Tsering Tithar Namocha v. Immigration & Customs Enforcement ( 2009 )

08-6151-ag
Namocha v. ICE
BIA
Chew, IJ
A097-849-385
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A
LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
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 10 th day of December, two thousand nine.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 ROGER J. MINER,
10 DEBRA ANN LIVINGSTON,
11 Circuit Judges.
12 _______________________________________
13
14 TSERING TITHAR NAMOCHA,
15 Petitioner,
16
17 v. 08-6151-ag
18 NAC
19 IMMIGRATION AND CUSTOMS ENFORCEMENT,
20 UNITED STATES DEPARTMENT OF HOMELAND
21 SECURITY,
22 Respondent.
23 ______________________________________
24
25 FOR PETITIONER: H. Raymond Fasano, Madeo & Fasano,
26 New York, New York.
1 FOR RESPONDENT: Tony West, Assistant Attorney
2 General, Civil Division; Anthony C.
3 Paine, Senior Litigation Counsel,
4 Office of Immigration Litigation;
5 Lance L. Jolley, Trial Attorney,
6 Office of Immigration Litigation,
7 Civil Division, United States
8 Department of Justice, Washington,
9 D.C.
1011 UPON DUE CONSIDERATION of this petition for review of a
12 Board of Immigration Appeals (“BIA”) decision, it is hereby
13 ORDERED, ADJUDGED, AND DECREED that the petition for review
14 is GRANTED.
15 Petitioner Tsering Tithar Namocha, an alleged native of
16 Tibet and citizen of the People’s Republic of China, seeks
17 review of a November 20, 2008 order of the BIA affirming the
18 October 18, 2006 decision of Immigration Judge (“IJ”) George
19 T. Chew denying her application for asylum, withholding of
20 removal, and relief under the Convention Against Torture
21 (“CAT”). In re Tsering Tithar Namocha, No. A097-849-385
22 (B.I.A. Nov. 20, 2008), aff’g No. A097-849-385 (Immig. Ct.
23 N.Y. City Oct. 18, 2006). We assume the parties’
24 familiarity with the underlying facts and procedural history
25 of this case.
26 When the BIA adopts the decision of the IJ and
27 supplements the IJ’s decision, this Court reviews the
28 decision of the IJ as supplemented by the BIA. See Yan Chen
2
1 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). This Court
2 reviews the agency’s factual findings, including adverse
3 credibility findings, under the substantial evidence
4 standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v.
5 Mukasey, 519 F.3d 90, 95 (2d Cir. 2008). We review de novo
6 questions of law and the application of law to undisputed
7 fact. Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
8 In addition to the general statutory requirement that
9 petitioners exhaust available administrative remedies,
10 8 U.S.C. § 1252(d)(1), petitioners must also raise to the
11 BIA the specific issues they later raise in this Court. See
12 Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004). While not
13 jurisdictional, this judicially imposed exhaustion
14 requirement is mandatory. Lin Zhong v. U.S. Dep’t of
15 Justice, 480 F.3d 104, 119-20 (2d Cir. 2007). However, we
16 have never held that a petitioner is limited to the “exact
17 contours” of his or her argument to the agency. Gill v.
18 INS, 420 F.3d 82, 86 (2d Cir. 2005). On the contrary, Title
19 8, section 1252(d)(1) does not prevent the Court from
20 considering “specific, subsidiary legal arguments, or
21 arguments by extension,” even if those arguments were not
22 presented below. Id.; see also Restrepo v. McElroy, 369
3
1 F.3d 627, 633 n.10 (2d Cir. 2004); Drax v. Reno, 338 F.3d
2 98, 112 n.19 (2d Cir. 2003).
3 Namocha argued before the BIA that the IJ’s adverse
4 credibility finding was flawed because the documents in
5 question were found only to be altered, not fraudulent, and
6 because the IJ failed to specify why the alterations to the
7 documents were material to Namocha’s credibility. 1 We find
8 Namocha’s argument that the IJ failed to make a finding that
9 she knew the documents were altered prior to their
10 submission, despite her testimony to the contrary, is a
11 “subsidiary argument” to the one she raised before the BIA.
12 See Lin Zhong, 480 F.3d at 119-120; Steevenez v. Gonzales,
13 476 F.3d 114, 117-18 (2d Cir. 2007).
14 The IJ’s adverse credibility determination was not
15 based on substantial evidence. See Corovic, 519 F.3d at 97-
16 98. In Corovic, we held that the submission of fraudulent
17 documents is “insufficient to hold that [an alien] lacks
1
In addition, Namocha testified at her merits
hearing that she did not know the identity documents were
altered when she submitted them. When asked during
cross-examination by the government whether she knew
about the alterations to the documents, Namocha
testified, “Before this time I did not know there was any
change or alteration” and that, “I can’t see anything any
changes or anything right now even.”
4
1 credibility where there is no indication or finding that he
2 knew or had reason to know that the documents [were]
3 fraudulent.” Id. at 97 (second alteration in original). We
4 concluded that “when an applicant contests that he knowingly
5 submitted a fraudulent document, the IJ must make an
6 explicit finding that the applicant knew the document to be
7 fraudulent before the IJ can use the fraudulent document as
8 the basis for an adverse credibility determination.” Id. at
9 97-98 (emphasis added). Because Namocha testified that she
10 did not know the documents were altered before she submitted
11 them, and because the IJ failed to make any finding
12 regarding her knowledge of the authenticity of the
13 documents, we remand to the BIA so that the agency may make
14 the necessary finding. See id.; see also Mufied v. Mukasey,
15 508 F.3d 88, 91-92 (2d Cir. 2007) (discussing the “ordinary
16 remand rule”). We reject the Government’s argument that
17 remand would be futile because Namocha was ordered removed
18 to Nepal and India in the alternative. Because the agency
19 never considered this argument, and our review is limited to
20 the reasoning of the agency, remand is appropriate. See INS
21 v. Ventura, 537 U.S. 12, 16-17 (2002) (per curiam); Manzur
22 v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.
5
1 2007).
2 For the foregoing reasons, the petition for review is
3 GRANTED, and the case REMANDED for further proceedings
4 consistent with this order. As we have completed our
5 review, any pending motion for a stay of removal in this
6 petition is DISMISSED as moot. Any pending request for oral
7 argument in this petition is DENIED in accordance with
8 Federal Rule of Appellate Procedure 34(a)(2) and Second
9 Circuit Local Rule 34(b).
10 FOR THE COURT:
11 Catherine O’Hagan Wolfe, Clerk
12
13
14 By:___________________________
6