Anu Parajuli, Petitioner, v. NAC Bureau of Citizenship and Immigration Services, Respondent., (2nd Cir. 2005)

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UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER

AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY

OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY

OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR

IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the

Thurgood Marshall United States Courthouse, Foley Square, in the City of New York, on the 16th

day of December, Two thousand and five.

PRESENT:

HON. JOHN M. WALKER, JR.,

Chief Judge,

HON. GUIDO CALABRESI,

HON. ROSEMARY S. POOLER,

Circuit Judges.

Anu Parajuli,

Petitioner,

-v.- No. 03-4813-ag

NAC

Bureau of Citizenship and Immigration Services,

Respondent.

FOR PETITIONER: Theodore N. Cox, New York, New York.

FOR RESPONDENT: Maxwell Wood, United States Attorney for the Middle

District of Georgia; Paul C. McCommon III, Assistant

United States Attorney, Macon, Georgia.

UPON DUE CONSIDERATION of this petition for review of the Board of Immigration

Appeals ("BIA") decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the

petition is GRANTED, the decision of the BIA is VACATED, and the case is REMANDED for

further proceedings consistent with this decision.

Ana Parajuli, through counsel, petitions for review of the BIA decision affirming the

Immigration Judge's ("IJ") denial of her application for asylum and withholding of removal. We assume the parties' familiarity with the underlying facts and procedural history of this case.

This Court reviews the agency's factual findings, including adverse credibility determinations, under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); Secaida Rosales v. INS, 331 F.3d 297, 306-07 (2d Cir. 2003).

This Court has held that it is error not to address the issue of an applicant's nationality before denying an application for asylum and withholding of removal. See Dhoumo v. BIA, 416 F.3d 172, 175 (2d Cir. 2005). Here, Parajuli presented evidence that China confers nationality on Tibetan refugees and their descendants who reside outside of China. Parajuli also presented substantial argument supporting her nationality to both the IJ and the BIA. Their failure to make a finding as to her nationality was error requiring remand.

For the foregoing reasons, the petition is GRANTED, the BIA's March 2003 decision is VACATED, and the case is REMANDED for further proceedings consistent with this decision.

Having 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 DENIED 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(d)(1).

For the Court: Roseann B. MacKechnie, Clerk By:

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