         11-115-ag
         Samdup v. Holder
                                                                                       BIA
                                                                                Bukszpan, IJ
                                                                               A098 478 472
                             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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 27th day of January, two thousand twelve.
 5
 6       PRESENT:
 7                PIERRE N. LEVAL,
 8                JOSÉ A. CABRANES,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _____________________________________
12
13       MIGMAR SAMDUP,
14                Petitioner,
15
16                          v.                                  11-115-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Migmar Samdup, pro se, Brooklyn, New
24                                     York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Leslie McKay, Assistant
28                                     Director; Ilissa M. Gould, Trial
29                                     Attorney, Office of Immigration
30                                     Litigation, United States Department
31                                     of Justice, Washington, D.C.
 1       UPON DUE CONSIDERATION of this pro se petition for

 2   review of a Board of Immigration Appeals (“BIA”) decision,

 3   it is hereby ORDERED, ADJUDGED, AND DECREED, that the

 4   petition for review is DENIED.

 5       Petitioner Migmar Samdup, an alleged native and citizen

 6   of the People’s Republic of China and ethnic Tibetan, seeks

 7   review of a December 13, 2010, order of the BIA, affirming

 8   the July 24, 2008, decision of Immigration Judge (“IJ”)

 9   Joanna Miller Bukszpan, which denied his application for

10   asylum, withholding of removal, and relief under the

11   Convention Against Torture (“CAT”).     In re Migmar Samdup,

12   No. A098 478 472 (B.I.A. Dec. 13, 2010), aff’g No. A098 478

13   472 (Immig. Ct. N.Y. City July 24, 2008).     We assume the

14   parties’ familiarity with the underlying facts and

15   procedural history in this case.

16       Under the circumstances of this case, we have reviewed

17   both the BIA’s and IJ’s opinions.     Yun-Zui Guan v. Gonzales,

18   432 F.3d 391, 394 (2d Cir. 2005).     The applicable standards

19   of review are well-established.     See 8 U.S.C.

20   § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513

21   (2d Cir. 2009).

22       In finding Samdup not credible, the agency reasonably

23   relied on Forensic Examiner Elaine Wooten’s expert testimony

                                  2
 1   indicating that his Chinese birth certificate was

 2   fraudulent.   See Borovikova v. U.S. Dep’t of Justice, 435

 3   F.3d 151, 157-58 (2d Cir. 2006) (determining that because

 4   substantial evidence supported IJ’s finding that a submitted

 5   birth certificate was likely fraudulent, IJ did not err in

 6   resting adverse credibility determination on that finding);

 7   In re O-D-, 21 I. & N. Dec. 1079 (B.I.A. 1998); see also Rui

 8   Ying Lin v. Gonzales, 445 F.3d 127, 133 (2d Cir. 2006)

 9   (discussing the maxim of falsus in uno, falsus in omnibus);

10   Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (same).

11   Indeed, Samdup does not challenge the basis of the expert’s

12   opinion, that his birth certificate contained a counterfeit

13   watermark and lacked the requisite security details, but

14   instead argues that he provided a reasonable explanation for

15   how he acquired the birth certificate and for its discrepant

16   place of birth information.   However, because Samdup’s

17   purported explanations do not address the expert’s basis for

18   finding that his birth certificate is fraudulent and would

19   not be compelling to a reasonable fact-finder, the agency

20   did not err in rejecting them.    See Majidi v. Gonzales, 430

21   F.3d 77, 80-81 (2d Cir. 2005).

22



                                   3
 1       The agency also reasonably relied on Samdup’s visa,

 2   which he admittedly procured through fraud on U.S. Embassy

 3   officials, see Rui Ying Lin, 445 F.3d at 133, Siewe, 480

 4   F.3d at 170, as well as the fact that Samdup’s fraud

 5   pertained to his identity, a central element of his claim,

 6   see In re O-D-, 21 I. & N. Dec. at 1082 (“We find that the

 7   respondent’s fraud pertains to a central element of his

 8   asylum claim, i.e., his identity, perhaps the most critical

 9   of elements, and thereby significantly undermines the

10   credibility of his request for asylum.”).   Although we have

11   recognized that “[t]he presentation of fraudulent documents

12   that were created to escape persecution may actually tend to

13   support an alien’s application,” see, e.g., Siewe, 480 F.3d

14   at 170, the IJ reasonably determined that Samdup’s visa was

15   not procured to escape persecution, given that he never

16   alleged that he experienced or feared any persecution in

17   Nepal and stayed there for three years before leaving for

18   the United States.   Because the agency’s adverse credibility

19   determination is otherwise supported by substantial

20   evidence, we decline to reach Samdup’s challenge to the IJ’s

21   additional ground for finding him not credible, namely, the

22   alleged mischaracterization of his U.N. protest photo


                                   4
 1   testimony.     See Xiao Ji Chen v. U.S. Dep’t of Justice, 471

 2   F.3d 315, 339 (2d Cir. 2006) (citation omitted).

 3       Samdup’s additional arguments are without merit.     In

 4   light of the agency’s underlying credibility determination,

 5   Samdup’s failure to establish that he is a citizen of China,

 6   and the IJ’s explicit consideration of photographs of him at

 7   a demonstration, the record does not compellingly suggest

 8   that the agency ignored any evidence of his anti-Chinese

 9   activities in the United States.     See Xiao Ji Chen, 471 F.3d

10   at 337 n.17.

11       Lastly, although an asylum applicant’s “nationality, or

12   lack of nationality, is a threshold question in determining

13   his eligibility for asylum,” see Jigme Wangchuck v. DHS, 448

14   F.3d 524, 529 (2d Cir. 2006) (quotation omitted), because

15   Samdup’s application is based on his assertion that he is a

16   citizen and national of China, it is his concomitant burden

17   to establish his identity, see In re O-D-, 21 I. & N. Dec.

18   at 1082, particularly in light of the fact that he has

19   conceded his removability from the United States.

20       For the foregoing reasons, the petition for review is

21   DENIED.   As we have completed our review, any stay of

22   removal that the Court previously granted in this petition

23   is VACATED, and any pending motion for a stay of removal in
                                     5
1   this petition is DISMISSED as moot.    Any pending request for

2   oral argument in this petition is DENIED in accordance with

3   Federal Rule of Appellate Procedure 34(a)(2), and Second

4   Circuit Local Rule 34.1(b).

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




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