12-4801 Dolma v. Holder

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. 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 for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 12th day of November, two thousand 4 fourteen. 5 6 PRESENT: BARRINGTON D. PARKER, JR., 7 DEBRA ANN LIVINGSTON, 8 CHRISTOPHER F. DRONEY, 9 Circuit Judges. 10 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 11 12 SONAM DOLMA 13 14 Petitioner, 15 16 v. No. 12‐4801 17 18 ERIC H. HOLDER, JR., UNITED STATES ATTORNEY 19 GENERAL, 20 Respondent. 21 22 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 23

1 1 FOR PETITIONER: JASON A. NIELSON, Mungoven & 2 Associates, P.C., New York, NY. 3 4 FOR RESPONDENT: STUART F. DELERY, Assistant Attorney 5 General, Civil Division; CHRISTOPHER C. 6 FULER, Deputy Chief, and ALISON MARIE 7 IGOE, Senior Counsel, National Security 8 Unit, Office of Immigration Litigation, U.S. 9 Department of Justice, Washington, DC. 10

11 UPON DUE CONSIDERATION of this petition for review of a Board of

12 Immigration Appeals (“BIA”) decision, IT IS HEREBY ORDERED,

13 ADJUDGED, AND DECREED that the petition for review is GRANTED.

14 Sonam Dolma, an ethnic Tibetan, seeks review of a November 7, 2012,

15 order of the BIA affirming the February 17, 2011, decision of an Immigration

16 Judge (“IJ”), which denied her application for deferral of removal under the

17 Convention Against Torture (“CAT”). In re Sonam Dolma, No. A099 928 254

18 (B.I.A. Nov. 7, 2012), aff’g No. A099 928 254 (Immig. Ct. N.Y. City Feb. 17, 2011).

19 We assume the parties’ familiarity with the underlying facts and procedural

20 history in this case.

21 We review the decisions of both the IJ and the BIA “for the sake of

22 completeness.” See Zaman v. Mukasey,

(2d Cir. 2008) (per

23 curiam). The applicable standards of review are well established. See

1 1252(b)(4); see also Weng v. Holder,

(2d Cir. 2009). We conclude

2 that the agency erred by declining to conduct a CAT analysis based on its

3 predicate determination that Dolma had not established her Chinese citizenship.

4 The agency erred in denying Dolma’s application for deferral of removal

5 under CAT because she “ha[d] not satisfactorily established that she is a citizen

6 of China” in order to meet “the burden of proof.” C.A.R. 5 (citing Dhoumo v.

7 B.I.A.,

) (2d Cir. 2005) (per curiam)). Unlike in cases of asylum

8 eligibility, “[a]n applicantʹs nationality . . . is not a threshold issue in determining

9 eligibility for withholding of removal and CAT relief.” Urgen v. Holder,

, 273 n.1 (2d Cir. 2014); cf. Dhoumo,

(holding that “petitioner’s

11 nationality, or lack of nationality, is a threshold question in determining his

12 eligibility for asylum”). The agency erred in treating it as such. Therefore, on

13 remand, the agency must conduct an analysis of whether Dolma has established

14 that it is more likely than not that she would be tortured in the proposed country

15 of removal.

16 On remand, the agency is also instructed to make an explicit determination

17 with respect to Dolmaʹs country of nationality and citizenship. The agency

18 ordered Dolma removed to China, and alternatively to Nepal, without first

3 1 determining whether she was a citizen or national of either country. But, where,

2 as here, an alien does not designate a country of removal, “an explicit

3 determination with respect to a petitionerʹs country of nationality or citizenship

4 is necessary to ensure compliance with the mandatory, consecutive removal

5 commands of

(b)(2).” Urgen,

. The agency’s failure

6 to decide petitioner’s country of nationality or citizenship not only violated this

7 requirement, but also would undermine its CAT analysis where CAT relief

8 depends on the likelihood that the applicant “would be tortured if removed to

9 the proposed country of removal.”

(c)(2) (emphasis added).

10 Because neither the IJ nor the BIA resolved Dolma’s country of nationality or

11 citizenship, it is unclear whether she may be removed to China or Nepal, and by

12 extension what country will be relevant to the agency’s CAT analysis.

13 For the foregoing reasons, the petition for review is GRANTED, and the

14 case REMANDED for further proceedings consistent with this order.

15 FOR THE COURT: 16 Catherine O’Hagan Wolfe, Clerk of Court 17 18

4