Tsomo v. Holder

10-3810-ag
Tsomo v. Holder
BIA
Nelson, IJ
A089 252 604
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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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 22nd day of February, two thousand twelve.
PRESENT:
JON O. NEWMAN,
ROBERT A. KATZMANN,
SUSAN L. CARNEY,
Circuit Judges.
______________________________________
THINLEY TSOMO,
Petitioner,
10-3810-ag
v. NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Thinley Tsomo, pro se, Elmhurst,
N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Richard M. Evans, Assistant
Director; Allen W. Hausman, Senior
Litigation Counsel, 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 DISMISSED, in part, and DENIED, in part.
Petitioner, Thinley Tsomo, a native of Nepal, seeks
review of a September 10, 2010 decision of the BIA affirming
the January 22, 2009 decision of Immigration Judge (“IJ”)
Barbara A. Nelson denying her application for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Thinley Tsomo, No. A089 252
604 (B.I.A. Sep. 10, 2010), aff’g No. A089 252 604 (Immig.
Ct. N.Y. City Jan. 22, 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
the IJ’s decision as modified by the BIA’s decision. See
Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522
(2d Cir. 2005). 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). Because Tsomo
does not challenge the agency’s denial of CAT relief, we
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address only her claims for asylum and withholding of
removal.
I. Asylum
Tsomo, who was born in Nepal to Tibetan refugees,
argues that the agency erred in denying her application for
asylum without reaching the threshold question of her
nationality. However, while determination of alien’s
nationality is essential to adjudicate the merits of an
asylum application, see Wangchuck v. DHS, 448 F.3d 524, 528
(2d Cir. 2006), the agency was not required to determine
Tsomo’s nationality because it pretermitted her asylum
application as it was not filed within one year of her entry
into the United States.
Tsomo argues that the agency erred in pretermitting her
asylum application as untimely because she demonstrated
changed country conditions in Nepal. However, pursuant to
8 U.S.C. § 1158(a)(3), we are without jurisdiction to review
a challenge to the agency’s finding that an asylum
application is untimely or that an alien did not establish
changed circumstances excepting her application from the
time limitation. While we retain jurisdiction to review
constitutional claims and “questions of law,” 8 U.S.C.
§ 1252(a)(2)(D), we cannnot consider Tsomo’s argument as it
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“essentially disputes the correctness of the [agency’s]
fact-finding.” Xiao Ji Chen v. U.S. Dep’t of Justice, 471
F.3d 315, 329 (2d Cir. 2006). Thus, we dismiss for lack of
jurisdiction Tsomo’s petition insofar as it challenges the
agency’s denial of asylum.
II. Withholding of Removal
The agency was not required to determine Tsomo’s
nationality in order to decide whether she was eligible for
withholding of removal as her claim for withholding was
specifically a claim that she could not be removed to Nepal
as ordered by the IJ because she faced persecution there.
See 8 U.S.C. § 1231(b)(3)(A). Substantial evidence supports
the agency’s determination that she did not meet her burden
of proof.
Leaving aside the issue of whether Tsomo’s beating at a
1990 free Tibet rally was on account of a protected ground,
the agency reasonably concluded that this single incident,
during which Tsomo was not in detention, was not severe
enough to rise to the level of persecution. See Ivanishvili
v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir. 2006)
(providing that persecution requires that the harm suffered
be sufficiently severe, rising above “mere harassment”);
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Jian Qiu Liu v. Holder, 632 F.3d 820, 822 (2d Cir. 2011)
(finding no error in BIA’s conclusion that alien failed to
establish persecution when he was beaten prior to being
detained and his injuries “required no formal medical
attention and had no lasting physical effect”). As noted by
the agency, while Tsomo continued to reside in the same
location in Nepal for several years after this incident and
continued to participate in political demonstrations, she
did not have any further problems with the police or other
authorities.
Tsomo also did not establish a likelihood that she
would face future harm. As the agency found, there is no
evidence that the Nepalese government knows about, or would
target Tsomo because of her participation in demonstrations
in the United States for a free Tibet. Moreover, while
Tsomo generally asserts that the Nepalese government
persecutes Tibetans and deports them to China, we are unable
to consider the 2010 State Department Report that she offers
in support of that claim as it did not form part of the
administrative record. See 8 U.S.C. § 1252(b)(4)(A) (“[T]he
court of appeals shall decide the petition only on the
administrative record on which the order of removal is
based.”). Absent “solid support in the record,” Tsomo’s
5
assertion that she will be persecuted or deported to China
on account of her nationality is “speculative at best.”
Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005)
(per curiam). Thus, substantial evidence supports the
agency’s denial of withholding of removal.
For the foregoing reasons, the petition for review is
DISMISSED, in part, and DENIED, in part.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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