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Urgen v. Holder

United States Court of Appeals, Second Circuit

October 2, 2014

URGEN, AKA SHERPA URGEN, AKA URGUYEN, Petitioner,
v.
ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL, Respondent

Submitted April 23, 2014

Petition for review from the February 8, 2012 decision of the Board of Immigration Appeals, affirming the denial of Petitioner's application for asylum, withholding of removal, and relief under the Convention Against Torture. On appeal, Petitioner contends that his testimony and evidence were sufficient to establish that he is a stateless Tibetan born in Nepal. Because the Board of Immigration Appeals erroneously required Petitioner to prove his nationality through documentary evidence alone, we VACATE and REMAND the Board of Immigration Appeals decision with instructions to review the Immigration Judge's credibility finding. On remand, the agency is also instructed to make an explicit finding with respect to Petitioner's country of nationality and citizenship for purposes of (1) establishing the country with respect to which the agency is conducting its asylum inquiry and (2) ensuring compliance with the mandatory, consecutive removal commands of 8 U.S.C. § 1231(b)(2) .

URGEN, Pro se, Woodside, NY, for Petitioner.

YANAL H. YOUSEF, Trial Attorney, Office of Immigration Litigation, Civil Division (Stuart F. Delery, Principal Deputy Assistant Attorney General, Jamie M. Dowd, Senior Litigation Counsel, on the brief), United States Department of Justice, Washington, DC, for Respondent.

Before: WINTER, PARKER, and HALL, Circuit Judges.

OPINION

Page 270

Per Curiam:

Petitioner Urgen, who asserts he is a stateless Tibetan born in Nepal, seeks review of a February 8, 2012 decision of the Board of Immigration Appeals (" BIA" ), affirming an Immigration Judge's (" IJ" ) June 8, 2010 denial of asylum, withholding

Page 271

of removal, and relief under the Convention Against Torture (" CAT" ). The IJ found that Urgen failed to establish credibly that he is a stateless Tibetan born in Nepal and ordered him removed to Nepal. The BIA did not rely on the IJ's credibility determination, or otherwise consider Urgen's testimony, and affirmed the denial of relief because Urgen's documentary evidence failed to establish his Tibetan nationality. Neither the IJ nor the BIA resolved the question of Petitioner's country of nationality or citizenship. Because the BIA erroneously required Petitioner to establish his nationality through documentary evidence alone, we VACATE and REMAND the BIA's decision with instructions to review the IJ's credibility finding. On remand, the agency is also instructed to make an explicit finding with respect to Petitioner's country of nationality and citizenship for purposes of (1) establishing the country with respect to which the agency is conducting its asylum inquiry and (2) ensuring compliance with the mandatory, consecutive removal commands of 8 U.S.C. § 1231(b)(2).

BACKGROUND

Petitioner Urgen entered the United States on a temporary worker visa and Nepal passport in 2006. He filed a timely, affirmative application for asylum, withholding of removal, and CAT relief based on his status as a stateless Tibetan born in Nepal. Urgen's application provided the following. He was born in Solukhumbhu, Nepal to Tibetan parents who fled to Nepal in the 1970s to escape persecution by China. Neither Urgen nor his parents attained citizenship or any other legal status in Nepal. In 2004, Urgen joined the Tibetan Freedom Movement Group and paid contributions to the Tibetan government in exile. Nepalese Maoists severely beat Urgen for resisting their recruitment and extortion attempts, and Urgen was forced to relocate with his family to Kathmandu. In 2006, Nepalese police arrested Urgen on his way home from a Tibetan independence rally. He was wearing a " Free Tibet" t-shirt, and the officers informed him that it was illegal to wear anti-Chinese clothing in Nepal due to pressure from the Chinese government. When the officers learned that Urgen did not have legal status, they threatened to deport him to China if his parents did not pay a bribe; his parents paid the bribe. Urgen then fled to the United States using a fraudulent Nepal passport and U.S. visa that his father had obtained for him. Urgen supported his application with, inter alia, his Nepal passport, U.S. visa, Green Book (Tibetan Identity Certificate), school records, and a letter from his parents. The government submitted Urgen's passport and visa to the U.S. Department of State's Forensic Document Laboratory for testing. The Forensic Document Laboratory could not conclusively authenticate Urgen's passport, but noted that its security features and quality were consistent with other Nepal passports on file and that it bore no evidence of page or photograph substitution. The Forensic Document Laboratory confirmed that Urgen's U.S. visa was genuine. Urgen's application was subsequently referred to the Immigration Court. He was placed in removal proceedings through service of a Notice to Appear. The Notice to Appear asserted that Urgen was a native and citizen of an unknown country and charged him with removability under the Immigration and Nationality Act (" INA" ) § 237(a)(1)(A), as an alien who entered the United States without a valid immigrant visa. Urgen later appeared before an IJ, conceded his removability, and declined to designate a country of removal. The government designated Nepal.

At the conclusion of a 2010 merits hearing, the IJ denied all ...


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