11-1804-ag
Depa v. Holder
                                                                                BIA
                                                                           Nelson, IJ
                                                                        A093 397 355
                  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.

     At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 10th day of July, two thousand twelve.

PRESENT:
         ROBERT D. SACK,
         REENA RAGGI,
         PETER W. HALL,
              Circuit Judges.
______________________________________

TASHI DEPA,
         Petitioner,

                 v.                                     11-1804-ag
                                                        NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
         Respondent.
______________________________________

FOR PETITIONER:                Jason A. Nielson, Law Offices of
                               Thomas Mungoven, New York, New York

FOR RESPONDENT:                Tony West, Assistant Attorney
                               General; Greg D. Mack, Senior
                               Litigation Counsel; Shahrzad Baghai,
                          Trial Attorney, Office of
                          Immigration Litigation, Civil
                          Division, United States Department
                          of Justice, Washington, D.C.

    UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

    Petitioner Tashi Depa, an ethnic Tibetan, seeks review

of an April 5, 2011 decision of the BIA affirming the

February 6, 2009 decision of Immigration Judge (“IJ”)

Barbara A. Nelson denying Depa’s application for asylum,

withholding of removal, and relief under the Convention

Against Torture (“CAT”).     In re Tashi Depa, No. A093 397 355

(B.I.A. Apr. 5, 2011), aff’g     No. A093 397 355 (Immig. Ct.

N.Y. City Feb. 6, 2009).    We assume the parties’ familiarity

with the underlying facts and procedural history of the

case.

    Under the circumstances of this case, we have reviewed

both the IJ’s and the BIA’s decisions “for the sake of

completeness.”     Zaman v. Mukasey, 

, 237 (2d Cir.

2008).   The applicable standards of review are well-

established.     See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

Holder, 

, 513 (2d Cir. 2009).

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    While “a ‘petitioner’s nationality, or lack of

nationality, is a threshold question in determining . . .

eligibility for asylum,’” Wangchuck v. DHS, 

,

528 (2d Cir. 2006) (quoting Dhoumo v. BIA, 

, 174

(2d Cir. 2005) (per curiam)), the IJ reasonably concluded

here that Depa is a Chinese national in light of her

statement on the record that she is a native and citizen of

Tibet.       The United States currently recognizes Tibet to be

part of China.

    The agency did not err in finding that the alleged

persecution of Depa’s parents and husband for opposing

Chinese control of Tibet did not constitute persecution of

Depa that would render her eligible for asylum.1      “As a

general principle, an asylum applicant cannot claim past

persecution based solely on harm . . . inflicted on a family

member on account of that family member's political opinion

. . . .”       Tao Jiang v. Gonzales, 

, 141 (2d Cir.

2007).       The agency reasonably concluded that Depa failed to



         1
        Depa does not challenge the agency’s finding that
  her testimony regarding a beating she allegedly suffered
  as a child in China was not credible.   Though Depa
  challenges the IJ’s finding that her testimony regarding
  harm she allegedly suffered in Nepal was not credible, we
  need not reach this argument because Depa has been
  ordered removed to China, not Nepal.
                                  3
carry her burden of showing that she “shares (or is

perceived to share) the characteristic [i.e., being a

dissident] that motivated persecutors to harm th[ose] family

member[s].”   Id.   The agency was therefore not required to

consider Depa’s allegation that she “suffered . . .

continuing hardship after the[se] incident[s]” in the form

of emotional and psychological harm.    Id.; see also Kone v.

Holder, 

, 146 (2d Cir. 2010) (noting that

“humanitarian asylum” is reserved for aliens who suffered

“particularly severe” past persecution).

    In addition, the agency did not err in concluding that

Depa failed to demonstrate a well-founded fear of future

persecution in China based on her political activities in

Nepal and the United States.   In order to establish such a

well-founded fear, “an alien must make some showing that

authorities in [her] country of nationality are either aware

of [her] activities [outside that country] or likely to

become aware of [such] activities.”    Hongsheng Leng v.

Mukasey, 

, 143 (2d Cir. 2008).    The agency

reasonably concluded that record evidence did not show that

Chinese authorities were likely to view Depa as a dissident

based on her political activities outside China.    See Jian

Xing Huang v. INS, 

, 129 (2d Cir. 2005)

                               4
(reasoning that absent “solid support” in record that fear

of future persecution was objectively reasonable, such fear

was “speculative at best”).

    Finally, because Depa’s asylum, withholding of removal,

and CAT claims share the same factual predicate, the agency

did not err in denying all three forms of relief.    See Paul

v. Gonzales, 

, 156 (2d Cir. 2006).

    For the foregoing reasons, the petition for review is

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

removal that the Court previously granted in this petition

is VACATED, and any pending motion for a stay of removal in

this petition is DISMISSED as moot.    Any pending request for

oral argument in this petition is DENIED in accordance with

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

Circuit Local Rule 34.1(b).

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




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