Depa v. Holder , 486 F. App'x 933 ( 2012 )

11-1804-ag
Depa v. Holder
BIA
Nelson, IJ
A093 397 355
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 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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 10th day of July, two thousand twelve.
PRESENT:
ROBERT D. SACK,
REENA RAGGI,
PETER W. HALL,
Circuit Judges.
______________________________________
TASHI DEPA,
Petitioner,
v. 11-1804-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Jason A. Nielson, Law Offices of
Thomas Mungoven, New York, New York
FOR RESPONDENT: Tony West, Assistant Attorney
General; Greg D. Mack, Senior
Litigation Counsel; Shahrzad Baghai,
Trial Attorney, Office of
Immigration Litigation, Civil
Division, United States Department
of Justice, Washington, D.C.
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 Tashi Depa, an ethnic Tibetan, seeks review
of an April 5, 2011 decision of the BIA affirming the
February 6, 2009 decision of Immigration Judge (“IJ”)
Barbara A. Nelson denying Depa’s application for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Tashi Depa, No. A093 397 355
(B.I.A. Apr. 5, 2011), aff’g No. A093 397 355 (Immig. Ct.
N.Y. City Feb. 6, 2009). We assume the parties’ familiarity
with the underlying facts and procedural history of the
case.
Under the circumstances of this case, we have reviewed
both the IJ’s and the BIA’s decisions “for the sake of
completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
2008). 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).
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While “a ‘petitioner’s nationality, or lack of
nationality, is a threshold question in determining . . .
eligibility for asylum,’” Wangchuck v. DHS, 448 F.3d 524,
528 (2d Cir. 2006) (quoting Dhoumo v. BIA, 416 F.3d 172, 174
(2d Cir. 2005) (per curiam)), the IJ reasonably concluded
here that Depa is a Chinese national in light of her
statement on the record that she is a native and citizen of
Tibet. The United States currently recognizes Tibet to be
part of China.
The agency did not err in finding that the alleged
persecution of Depa’s parents and husband for opposing
Chinese control of Tibet did not constitute persecution of
Depa that would render her eligible for asylum.1 “As a
general principle, an asylum applicant cannot claim past
persecution based solely on harm . . . inflicted on a family
member on account of that family member's political opinion
. . . .” Tao Jiang v. Gonzales, 500 F.3d 137, 141 (2d Cir.
2007). The agency reasonably concluded that Depa failed to
1
Depa does not challenge the agency’s finding that
her testimony regarding a beating she allegedly suffered
as a child in China was not credible. Though Depa
challenges the IJ’s finding that her testimony regarding
harm she allegedly suffered in Nepal was not credible, we
need not reach this argument because Depa has been
ordered removed to China, not Nepal.
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carry her burden of showing that she “shares (or is
perceived to share) the characteristic [i.e., being a
dissident] that motivated persecutors to harm th[ose] family
member[s].” Id. The agency was therefore not required to
consider Depa’s allegation that she “suffered . . .
continuing hardship after the[se] incident[s]” in the form
of emotional and psychological harm. Id.; see also Kone v.
Holder, 596 F.3d 141, 146 (2d Cir. 2010) (noting that
“humanitarian asylum” is reserved for aliens who suffered
“particularly severe” past persecution).
In addition, the agency did not err in concluding that
Depa failed to demonstrate a well-founded fear of future
persecution in China based on her political activities in
Nepal and the United States. In order to establish such a
well-founded fear, “an alien must make some showing that
authorities in [her] country of nationality are either aware
of [her] activities [outside that country] or likely to
become aware of [such] activities.” Hongsheng Leng v.
Mukasey, 528 F.3d 135, 143 (2d Cir. 2008). The agency
reasonably concluded that record evidence did not show that
Chinese authorities were likely to view Depa as a dissident
based on her political activities outside China. See Jian
Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005)
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(reasoning that absent “solid support” in record that fear
of future persecution was objectively reasonable, such fear
was “speculative at best”).
Finally, because Depa’s asylum, withholding of removal,
and CAT claims share the same factual predicate, the agency
did not err in denying all three forms of relief. See Paul
v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot. Any pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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