Okombi v. Holder

08-4123-ag Okombi v. Holder BIA Abrams IJ A 097 976 840 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 28 th day of January, two thousand ten. 5 6 PRESENT: 7 DENNIS JACOBS, 8 Chief Judge, 9 ROGER J. MINER, 10 GERARD E. LYNCH, 11 Circuit Judges. 12 ______________________________________ 13 14 ELISABETH OKOMBI, 15 Petitioner, 16 17 v. 08-4123-ag 18 NAC 19 ERIC H. HOLDER, JR., UNITED STATES 20 ATTORNEY GENERAL, * 21 Respondent. 22 ______________________________________ * Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Eric H. Holder, Jr., is automatically substituted for former Attorney General Michael B. Mukasey as respondent in this case. 1 FOR PETITIONER: Pro se. 2 3 FOR RESPONDENT: Tony West, Assistant Attorney 4 General; Terri J. Scadron, Assistant 5 Director; Kristina R. Sracic, Trial 6 Attorney, Office of Immigration 7 Litigation, 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. 14 Petitioner Elisabeth Okombi, a native and citizen of 15 the Democratic Republic of the Congo, seeks review of a July 16 23, 2008 order of the BIA affirming the October 16, 2006 17 decision of Immigration Judge (“IJ”) Steven R. Abrams 18 denying her application for asylum, withholding of removal, 19 and relief under the Convention Against Torture (“CAT”). In 20 re Elisabeth Okombi, No. A 097 976 840 (B.I.A. July 23, 21 2008), aff’g No. A 097 976 840 (Immig. Ct. N.Y. City Oct. 22 16, 2006). 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 decision of the IJ as supplemented by the BIA. See Yan Chen 26 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The 27 applicable standards of review are well-established. See 2 1 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 2 510, 513 (2d Cir. 2009). 3 As a preliminary matter, we are without jurisdiction to 4 consider Okombi’s challenge to the agency’s determination 5 that her application for asylum was time-barred. 8 U.S.C. 6 § 1158(a)(3) (“No Court shall have jurisdiction to review 7 any determination of the Attorney General under paragraph 8 (2).”); see also Li Hua Lin v. U.S. Dep’t of Justice, 453 9 F.3d 99, 104 (2d Cir. 2006). While we retain jurisdiction 10 to consider “constitutional claims or questions of law,” 11 see 8 U.S.C. § 1252(a)(2)(D), Okombi’s brief raises no such 12 claims. 13 Substantial evidence supports the agency’s denial of 14 Okombi’s claim for withholding of removal. The IJ found 15 that, even assuming she suffered past persecution, she did 16 not have an objectively reasonable fear of future 17 persecution because the civil war in Congo is over and the 18 group that allegedly persecuted her, the Cobras, no longer 19 exists. The IJ also found that the current Congolese 20 government gained power “through a democratic process of 21 being elected,” and found “nothing indicating here that they 22 would be attacking her ethnic group or attacking [her] 23 political organization.” Even construing her pro se brief 24 broadly, Okombi does not challenge any of these findings. 3 1 She asserts only that she should have been granted 2 withholding of removal because of past persecution. 3 Accordingly, we have no basis upon which to disturb the 4 agency’s burden of proof finding, and need not reach its 5 credibility determination. Okombi also does not challenge 6 the agency’s denial of her application for CAT relief. 7 Finally, Okombi argues that: (1) she was denied a fair 8 hearing due to repeated translation problems; and (2) the IJ 9 erred in denying her motion for a continuance so that she 10 could be examined by a doctor. However, we decline to 11 consider these unexhausted arguments. See Lin Zhong v. U.S. 12 Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir. 2007). 13 For the foregoing reasons, the petition for review is 14 DENIED. As we have completed our review, any stay of 15 removal that the Court previously granted in this petition 16 is VACATED, and any pending motion for a stay of removal in 17 this petition is DISMISSED as moot. Any pending request for 18 oral argument in this petition is DENIED in accordance with 19 Federal Rule of Appellate Procedure 34(a)(2), and Second 20 Circuit Local Rule 34(b). 21 FOR THE COURT: 22 Catherine O’Hagan Wolfe, Clerk 23 24 25 4