Diallo v. Holder

09-1990-ag Diallo v. Holder BIA Nelson, IJ A098 635 172 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 30 th day of March, two thousand ten. 5 6 PRESENT: 7 Ralph K. Winter, 8 José A. Cabranes, 9 Reena Raggi, 10 Circuit Judges. 11 _______________________________________ 12 13 THIERNO DIALLO, 14 Petitioner, 15 16 v. 09-1990-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 ______________________________________ 22 23 FOR PETITIONER: Thierno Diallo, pro se, Brooklyn, 24 New York. 1 2 FOR RESPONDENT: Tony West, Assistant Attorney 3 General; Emily Anne Radford, 4 Assistant Director; Jesse D. Lorenz, 5 Trial Attorney, Office of 6 Immigration Litigation, Civil 7 Division, United States Department 8 of Justice, Washington, D.C. 9 10 UPON DUE CONSIDERATION of this petition for review of a 11 Board of Immigration Appeals (“BIA”) decision, it is hereby 12 ORDERED, ADJUDGED, AND DECREED that the petition for review 13 is DENIED in part and DISMISSED in part. 14 The Petitioner, Thierno Diallo, a native and citizen of 15 Guinea, seeks review of an April 13, 2009, order of the BIA 16 affirming the August 20, 2007, decision of Immigration Judge 17 (“IJ”) Barbara A. Nelson pretermitting his application for 18 asylum, and denying his application for withholding of 19 removal and relief under the Convention Against Torture 20 (“CAT”). In re Diallo, No. A098 635 172 (B.I.A. Apr. 13, 21 2009), aff’g No. A098 635 172 (Immig. Ct. N.Y. City Aug. 20, 22 2007). We assume the parties’ familiarity with the 23 underlying facts and procedural history in this case. 24 Under the circumstances of this case, we review the 25 IJ’s decision as supplemented by the BIA. See Yan Chen v. 26 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable 27 standards of review are well-established. Corovic v. 2 1 Mukasey, 519 F.3d 90, 95 (2d Cir. 2008); Salimatou Bah v. 2 Mukasey, 529 F.3d 99, 110 (2d Cir. 2008). 3 Following Diallo’s merits hearing, the IJ pretermitted 4 his untimely application for asylum and found him not 5 credible with respect to his withholding of removal and CAT 6 claims. Diallo did not challenge these findings with any 7 specificity on appeal to the BIA, a fact the BIA noted in 8 its decision. In his brief before this Court, Diallo for 9 the first time challenges the IJ’s pretermission of his 10 untimely asylum application and several of the bases for the 11 IJ’s adverse credibility determination. We deem these 12 arguments unexhausted and will not consider them. 1 See 8 13 U.S.C. § 1252(d)(1); Lin Zhong v. U.S. Dep’t of Justice, 480 14 F.3d 104, 107 (2d Cir. 2007). Although we may properly 15 consider arguments not raised before the BIA if the BIA 16 nonetheless addressed them, see Xian Tuan Ye v. DHS, 446 1 We lack jurisdiction to consider Diallo’s unexhausted challenge to the IJ’s pretermission of his untimely asylum application, and dismiss the petition for review to that extent. See 8 U.S.C. 1252(d)(1). Although Diallo’s failure to challenge the IJ’s adverse credibility determination before the BIA implicates the mandatory (but non-jurisdictional) issue exhaustion requirement, see Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir. 2007), we decline to consider his arguments. 3 1 F.3d 289, 296-97 (2d Cir. 2006), we find that the BIA’s mere 2 reiteration of these findings was insufficient to excuse 3 Diallo’s failure to challenge them. See Steevenez v. 4 Gonzales, 476 F.3d 114, 117 (2d Cir. 2007). 5 Diallo’s failure to exhaust is fatal to his petition 6 for review. 7 For the foregoing reasons, the petition for review is 8 DENIED in part and DISMISSED in part. As we have completed 9 our review, any stay of removal that the Court previously 10 granted in this petition is VACATED, and any pending motion 11 for a stay of removal in this petition is DISMISSED as moot. 12 Any pending request for oral argument in this petition is 13 DENIED in accordance with Federal Rule of Appellate 14 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b). 15 16 17 FOR THE COURT: 18 Catherine O’Hagan Wolfe, Clerk 19 20 4