09-2956-ag
Haidara v. Holder
BIA
Morace, IJ
A095 571 761
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 22 nd day of July, two thousand ten.
PRESENT:
GUIDO CALABRESI,
ROBERT A. KATZMANN,
REENA RAGGI,
Circuit Judges.
_______________________________________
SEYDOU HAIDARA,
Petitioner,
v. 09-2956-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Ronald S. Salomon, New York, N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Susan K. Houser, Senior
Litigation Counsel; W. Daniel Shieh,
Trial Attorney, Office of
Immigration Litigation, 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.
Seydou Haidara, a native and citizen of Sierra Leone,
seeks review of a June 11, 2009, order of the BIA affirming
the November 13, 2007, decision of Immigration Judge (“IJ”)
Phillip Morace, which denied his application for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Seydou Haidara, No. A095 571
761 (B.I.A. June 11, 2009), aff’g No. A095 571 761 (Immig.
Ct. N.Y. City Nov. 13, 2007). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
Under the circumstances of this case, where the BIA
adopted the decision of the IJ and merely supplemented it,
we review the IJ’s decision as supplemented by the BIA’s
decision. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
Cir. 2005). We review an IJ’s factual findings, including
adverse credibility determinations, under the substantial
evidence standard. See 8 U.S.C. § 1252(b)(4)(B); see also
Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). We
2
review de novo questions of law and the BIA’s application of
law to undisputed facts. Yanquin Weng, 562 F.3d at 513.
Petitioners must raise to the BIA the specific issues
they later raise in this Court. See Foster v. INS, 376 F.3d
75, 78 (2d Cir. 2004). While not jurisdictional, this
judicially-imposed exhaustion requirement is mandatory. Lin
Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d
Cir. 2007). Here, Haidara failed to challenge the IJ’s
dispositive adverse credibility determination on appeal to
the BIA, and the Government has raised his failure to
exhaust in its brief to this Court. Accordingly, we decline
to consider this dispositive finding. 1 See id. at 124
(describing the issue exhaustion requirement as an
“affirmative defense subject to waiver.”).
1
We note that Haidara was represented by the same
attorney before the BIA as well as this Court. We are
not in a position to determine here whether Haidara would
succeed on a claim for ineffective assistance of counsel
given the extremely stringent procedural requirements of
In re Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988); see
also In re Compean, 25 I. & N. Dec. 1 (A.G. 2009)(Lozada
controls until such time, if any, as the Department of
Justice establishes a superseding framework for review).
But it appears to us, at minimum, that counsel fell short
of his responsibilities to his client by failing to raise
Haidara’s claims before the BIA, resulting in Haidara’s
failure to exhaust these claims and foreclosing our
review. We therefore instruct counsel specifically to
call our concerns to Haidara’s personal attention so that
he is able to assess what further action he might pursue.
3
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
4