09-0734-ag
Varga v. Holder
BIA
Nelson, IJ
A098 594 313
A098 594 309
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 February, two thousand ten.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 BARRINGTON D. PARKER,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11
12 ______________________________________
13
14 ALEXANDRU VARGA, LILIANA CALIN,
15 Petitioners,
16
17 v. 09-0734-ag
18 NAC
19 ERIC H. HOLDER JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONERS: Zamir Iosepovici, New York, New
25 York.
26 F O R RESPONDENTS: Tony West, Assistant Attorney
27 General, Lyle D. Jentzer, Senior
28 Litigation Counsel, Zoe J. Heller,
29 Office of Immigration Litigation,
30 United States Department of Justice,
31 Washington, D.C.
32
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.
5 Alexandru Varga and Liliana Calin, natives and citizens
6 of Romania, seek review of a January 30, 2009 order of the
7 BIA affirming the May 18, 2007 decision of Immigration Judge
8 (“IJ”) Barbara A. Nelson denying their application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Alexandru Varga,
11 Liliana Calin, Nos. A098 594 313/309 (BIA Jan. 30, 2009),
12 aff’g Nos. A098 594 313/309 (Immig. Ct. N.Y. City May 18,
13 2007). We assume the parties’ familiarity with the
14 underlying facts and procedural history of the case.
15 As an initial matter, because Petitioners failed to
16 challenge the agency’s denial of their claims for
17 withholding of removal and CAT relief, we deem those claims
18 abandoned. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541
19 n.1, 545 n.7 (2d Cir. 2005).
20 When the BIA does not expressly “adopt” the IJ’s
21 decision, but its brief opinion closely tracks the IJ’s
22 reasoning, the Court may consider both the IJ’s and the
23 BIA’s opinions “for the sake of completeness.” Zaman v.
2
1 Mukasey, 514 F.3d 233, 237 (2d Cir. 2008). We review the
2 agency’s findings of fact under the substantial evidence
3 standard. 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S.
4 Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007).
5 Questions of law and the application of law to undisputed
6 fact are reviewed de novo. See Salimatou Bah v. Mukasey,
7 529 F.3d 99, 110 (2d Cir. 2008).
8 As amended by the REAL ID Act, Title 8, Section
9 1158(b)(1)(B)(i) of the U.S. Code provides that an asylum
10 “applicant must establish that race, religion, nationality,
11 membership in a particular social group, or political
12 opinion was or will be at least one central reason for
13 persecuting the applicant.” We find no error in the
14 agency’s conclusion that Petitioners’ asylum claim lacked a
15 sufficient nexus to a protected ground. While Varga claimed
16 that he was arrested and jailed without a trial, he never
17 claimed that his arrest was on account of his Romani
18 ethnicity. Rather, he testified that he did not know why he
19 was arrested, and there was evidence in the record
20 indicating that he had been charged with fraud. See Saleh
21 v. U.S. Dept. of Justice, 962 F.2d 234, 239 (2d Cir. 1992)
22 (finding that punishment for violation of a generally
23 applicable criminal law is not persecution). Varga never
3
1 alleged that his prosecution for fraud was a pretext for
2 persecution on account of his ethnicity. See Vumi v.
3 Gonzales, 502 F.3d 150 (2d Cir. 2007). Moreover, the IJ
4 noted that the background evidence indicated that “while
5 there is some corruption within the judiciary in Romania,
6 there [was] no evidence to demonstrate that citizens are
7 convicted without trials and sentenced without trial or due
8 process.”
9 Petitioners also argue that the IJ erred in denying
10 relief since Calin had testified that she was raped twice by
11 Romanian police. However, like Varga, Calin did not assert
12 that she was raped on account of her Romani ethnicity. See
13 Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999)
14 Moreover, while Petitioners provided various background
15 reports regarding the treatment of Romani in Romania, they
16 failed to point to any evidence that police target and rape
17 Romani women.
18 Finally, while the agency observed that “discrimination
19 does exist against the Roma, or Gypsies, in Romania, there
20 [was] not sufficient evidence to show that this
21 discrimination [was] so severe or pervasive that it would
22 amount to persecution.” See Jian Xing Huang v. INS, 421
4
1 F.3d 125, 129 (2d Cir. 2005) (holding that, absent solid
2 support in the record for the petitioner’s assertion that he
3 would be subjected to persecution, his fear was “speculative
4 at best”).
5 While Petitioners’ arguments offer no basis on which we
6 are “compelled” to find – contrary to the agency – that
7 persecution on account of Romani ancestry was or will be a
8 “central” motive. See 8 U.S.C. §§ 1158(b)(1)(B)(i),
9 1252(b)(4)(B); cf. Osorio v. INS, 18 F.3d 1017, 1029 (2d
10 Cir. 1994). In light of the foregoing, the agency’s denial
11 of Petitioners’ asylum claims was proper. See 8 U.S.C.
12 § 1158(b)(1)(B)(i).
13 For the foregoing reasons, the petition for review is
14 DENIED. As we have completed our review, the pending motion
15 for a stay of removal in this petition is DISMISSED as moot.
16
17
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
20
21
5