Wangchuck v. Department of Homeland

Decision Date15 May 2006
Docket NumberNo. 04-1307 AG.,04-1307 AG.
Citation448 F.3d 524
PartiesJigme WANGCHUCK, Petitioner, v. DEPARTMENT OF HOMELAND SECURITY, Immigration & Customs Enforcement, Respondents.
CourtU.S. Court of Appeals — Second Circuit

Gary J. Yerman, New York NY, for Petitioner.

Anton P. Giedt, Assistant United States Attorney, District of Massachusetts (Michael J. Sullivan, United States Attorney, of counsel) Boston, MA, for Respondents.

Before: KEARSE and SACK, Circuit Judges, and STANCEU, Judge.*

SACK, Circuit Judge.

The petitioner, Jigme Wangchuck, petitions for the review of a decision of the Board of Immigration Appeals ("BIA") denying his application for asylum, withholding of removal to India and China, and relief under the Convention Against Torture1 ("CAT"). Wangchuck, who was born in India to Tibetan refugee parents and has never been to China (of which Tibet is now an "autonomous region"2), asserts that the BIA erred in concluding that he has failed to demonstrate a well-founded fear of persecution in India or China. Wangchuck also challenges the BIA's conclusion that because he was firmly resettled in India, he is ineligible for asylum from China. We grant the petition because the BIA: (1) failed to determine Wangchuck's nationality; (2) improperly placed on him the burden of proving that he was not firmly resettled in India; (3) applied erroneous legal standards in its determination of whether Wangchuck had a well-founded fear of persecution in China; and (4) ordered Wangchuck removed, in the alternative, to China, despite the fact that Wangchuck, who was not born in China, may not be a national of China or have any other ties to the country that would authorize the agency to deport him to China.

BACKGROUND

Except where otherwise indicated, the facts underlying this petition are undisputed.

Wangchuck, a Buddhist monk, was born in 1972 in the state of Himachal Pradesh, in northern India. His parents are natives of Tibet who fled to India in 1959 after China suppressed an uprising against its assertion of sovereignty over Tibet. The Indian government considered Wangchuck and his parents to be refugees. As a refugee, Wangchuck received a "Registration Certificate" from that government, which served as a residential permit and identity document. The terms of the Registration Certificate, which was renewed annually throughout the years that Wangchuck resided in India, required him to inform local officials when he traveled to other parts of India for extended periods of time. The Indian government also issued Wangchuck an "Identity Certificate," which allows the holder to travel outside of India and to lawfully return provided that he or she obtains a "No Objection to Return to India" ("NORI") stamp.

On September 28, 1997, Wangchuck left India for the United States. He was admitted into the country on a six-month visitor's visa. Wangchuck states that before leaving India, he received a NORI stamp on his Identity Certificate indicating that the Indian government would not object to his returning to India. He was nonetheless denied a return visa when he attempted to obtain one in 1998 from the Indian Consulate in New York. Affidavits and correspondence from American citizens who accompanied Wangchuck to the Indian Consulate aver that consulate personnel told Wangchuck that his Identity Certificate and NORI stamp had expired and that they could only be renewed in India.

On September 21, 1998, Wangchuck applied for asylum and withholding of removal, specifically removal to India. Nearly a year later, on September 14, 1999, an immigration judge ("IJ") denied his application and granted him voluntary departure. The denial was affirmed by the BIA. On February 11, 2002, however, while Wangchuck's petition for review of the BIA's decision was pending in this Court, the then-Immigration and Naturalization Service3 stipulated to the vacatur of the BIA's and the IJ's decisions because the tape recording of the IJ's September 14, 1999, decision could not be located. Beginning on November 19, 2002, another IJ held hearings on Wangchuck's application.

At an August 27, 2003, hearing, Wangchuck testified that while in India, he attended protests every March 10 to commemorate the failed 1959 Tibetan uprising against Chinese rule on that date. In March 1992, when he was living in southern India, Wangchuck attended a protest in the city of Hupli. The demonstration was unusually large, he explained, because a Chinese dignitary was visiting the city at the time. Wangchuck testified that the Indian police arrested him. They detained him for four nights, until the groups organizing the protest paid a bribe to have him released. Wangchuck also testified that he was beaten at the 1992 protest. On cross-examination, Wangchuck said that he was "emotionally charged while protesting" and that the beating could have been to "calm us down." Tr. of Asylum Hr'g, A76 088 399, Aug. 27, 2003, at 47. According to Wangchuck's testimony before the IJ, the police in southern India "continued to intimidate" him after his release from jail, requiring him to report to the police station every month, and trying to "extract money out of" him. Id. at 22-23. He further testified that as a result of this harassment, he "couldn't stay [in southern India] any longer." Id. at 23.

Wangchuck moved to Dharamsala, in northern India. He testified that the following year, during the March 10 protests of 1993, he was again arrested. This time, Wangchuck says, he was held in jail only for one night; he does not allege that he was beaten.

Wangchuck testified that he was arrested a third time during the March 10 protests of 1996, this time in Delhi. According to Wangchuck, he spent three nights in a Delhi jail.

Wangchuck has never been to Tibet. He testified, however, that he fears he will be arrested by Chinese authorities if he enters the region. He named a Tibetan acquaintance who, according to Wangchuck, was born in India and traveled to Tibet to visit relatives, only to be arrested and held in prison for several years. He also produced a 2002 United States Department of State Country Report for China, which states that Chinese "authorities continued to commit serious human rights abuses, including instances of torture, arbitrary arrest, detention without public trial, and lengthy detention of Tibetan nationalists for peacefully expressing their political or religious views." U.S. Dep't of State, Country Reports on Human Rights Practices, 2002, China (includes Tibet, Hong Kong, and Macau) (March 31, 2003), available at http://www.state.gov/7/8 g/drl/rls/hrrpt/2002/7/818239.htm (last visited Apr. 10, 2006). The report also states: "The [Chinese] Government remained suspicious of Tibetan Buddhism in general because of its links to the Dalai Lama, and this suspicion extended to religious adherents who did not explicitly demonstrate their loyalty to the State." Id.

On August 27, 2003, the IJ denied Wangchuck asylum and withholding of removal. The IJ concluded that Wangchuck had firmly resettled in India and was therefore ineligible for asylum from China. The IJ also determined that Wangchuck had failed to demonstrate a well-founded fear of future persecution in either India or China, or a likelihood that he would be tortured in either country. The IJ ordered Wangchuck removed to India or, if "India does not accept [him], . . . to China." Oral Decision of the IJ, Aug. 27, 2003, at 18. The BIA affirmed the IJ's decision in a two-and-a-half page per curiam decision dated February 12, 2004. Wangchuck petitions for review of that decision.

DISCUSSION
I. Standard of Review

When the BIA briefly affirms the decision of an IJ and "adopt[s] the IJ's reasoning in doing so," we review the IJ's and the BIA's decisions together. Secaida-Rosales v. INS, 331 F.3d 297, 305 (2d Cir.2003); see also Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394-95 (2d Cir.2005) (per curiam). But when the BIA does not "adopt the decision of the IJ to any extent . . . . we review the decision of the BIA." Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). Here, the BIA did not expressly "adopt" the IJ's decision, but its brief opinion closely tracks the IJ's reasoning. It is not entirely clear whether we include the IJ's decision in our review in such a situation. Compare Yan Chen, 417 F.3d at 271 ("`[O]nly if the BIA expressly adopts or defers to a finding of the IJ, will we review the decision of the IJ.'") (quoting Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d Cir.2003)) with Secaida-Rosales, 331 F.3d at 305 (finding it appropriate to review the IJ's decision when BIA opinion "primarily recount[s] the IJ's reasoning"). Although we do not need to resolve the issue—because our conclusion would be the same either way—for the sake of completeness we will consider both the IJ's and the BIA's opinions.

We review the BIA's factual findings for substantial evidence, see id. at 306-07, its interpretation of immigration statutes with Chevron deference, see INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (citing Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)), and its interpretations of immigration regulations with "substantial deference," Joaquin-Porras v. Gonzales, 435 F.3d 172, 178 (2d Cir.2006) (internal quotation marks and citations omitted). However, "when the situation presented is the BIA's application of legal principles to undisputed facts, rather than its underlying determination of those facts or its interpretation of its governing statutes, our review is de novo." Monter v. Gonzales, 430 F.3d 546, 553 (2d Cir.2005) (internal quotation marks and citation omitted; alteration incorporated).

II. The BIA's Decision
A. Wangchuck's Nationality

As we explained in Dhoumo v. BIA, 416 F.3d 172 (2d Cir.2005) (per curiam), a "petitioner's nationality, or lack of nationality,...

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