         12-3420
         Dhargyal v. Lynch
                                                                                       BIA
                                                                                  Wright, IJ
                                                                               A089 225 151
                              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 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
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 1st day of February, two thousand sixteen.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                ROSEMARY S. POOLER,
 9                SUSAN L. CARNEY,
10                     Circuit Judges.
11       _____________________________________
12
13       SONAM DHARGYAL,
14                Petitioner,
15
16                           v.                                 12-3420
17                                                              NAC
18       LORETTA E.LYNCH1, UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Sonam Dhargyal, Pro Se, Woodside,
24                                     NY.
25
26


                      1
                   Loretta E. Lynch is automatically substituted as
             the respondent in this case pursuant to Federal Rule of
             Appellate Procedure 43(c)(2).
 1   FOR RESPONDENT:         Stuart F. Delery, Acting Assistant
 2                           Attorney General; Cindy S. Ferrier,
 3                           Assistant Director; Sunah Lee, Trial
 4                           Attorney, Office of Immigration
 5                           Litigation, United States Department
 6                           of Justice, Washington, D.C.
 7
 8       UPON DUE CONSIDERATION of this petition for review of a

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

10   ORDERED, ADJUDGED, AND DECREED that the petition for review

11   is GRANTED.

12       Petitioner Sonam Dhargyal, a native and citizen of an

13   unknown country, seeks review of a July 25, 2012, order of

14   the BIA, affirming the March 1, 2011, decision of an

15   Immigration Judge (“IJ”), which denied his application for

16   asylum, withholding of removal, and relief under the

17   Convention Against Torture (“CAT”).   In re Sonam Dhargyal,

18   No. A089 225 151 (B.I.A. July 25, 2012), aff’g No. A089 225

19   151 (Immig. Ct. New York City Mar. 1, 2011).   We assume the

20   parties’ familiarity with the underlying facts and

21   procedural history in this case.

22       We review the IJ’s decision as modified by the BIA,

23   i.e., minus the arguments for denying relief that were

24   rejected or not explicitly relied on by the BIA.     See Xue

25   Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d

26   Cir. 2005).   The applicable standards of review are

                                   2
 1   well-established.    See 8 U.S.C. § 1252(b)(4)(B); see also

 2   Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

 3       By predicating the denial of relief solely upon the

 4   insufficiency of Dhargyal’s identity-related documentary

 5   evidence, without regard to his testimony or the IJ’s

 6   related credibility determination, the BIA erroneously

 7   deprived Dhargyal of the “potential benefit” of succeeding

 8   on credible testimony alone.    See Diallo v. I.N.S., 232 F.3d

 9   279, 287 (2d Cir. 2000); 8 U.S.C. § 1158(b)(1)(B)(ii).

10   While an applicant’s “nationality, or lack of nationality,

11   is a threshold question in determining his eligibility for

12   asylum,” Dhoumo v. BIA, 416 F.3d 172, 174 (2d Cir. 2005), an

13   applicant may nevertheless demonstrate asylum eligibility

14   through credible testimony alone.    See Diallo, 232 F.3d at

15   287; 8 U.S.C. § 1158(b)(1)(B)(ii).   Indeed, the BIA

16   identified no authority in support of its implicit finding

17   that an alien must meet his burden for asylum by

18   demonstrating his nationality and citizenship through

19   documentary evidence.   We therefore grant the petition for

20   review and remand to the BIA for consideration of Dhargyal’s

21   testimony and the IJ’s related credibility determination.

22   See Urgen v. Holder, 768 F.3d 269 (2d Cir. 2014) (granting

23   similar petition).

                                    3
 1       We additionally note that, unlike eligibility for

 2   asylum, which is dependent upon an applicant demonstrating a

 3   well-founded fear of persecution in their country of

 4   “‘nationality,’” Wangchuck v. Dep’t of Homeland Security,

 5   448 F.3d 524, 528-29 (2d Cir. 2006) (quoting 8 U.S.C.

 6   § 1101(a)(42)), withholding of removal and CAT relief are

 7   “available as to . . . the proposed country of removal,” cf.

 8   Dhoumo, 416 F.3d at 175 (discussing withholding of removal);

 9   see 8 C.F.R. § 1208.16(c)(3) (predicating eligibility for

10   CAT relief on an finding that “it is more likely than not

11   that [the applicant] would be tortured if removed to the

12   proposed country of removal.” (emphasis added)).   Here, the

13   IJ found that Dhargyal credibly established his Tibetan

14   ethnicity, and we have held that an applicant may establish

15   eligibility for withholding and CAT relief on the basis of

16   objective evidence even though an applicant’s claims of past

17   mistreatment were found not credible.   See Paul v. Gonzales,

18   444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v. U.S.

19   Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).

20       Thus, to the extent that the IJ’s finding of Dhargyal’s

21   Tibetan ethnicity is affirmed on remand, and China remains

22   designated as a country of removal, the BIA must consider


                                  4
1   his eligibility for withholding and CAT relief as to China

2   irrespective of whether Dhargyal can establish Chinese

3   citizenship.   See Paul, 444 F.3d at 156.

4       For the foregoing reasons, the petition for review is

5   GRANTED and the case is REMANDED to the BIA for further

6   proceedings consistent with this order.

7                               FOR THE COURT:
8                               Catherine O’Hagan Wolfe, Clerk
9




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