Samdup v. Holder , 457 F. App'x 44 ( 2012 )

11-115-ag
Samdup v. Holder
BIA
Bukszpan, IJ
A098 478 472
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 27th day of January, two thousand twelve.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 JOSÉ A. CABRANES,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 MIGMAR SAMDUP,
14 Petitioner,
15
16 v. 11-115-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Migmar Samdup, pro se, Brooklyn, New
24 York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Leslie McKay, Assistant
28 Director; Ilissa M. Gould, Trial
29 Attorney, Office of Immigration
30 Litigation, United States Department
31 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this pro se petition for
2 review of a Board of Immigration Appeals (“BIA”) decision,
3 it is hereby ORDERED, ADJUDGED, AND DECREED, that the
4 petition for review is DENIED.
5 Petitioner Migmar Samdup, an alleged native and citizen
6 of the People’s Republic of China and ethnic Tibetan, seeks
7 review of a December 13, 2010, order of the BIA, affirming
8 the July 24, 2008, decision of Immigration Judge (“IJ”)
9 Joanna Miller Bukszpan, which denied his application for
10 asylum, withholding of removal, and relief under the
11 Convention Against Torture (“CAT”). In re Migmar Samdup,
12 No. A098 478 472 (B.I.A. Dec. 13, 2010), aff’g No. A098 478
13 472 (Immig. Ct. N.Y. City July 24, 2008). We assume the
14 parties’ familiarity with the underlying facts and
15 procedural history in this case.
16 Under the circumstances of this case, we have reviewed
17 both the BIA’s and IJ’s opinions. Yun-Zui Guan v. Gonzales,
18 432 F.3d 391, 394 (2d Cir. 2005). The applicable standards
19 of review are well-established. See 8 U.S.C.
20 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513
21 (2d Cir. 2009).
22 In finding Samdup not credible, the agency reasonably
23 relied on Forensic Examiner Elaine Wooten’s expert testimony
2
1 indicating that his Chinese birth certificate was
2 fraudulent. See Borovikova v. U.S. Dep’t of Justice, 435
3 F.3d 151, 157-58 (2d Cir. 2006) (determining that because
4 substantial evidence supported IJ’s finding that a submitted
5 birth certificate was likely fraudulent, IJ did not err in
6 resting adverse credibility determination on that finding);
7 In re O-D-, 21 I. & N. Dec. 1079 (B.I.A. 1998); see also Rui
8 Ying Lin v. Gonzales, 445 F.3d 127, 133 (2d Cir. 2006)
9 (discussing the maxim of falsus in uno, falsus in omnibus);
10 Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (same).
11 Indeed, Samdup does not challenge the basis of the expert’s
12 opinion, that his birth certificate contained a counterfeit
13 watermark and lacked the requisite security details, but
14 instead argues that he provided a reasonable explanation for
15 how he acquired the birth certificate and for its discrepant
16 place of birth information. However, because Samdup’s
17 purported explanations do not address the expert’s basis for
18 finding that his birth certificate is fraudulent and would
19 not be compelling to a reasonable fact-finder, the agency
20 did not err in rejecting them. See Majidi v. Gonzales, 430
21 F.3d 77, 80-81 (2d Cir. 2005).
22
3
1 The agency also reasonably relied on Samdup’s visa,
2 which he admittedly procured through fraud on U.S. Embassy
3 officials, see Rui Ying Lin, 445 F.3d at 133, Siewe, 480
4 F.3d at 170, as well as the fact that Samdup’s fraud
5 pertained to his identity, a central element of his claim,
6 see In re O-D-, 21 I. & N. Dec. at 1082 (“We find that the
7 respondent’s fraud pertains to a central element of his
8 asylum claim, i.e., his identity, perhaps the most critical
9 of elements, and thereby significantly undermines the
10 credibility of his request for asylum.”). Although we have
11 recognized that “[t]he presentation of fraudulent documents
12 that were created to escape persecution may actually tend to
13 support an alien’s application,” see, e.g., Siewe, 480 F.3d
14 at 170, the IJ reasonably determined that Samdup’s visa was
15 not procured to escape persecution, given that he never
16 alleged that he experienced or feared any persecution in
17 Nepal and stayed there for three years before leaving for
18 the United States. Because the agency’s adverse credibility
19 determination is otherwise supported by substantial
20 evidence, we decline to reach Samdup’s challenge to the IJ’s
21 additional ground for finding him not credible, namely, the
22 alleged mischaracterization of his U.N. protest photo
4
1 testimony. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471
2 F.3d 315, 339 (2d Cir. 2006) (citation omitted).
3 Samdup’s additional arguments are without merit. In
4 light of the agency’s underlying credibility determination,
5 Samdup’s failure to establish that he is a citizen of China,
6 and the IJ’s explicit consideration of photographs of him at
7 a demonstration, the record does not compellingly suggest
8 that the agency ignored any evidence of his anti-Chinese
9 activities in the United States. See Xiao Ji Chen, 471 F.3d
10 at 337 n.17.
11 Lastly, although an asylum applicant’s “nationality, or
12 lack of nationality, is a threshold question in determining
13 his eligibility for asylum,” see Jigme Wangchuck v. DHS, 448
14 F.3d 524, 529 (2d Cir. 2006) (quotation omitted), because
15 Samdup’s application is based on his assertion that he is a
16 citizen and national of China, it is his concomitant burden
17 to establish his identity, see In re O-D-, 21 I. & N. Dec.
18 at 1082, particularly in light of the fact that he has
19 conceded his removability from the United States.
20 For the foregoing reasons, the petition for review is
21 DENIED. As we have completed our review, any stay of
22 removal that the Court previously granted in this petition
23 is VACATED, and any pending motion for a stay of removal in
5
1 this petition is DISMISSED as moot. Any pending request for
2 oral argument in this petition is DENIED in accordance with
3 Federal Rule of Appellate Procedure 34(a)(2), and Second
4 Circuit Local Rule 34.1(b).
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
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