    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”);



                                4
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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