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Media Alerts - Urgen v. Holder - Second Circuit
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October 2, 2014
  Urgen v. Holder - Second Circuit
Headline: Second Circuit Holds Asylum Applicant May Prove Nationality through Credibility Testimony.

Area of Law: Immigration

Issue(s) Presented: Whether an applicant for asylum can prove nationality through credibility testimony alone or must provide documentary evidence of nationality.

Brief Summary: Petitioner Urgen applied for asylum and relief under the Convention Against Torture Act, asserting that he is a stateless Tibetan born in Nepal. Finding that Urgen failed to credibly establish his nationality as a stateless Tibetan born in Nepal, an Immigration Judge ("IJ") denied asylum and ordered Urgen removed to Nepal. The Board of Immigration Appeals ("BIA") affirmed, finding that Urgen's documentary evidence failed to establish his Tibetan nationality, necessary for determining his eligibility for asylum. Neither the IJ nor the BIA made a finding as to Urgen's nationality or citizenship. The Second Circuit vacated the BIA's decision, holding that the BIA erroneously required Urgen to establish his nationality through documentary evidence. The Second Circuit remanded the matter to the BIA, instructing the agency to make an explicit determination of Urgen's country of nationality and citizenship, to determine whether he should be removed and, if so, to what country.

The full text of the opinion may be found at: ">http://www.ca2.uscourt.../de.....9/1/hilite/

Extended Summary: Petitioner Urgen applied for asylum in the United States, withholding of removal, and relief under the Convention Against Torture, asserting that he is a stateless Tibetan born in Nepal. His application for asylum asserted that Urgen was born in Nepal to Tibetan parents who fled to Nepal in the 1970s to escape persecution in China, and that neither Urgen nor his parents obtained citizenship in Nepal. The application stated that, years later, having joined the Tibetan Freedom Movement Group and paid contributions to the Tibetan government in exile, Urgen was severely beaten by Nepalese Maoists, was forced to relocate his family, and was arrested by Nepalese police for wearing anti-Chinese clothing in Nepal. The application further asserted that upon learning that Urgen did not have legal status, the police threatened to deport him to China and Urgen fled to the United States using, what he claimed was a fraudulent Nepalese passport and a United States worker's visa obtained for him by his father.

Urgen's asylum application, supported by the passport, visa, a Tibetan identity certificate, various school records, and a letter from his parents, was referred to the Immigration Court. He was placed in removal proceedings through service of a Notice to Appear that asserted that he was a native and citizen of an unknown country and was removable under the Immigration and Nationality Act ("INA") as an alien who entered the United States without a valid immigrant visa. The Immigration Judge ("IJ") ordered Urgen removed to Nepal, finding that Urgen had failed to establish that he is a stateless Tibetan born in Nepal. In so ruling, the IJ noted that aspects of his account were implausible and noted inconsistencies in Urgen's testimony about his name as compared to the name listed on his school papers. She further found that his documentary evidence did not support his identity as a stateless Tibetan, because the Tibetan certificate and letters were inadequate to establish nationality, and the passport, which could not be wholly verified as valid or fraudulent, was either valid, making him a Nepalese national or, if fraudulent, inconclusive as to his nationality.

Urgen's subsequent appeal to the Board of Immigration Appeals ("BIA") was dismissed. The BIA found that Urgen had failed to meet the threshold burden of establishing his identity and nationality, needed to obtain a determination of asylum eligibility. The BIA concluded that Urgen's documentary evidence "at best ... created a question about his name, nationality, and citizenship."

The Second Circuit agreed with the BIA that "'nationality, or lack of nationality, is a threshold question in determining eligibility for asylum, but held that an applicant can meet this threshold on credibility testimony alone. The Court stated that Urgen's country of nationality and originality was fundamental to analyzing whether he had a "well-founded fear of prosecution" and to determining where he could be removed. The Second Circuit therefore remanded the matter, instructing the BIA to review the IJ's credibility finding and to make an explicit determination with respect to Urgen's country of nationality and citizenship.

The full text of the opinion may be found at: ">http://www.ca2.uscourt.../de.....9/1/hilite/

Panel: Circuit Judges Winter, Parker, and Hall

Argument Date: 04/23/2014

Date of Issued Opinion: 10/02/2014

Docket Number: 12-809

Decided: Vacated and Remanded

Case Alert Author:
Sam Kopf

Counsel: Urgen, Pro Se, for Petitioner; Yanal H. Yousef, 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, for Respondent

Author of Opinion: Per Curiam

Circuit: 2nd Circuit

Case Alert Circuit Supervisor: Elyse Diamond Moskowitz

    Posted By: Elyse Diamond @ 10/02/2014 01:22 PM     2nd Circuit  

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