     15-2356
     Tsering v. Lynch
                                                                                         BIA
                                                                                Balasquide, IJ
                                                                         A087 469 141/142/143
                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                   SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1        At a stated term of the United States Court of Appeals for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   10th day of January, two thousand seventeen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            DEBRA ANN LIVINGSTON,
 9            GERARD E. LYNCH,
10                 Circuit Judges.
11   _____________________________________
12
13   DOLMA TSERING, TSERING DORJEE,
14   TENZIN CHOEDEN,
15            Petitioners,
16
17                      v.                                           15-2356
18                                                                   NAC
19   LORETTA E. LYNCH, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONERS:                    Michael Lehach, New York, NY.
25
26   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
27                                       Assistant Attorney General; Emily
28                                       Anne Radford, Assistant Director;
29                                       Craig A. Newell, Jr., Trial
30                                       Attorney, Office of Immigration
31                                       Litigation, United States
32                                       Department of Justice, Washington,
33                                       DC.
1        UPON DUE CONSIDERATION of this petition for review of a

2    Board of Immigration Appeals (“BIA”) decision, it is hereby

3    ORDERED, ADJUDGED, AND DECREED that the petition for review is

4    GRANTED.

5        Petitioners Dolma Tsering (hereinafter Tsering), Tsering

6    Dorjee, and Tenzin Choeden seek review of a July 15, 2015,

7    decision of the BIA affirming a March 11, 2013, decision of an

8    Immigration Judge (“IJ”) denying Tsering’s application for

9    asylum, withholding of removal, and relief under the Convention

10   Against Torture (“CAT”).   In re Dolma Tsering, Tsering Dorjee,

11   Tenzin Choeden, Nos. A087 469 141/142/143 (B.I.A. July 15,

12   2015), aff’g Nos. A087 469 141/142/143 (Immig. Ct. N.Y. City

13   Mar. 11, 2013).   We assume the parties’ familiarity with the

14   underlying facts and procedural history in this case.

15       Under the circumstances of this case, we have reviewed the

16   IJ’s decision as modified by the BIA, i.e., we do not consider

17   the finding that Tsering had firmly resettled in India, which

18   the BIA declined to reach.   Xue Hong Yang v. U.S. Dep’t of

19   Justice, 426 F.3d 520, 522 (2d Cir. 2005).    The applicable

20   standards of review are well established.    8 U.S.C.

21   § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66

22   (2d Cir. 2008).   In making an adverse credibility

23   determination, the agency may, “[c]onsidering the totality of

                                    2
1    the circumstances,” base a credibility finding on

2    inconsistencies in an asylum applicant’s statements and other

3    record evidence.   8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin,

4    534 F.3d at 163-64.   We grant the petition and remand because,

5    under the totality of the circumstances, the agency made errors

6    in arriving at its finding that Tsering was not credible as to

7    her claim that she is a national of China.

8        “The determination of an alien’s nationality or lack

9    thereof is a threshold inquiry in determining the alien’s

10   eligibility for asylum.   This is because an alien is eligible

11   for asylum if . . . she has a well-founded fear of persecution

12   in her country of nationality, regardless of where she was

13   living before coming to the United States, and regardless of

14   whether the government seeks to remove her to some other

15   country.”   Dhoumo v. BIA, 416 F.3d 172, 174 (2d Cir. 2005).

16       In finding Tsering not credible as to her nationality, the

17   agency reasoned that her Indian Identity Certificate listed her

18   place of birth as India and she failed to provide evidence to

19   corroborate her contradictory claim of Chinese nationality.

20       However, Tsering proffered a witness to corroborate her

21   Chinese nationality, but the IJ declined to hear the witness

22   because the Government agreed to accept as fact that Tsering

23   is originally from the Tibetan region of China.   The IJ relied

                                    3
1    chiefly on Tsering’s Indian Registration Certificate.             The

2    Government, however, had been given a copy of the certificate

3    before the Government made its concession.            Moreover,     a

4    United Nations report in the record corroborated Tsering’s

5    consistent testimony that, like many Tibetan refugees in India,

6    she   paid   for   an   Indian   Registration   Certificate   outside

7    official channels in order to obtain an Identity Certificate

8    listing her as an Indian national, which permitted her to travel

9    outside of India.       The IJ thus erred in rejecting Tsering’s

10   claim of Chinese nationality on credibility and lack of

11   corroboration grounds after he declined to hear her witness and

12   without considering reliable corroborating evidence in the

13   record.*     See 8 U.S.C. § 1229a(b)(4)(B) (“[T]he alien shall

14   have a reasonable opportunity to . . . present evidence on the

15   alien’s own behalf . . . .”).

16         Alternatively, the IJ found that, even if Tsering is a

17   national of China, she had firmly resettled in India such that

18   she was ineligible for relief from removal.         But the BIA did

19   not reach that alternative ground, so it does not stand as a

20   basis for denying Tsering relief.       See Xue Hong Yang, 426 F.3d


     * In addition to the UN report, the record includes Tsering’s son’s
     U.S. birth certificate, which corroborates Tsering’s nationality
     claim and contradicts the IJ’s finding that Tsering “has repeatedly
     held herself out to be a native of India, and only in her asylum claim
     does she suggest otherwise.” C.A.R. 102.
                                        4
1    at 522; Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 122

2    (2d Cir. 2007).

3        Because Tsering’s nationality was a threshold

4    determination for asylum, the agency’s errors in deciding that

5    issue require remand.   See Dhoumo, 416 F.3d at 175 (“If

6    petitioner was a Chinese national, then the appropriate inquiry

7    for the IJ would have been, primarily, not one into past

8    occurrences in India, but into whether petitioner had a

9    well-founded fear of persecution in China.”).

10       For the foregoing reasons, the petition for review is

11   GRANTED and the case is REMANDED for further proceedings

12   consistent with this order.

13                                 FOR THE COURT:
14                                 Catherine O’Hagan Wolfe, Clerk




                                    5
