10-739-ag
Arifi v. Holder
BIA
Gordon-Uruakpa, IJ
A088 378 173
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 5th day of November, two thousand ten.
5
6 PRESENT:
7 ROGER J. MINER,
8 JOSÉ A. CABRANES,
9 DENNY CHIN,
10 Circuit Judges.
11 _______________________________________
12
13 AGRON ARIFI,
14 Petitioner,
15
16 v. 10-739-ag
17 NAC
18 ERIC H. HOLDER, JR., U.S. ATTORNEY
19 GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Charles Christophe, Christophe &
24 Associates, P.C., New York, New
25 York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Christopher C. Fuller,
29 Senior Litigation Counsel; Zoe J.
30 Heller, Trial Attorney, Office of
31 Immigration Litigation, Civil
32 Division, United States Department
33 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
4 review is DENIED in part and DISMISSED in part.
5 Agron Arifi, a native and citizen of Serbia, seeks
6 review of a February 4, 2010, order of the BIA, affirming
7 the May 12, 2008, decision of Immigration Judge (“IJ”)
8 Vivienne E. Gordon-Uruakpa, denying his application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Arifi, No. A088
11 378 173 (B.I.A. Feb. 4, 2010), aff’g No. A088 378 173
12 (Immig. Ct. N.Y. City May 12, 2008). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 of the case.
15 Under the circumstances of this case, where the BIA
16 adopts and affirms the IJ's decision, we review the IJ’s
17 decision. See Mei Chai Ye v. U.S. Dep’t of Justice, 489
18 F.3d 517, 523 (2d Cir. 2007). The applicable standards of
19 review are well-established. See 8 U.S.C. § 1252(b)(4)(B)
20 (2006); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.
21 2009).
22 As an initial matter, we are without jurisdiction to
23 consider Arifi’s unexhausted challenge to the IJ’s denial of
24 his CAT claim, and we must dismiss the petition for review
2
1 to that extent. See 8 U.S.C. § 1252(d)(1) (2206). We
2 therefore review only Arifi’s challenge to the IJ’s denial
3 of asylum and withholding of removal.
4 The IJ reasonably found that Arifi failed to
5 demonstrate that any harm he suffered or feared was on
6 account of a protected ground. An applicant seeking asylum
7 and withholding of removal must establish that his past
8 persecution or fear of future persecution is on account of
9 his race, religion, nationality, political opinion, or
10 membership in a particular social group. See 8 U.S.C.
11 § 1101(a)(42) (2006); 8 C.F.R. § 1208.16(b)(1) (2010); see
12 also Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 (2d Cir.
13 2005) (holding that the “applicant must [] show, through
14 direct or circumstantial evidence, that the persecutor’s
15 motive to persecute arises from the applicant’s political
16 belief [or other protected ground]”). As the IJ noted,
17 Arifi failed to establish that the individuals threatening
18 Arifi targeted him on account of his Catholic religion.
19 Arifi’s testimony connecting the threats to his religion
20 provided only that the threats started after he began
21 driving his sister, a nun, to church. Arifi testified that
22 he did not know why the threats were being made or who was
23 making them. Given the absence of any “solid support” for
3
1 his claim, the IJ did not err in finding that Arifi failed
2 to meet his burden of demonstrating that any harm he
3 suffered bore a nexus to a protected ground. See Jian Xing
4 Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (per curiam)
5 (holding that, absent solid support in the record, a
6 petitioner’s fear was “speculative at best”); see also
7 8 U.S.C. § 1252(b)(4)(B).
8 Moreover, it was not improper for the agency to
9 consider Arifi’s claim of a well-founded fear of persecution
10 to be diminished because he testified that several members
11 of his family, who also were Catholic, continued to live in
12 Serbia without incurring any harassment or mistreatment.
13 See Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir.
14 1999) (finding that where asylum applicant’s mother and
15 daughters continued to live in petitioner’s native country,
16 her well-founded fear claim was diminished). Accordingly,
17 because the BIA reasonably found that Arifi failed to
18 establish that any harm he suffered or feared bore a nexus
19 to a protected ground, it properly denied both asylum and
20 withholding of removal. See Paul v. Gonzales, 444 F.3d 148,
21 156 (2d Cir. 2006).
4
1 For the foregoing reasons, the petition for review is
2 DENIED in part and DISMISSED in part. As we have completed
3 our review, any stay of removal that the Court previously
4 granted in this petition is VACATED, and any pending motion
5 for a stay of removal in this petition is DISMISSED as moot.
6 Any pending request for oral argument in this petition is
7 DENIED in accordance with Federal Rule of Appellate
8 Procedure 34(a)(2) and Second Circuit Local Rule 34.1(b).
9
10 FOR THE COURT:
11 Catherine O’Hagan Wolfe, Clerk
12
13
14
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