the failure to do so is a proper basis for the denial of relief. See [98]*98Dhoumo v. BIA, 416 F.3d 172 (2d Cir.2005).2 Here, based on the forensic report, the IJ properly reasoned that Sangpo’s passport indicated that he was a citizen of Nepal. See Xiao Ji Chen, 471 F.3d at 341 (emphasizing that in rejecting an applicant’s claim, the IJ should “consider all the evidence in the record that has probative value”).

Moreover, the IJ reasonably declined to credit the testimony of Sangpo’s witness, Jamga Lama, who testified as to Sangpo’s nationality. Lama did not know the names of any of Sangpo’s children, and, when asked the name of Sangpo’s brothers, Lama provided three names, although Sangpo indicated in his written application that he had only two brothers. Furthermore, although Sangpo contends that there were problems with the translation throughout the hearing, he does not point to a translation error within this specific portion of Lama’s testimony. In addition, the IJ properly noted that Lama failed to provide any corroborative documentation as to his own identity or prior residence.

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264 F. App'x 95, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sangpo-v-mukasey-ca2-2008.