09-2606-ag
Diallo v. Holder
BIA
Abrams, IJ
A094 814 889
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 5 th day of October, two thousand ten.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 ROBERT D. SACK,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges. .
11 _______________________________________
12
13 MOHAMED MOUDJITABA DIALLO,
14 Petitioner,
15
16 v. 09-2606-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Ronald S. Salomon, New York, NY.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Ernesto H. Molina, Jr.,
27 Assistant Director; Gladys M.
28 Steffens Guzman, Trial Attorney,
29 Office of Immigration Litigation,
30 United States Department of Justice,
31 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED, that the petition for review
4 is DENIED.
5 Mohamed Moudjitaba Diallo, a native and citizen of
6 Guinea, seeks review of a May 19, 2009, order of the BIA,
7 affirming the July 27, 2007, decision of Immigration Judge
8 (“IJ”) Steven R. Abrams, which denied his application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Mohamed
11 Moudjitaba Diallo, No. A094 814 889 (B.I.A. May 19, 2009),
12 aff’g No. A094 814 889 (Immig. Ct. N.Y. City July 27, 2007).
13 We assume the parties’ familiarity with the underlying facts
14 and procedural history in this case.
15 Under the circumstances of this case, we review the
16 IJ’s decision as supplemented by the BIA. See Yan Chen v.
17 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
18 standards of review are well-established. 8 U.S.C.
19 § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland
20 Sec., 494 F.3d 281, 289 (2d Cir. 2007); Salimatou Bah v.
21 Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
22 Substantial evidence supports the agency’s finding that
23 Diallo failed to establish that the persecution he endured
2
1 was on account of either his political opinion or his
2 ethnicity. In order to demonstrate his eligibility for
3 asylum and withholding of removal, Diallo was required to
4 establish that the persecution suffered or feared bears a
5 nexus to his race, religion, nationality, membership in a
6 particular social group, or political opinion. 8 U.S.C.
7 §1101(a)(42). “To establish persecution ‘on account of’
8 political opinion . . ., an asylum applicant must show that
9 the persecution arises from his or her own political
10 opinion,” not merely from some “generalized political
11 motive.” Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 (2d.
12 Cir 2005).
13 While Diallo testified that he was a member of the UPR
14 political party and the Fulani ethnic group, the IJ
15 reasonably found that Diallo failed to demonstrate that the
16 police targeted him at the border either because of his
17 political party affiliation or his ethnicity. See 8 U.S.C.
18 §1101(a)(42). Diallo claimed that he and his business
19 partner were returning to Guinea from Sierra Leone with
20 $25,000 when the police told him that the money was “too
21 much.” Diallo testified that his business partner took his
22 passport along with the money and left, and that when the
3
1 police asked Diallo to turn over the money, he was arrested,
2 detained, and beaten. The IJ found that Diallo failed to
3 present any evidence that the police targeted him for any
4 reason other than “the fact that he was bringing $25,000
5 into Guinea and not reporting it or not showing it or giving
6 whatever they’re supposed to give.” Further, the IJ
7 explained that there is “nothing in the testimony or the
8 background material to indicate that . . . Fulani
9 businessmen are being targeted upon their arrival back into
10 Guinea.” Indeed, although Diallo testified that the
11 officers told him that he was being detained because Fula
12 businessmen are destroying the country, when Diallo was
13 asked on cross examination if he was targeted at the border
14 because the police thought he was involved in illegal
15 activities, he testified, “no, they just want to take my
16 money.” Furthermore, the background materials Diallo
17 submitted show only general government corruption,
18 discrimination, and imprisonment of party leaders, and
19 address labor and student demonstrations unrelated to his
20 claim. Thus, the agency reasonably found that the context
21 surrounding Diallo’s arrest indicated that it was not based
22 on any protected ground. See Beskovic v. Gonzales, 467 F.3d
23 223, 226 (2d Cir. 2006).
4
1 The IJ also found that the background evidence related
2 only to general conditions in Guinea and failed to establish
3 that Diallo “has been harmed in the past or would be singled
4 out for persecution in the future or that he belongs to a
5 group of persons for which there’s a pattern or practice of
6 persecution.” See Vumi v. Gonzales, 502 F.3d 150, 159 (2d
7 Cir. 2007) (concluding that the agency must examine the
8 political context of an asylum applicant’s home country and
9 the extent to which any mistreatment was related to the
10 applicant’s opinion or actions in determining whether he was
11 persecuted on account of his political opinion). Thus,
12 substantial evidence supports the agency’s conclusion that
13 Diallo failed to demonstrate the requisite nexus to a
14 protected ground. 8 U.S.C. § 1252(b)(4)(B); see also
15 Manzur, 494 F.3d at 289. Accordingly, the agency’s denial
16 of Diallo’s application for asylum was reasonable.
17 Because substantial evidence supports the agency’s
18 finding that Diallo failed to establish a nexus between the
19 persecution he suffered and a protected ground, he was
20 necessarily unable to meet the higher standard required to
21 succeed on a claim for withholding of removal as that claim
22 rested on the same factual predicate. See 8 C.F.R.
23 § 1208.16(b)(1)(i)(A); Paul v. Gonzales, 444 F.3d 148, 156
5
1 (2d Cir. 2006).
2 Finally, as the Government points out, Diallo waived
3 any challenge the agency’s denial of his application for CAT
4 relief in his brief to this Court. See Yueqing Zhang, 426
5 F.3d at 541 n.1, 545 n.7 (explaining that this Court will
6 decline to consider issues not sufficiently argued in the
7 briefs).
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, any stay of
10 removal that the Court previously granted in this petition
11 is VACATED, and any pending motion for a stay of removal in
12 this petition is DISMISSED as moot. Any pending request for
13 oral argument in this petition is DENIED in accordance with
14 Federal Rule of Appellate Procedure 34(a)(2), and Second
15 Circuit Local Rule 34.1(b).
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
18
19
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