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.,

(2d

Cir. 2006). The applicable standards of review are well

established. See

(b)(4)(B); Yanqin Weng v.

Holder,

(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,

(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,

(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,

(2d Cir. 2005). An alien may be granted asylum if he is a

“refugee.”

(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.]

(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,

(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,

(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

(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.”

(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,

.

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

(a); Hoodho v. Holder,

(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,

, 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

(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

(a)(42)

(definition);

§ 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

(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

9