Dhoumo v. Board of Immigration Appeals, Docket No. 03-4877-AG.

• Citation: 416 F.3d 172
• Decision Date: 27 July 2005
• Docket Number: Docket No. 03-4877-AG.
• Parties: Tenzin DHOUMO, Petitioner, v. BOARD OF IMMIGRATION APPEALS, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

416 F.3d 172

Tenzin DHOUMO, Petitioner, v. BOARD OF IMMIGRATION APPEALS, Respondent.

Docket No. 03-4877-AG.

United States Court of Appeals, Second Circuit.

Submitted: June 24, 2005.

Decided: July 27, 2005.

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

Jim Letten, United States Attorney for the Eastern District of Louisiana, Constantine D. Georges and Diane Hollenshead Copes, Assistant United States Attorneys, New Orleans, LA, for Respondent.

POOLER and SOTOMAYOR, Circuit Judges, CHIN, District Judge.^*

PER CURIAM.

Petitioner Tenzin Dhoumo petitions for review of the Board of Immigration Appeals ("BIA")'s April 15, 2003, order summarily affirming the Immigration Judge ("IJ")'s written decision and order dated June 6, 2001, rejecting his claims for asylum and withholding of removal, and ordering him removed to India. Because the IJ and BIA failed to address the threshold issue of petitioner's nationality, the petition is granted, the BIA's order is vacated, and the case is remanded.

BACKGROUND

Dhoumo was born in India in 1963 to two Tibetan refugee parents and raised in a Tibetan refugee camp in India. Tibet is today part of the People's Republic of China. According to petitioner's unrebutted account of Tibetan history, Tibetan followers of the Dalai Lama, reacting to what they viewed as encroachments on Tibet's traditional autonomy, unsuccessfully revolted against the Chinese Communist central government in 1959. After the revolt was suppressed, the Dalai Lama and thousands of other Tibetan officials and citizens went into exile in India and other countries. Petitioner's parents were among those who fled, arriving in India in 1960. State Department background materials entered into evidence indicate that there are today about 100,000 Tibetan refugees living in India. Background materials submitted both by petitioner and by respondent are in agreement that the conditions of life of Tibetan refugees living in India are in some respects restricted compared to those of Indian citizens, although the precise degree of these restrictions is not entirely clear. Tibetan refugees and their children living in India are generally classified by the Indian government as Tibetan refugees and not as Indian citizens. The Chinese government considers Tibetan refugees and their children outside China to be Chinese nationals.

Petitioner entered the United States in New York on July 27, 1997, and filed an application for asylum dated January 29, 1998, stating, among other things, that he was unwilling to return to Tibet because he feared persecution by the Chinese government there. In a written pleading filed with the Immigration Court dated June 2, 1998, petitioner denied the allegation that he was "a native . . . and a citizen of" India, and asserted claims to asylum and withholding of removal, declining to specify a country of removal. On that same date he appeared for a hearing before the IJ, at which he submitted his written pleading and confirmed that he denied that he was a national or citizen of India. In a memorandum dated March 27, 1999, petitioner argued that he was a Chinese national and eligible for asylum based on a fear of persecution in China, which includes Tibet as a political subdivision, and also arguing that Tibetan refugees from China who are living in India cannot be considered to have "firmly resettled" there. At the initial merits hearing before the IJ on October 20, 1999, petitioner set forth that he sought asylum from China as stated in his memorandum, but that in the event he was found to have no nationality, he wished his asylum claims to be evaluated with reference to India. Because petitioner had never been to China, and therefore any past persecution would have to be established solely on the basis of testimony about occurrences in India, the IJ directed that petitioner address past occurrences in India. During several hearings over the course of the next year and a half, petitioner presented evidence regarding his conditions of residence and alleged incidents of persecution in India.

In a written decision dated June 6, 2001, the IJ denied petitioner's claims in their entirety. The IJ did not discuss or make any specific finding as to petitioner's nationality, and made no reference to his argument that he is a national of China. She found petitioner incredible primarily because his testimony regarding events in India was found to be inconsistent with documentary evidence of country conditions.

Petitioner appealed to the BIA, raising in his brief challenges to the IJ's failure to make a finding as to his nationality or to address his argument that he was a Chinese national, and to the IJ's adverse credibility finding. Petitioner also attached a copy of his March 27, 1999, brief submitted to the IJ arguing that he was a Chinese national. By order dated April 15, 2003, the BIA summarily affirmed without opinion. Petitioner timely petitioned this Court for review, again challenging the failure of the IJ and BIA to address his nationality, as well as arguing that the IJ's adverse credibility finding was not supported by substantial evidence.

Because petitioner's nationality, or lack of nationality, is a threshold question in determining his eligibility for asylum, the IJ and BIA erred in failing to address it. We therefore grant the petition for review, vacate the BIA's order, and remand for the IJ and BIA to address petitioner's nationality in the first instance. In light of this disposition, we do not decide whether the IJ's adverse credibility finding was supported by substantial evidence.

DISCUSSION

Where, as here, the BIA summarily affirms the IJ pursuant to 8 C.F.R. § 1003.1(e)(4)(i), we review the IJ's decision directly. Secaida-Rosales v. INS, 331 F.3d 297, 305 (2d Cir.2003). We may reverse the IJ for lack of substantial evidence "only if no reasonable fact-finder" would have reached the same conclusion. Ramsameachire v. Ashcroft, 357 F.3d 169, 177 (2d Cir.2004) (internal quotation marks omitted). We defer to the BIA's reasonable interpretations of the immigration laws. Michel v. INS, 206 F.3d 253, 262 (2d Cir.2000).

While petitioner asserted throughout proceedings before the IJ and BIA that he was a Chinese national, the IJ made no specific finding as to his nationality, and apparently assumed without discussion either that he lacked any nationality, or that he was an Indian national. The determination of an alien's nationality or lack thereof is a threshold inquiry in determining the alien's eligibility for asylum. This is because an alien is eligible for asylum if he is a "refugee" within the meaning of 8 U.S.C. § 1101(a)(42). See Qiu v. Ashcroft, 329 F.3d 140, 148 (2d Cir.2003). "Refugee" is defined as including

any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or...