14-2101
Kahyaoglu v. Lynch
BIA
Montante, IJ
A098 220 032
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 TO 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 Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
23rd day of September, two thousand fifteen.
PRESENT:
ROBERT A. KATZMANN,
Circuit Judge,
RICHARD C. WESLEY,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_____________________________________
HALUK KAHYAOGLU,
Petitioner,
v. 14-2101
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Dennis Mulligan, New York, N.Y.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Melissa
Neiman-Kelting, Senior Litigation
Counsel; Lori B. Warlick, Trial
Attorney, Office of Immigration
Litigation, U.S. 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 Haluk Kahyaoglu, a native and citizen of Turkey,
seeks review of a May 23, 2014 decision of the BIA affirming
a July 12, 2013 decision of an Immigration Judge (“IJ”) denying
Kahyaoglu’s application for asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”). In re
Haluk Kahyaoglu, No. A098 220 032 (B.I.A. May 23, 2014), aff’g
No. A098 220 032 (Immig. Ct. Buffalo July 12, 2013). We assume
the parties’ familiarity with the underlying facts and
procedural history in this case.
Under the circumstances of this case, we review the IJ’s
decision. See Mei Chai Ye v. U.S. Dep’t of Justice, 489 F.3d
517, 523 (2d Cir. 2007). The standards of review are well
established. See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin
Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
2
To be eligible for asylum or withholding of removal, an
applicant must show that the harm he fears is on account of his
race, religion, nationality, membership in a particular social
group, or political opinion. 8 U.S.C. §§ 1101(a)(42),
1231(b)(3)(A); see also Castro v. Holder, 597 F.3d 93, 100 (2d
Cir. 2010). Before the agency, Kahyaoglu contended that he
feared persecution on account of his membership in a particular
social group of “witnesses who assisted the United States
Government in a criminal investigation and subsequent
prosecution of an international Turkish organization that
committed illegal activities in the United States.” Certified
Administrative Record (“CAR”) 268. The IJ concluded that
Kahyaoglu failed to show that he was a member of that group
because he presented no evidence that the Ozbays, against whom
he testified, were an “international organization.”
Substantial evidence supports this finding: Kahyaoglu
presented no evidence that the Ozbays’ influence extended
beyond the family and did not testify that he feared harm from,
or had been threatened by, anyone other than Ozbays.
Kahyaoglu contends that a newspaper article and a press
release from the U.S. Attorney for the Northern District of New
3
York show that the Ozbays engaged in “organized criminal
activity.” But the press release and article do not suggest
that the Ozbays were part of any criminal organization, either
in the United States or Turkey. Accordingly, the IJ reasonably
found that Kahyaoglu was not member of his proposed social
group.
Before this Court, Kahyaoglu broadens his proposed social
group to encompass all “people who have publicly testified
against Turkish nationals.” Pet’r’s Br. 24. Because this
claim was not exhausted before the agency, and the Government
raises the failure to exhaust, we do not consider it. See Lin
Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 124 (2d Cir. 2007);
cf. Paloka v. Holder, 762 F.3d 191, 198-99 (2d Cir. 2014) (a
refined social group may be considered on appeal if it is a
specific and subsidiary subclass to the broader class first
proposed).
Kahyaoglu claimed that he would be harmed on account of his
political opinion that “helping the U.S government was the right
thing to do.” CAR at 268. To establish a nexus between
potential harm and a political opinion, an applicant must “show,
through direct or circumstantial evidence, that the
4
persecutor’s motive to persecute arises from the applicant’s
political belief.” Yueqing Zhang v. Gonzales, 426 F.3d 540,
545 (2d Cir. 2005). Here, as the IJ noted, the evidence showed
that Kahyaoglu testified for his own benefit, not based on a
political belief that it was the right thing to do. Kahyaoglu
did not testify that he had been threatened on account of his
political belief, imputed or otherwise. Nor did he present any
evidence that the Ozbays imputed pro-United States or
anti-Turkey beliefs to him. Instead, he testified that the
Ozbays have threatened him and his family in revenge for his
testifying against them in their criminal trial. That harm is
based on a personal dispute – violence between families – not
a fear of being targeted on account of a protected ground. See
Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999).
Accordingly, the IJ did not err in finding that Kahyaoglu had
not shown that he feared harm on account of his political
opinion.
Kahyaoglu also claims that the Turkish government, or
Turkish nationalist groups, would single him out as a traitor
because he helped the U.S. government by testifying against
other Turkish nationals and sought asylum in the United States.
5
The agency did not err in concluding that there was no objective
evidence in the record to show that he would be singled out for
harm on this basis. See Hongsheng Leng v. Mukasey, 528 F.3d
135, 143 (2d Cir. 2008)(per curiam).
Because Kahyaoglu did not establish a well-founded fear of
persecution on account of a protected ground, he is ineligible
for asylum and withholding of removal. See 8 U.S.C.
§§ 1101(a)(42), 1231(b)(3)(A); Lecaj v. Holder, 616 F.3d 111,
119-20 (2d Cir. 2010). Furthermore, because that finding is
dispositive of his application, we do not address his arguments
regarding the timeliness of his asylum application and his
credibility. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (per
curiam).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
6