11-96-ag
Diallo v. Holder
BIA
Pazar, IJ
A 096 257 577
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 1 st day of December, two thousand eleven.
5
6 PRESENT:
7 JON O. NEWMAN,
8 ROBERT A. KATZMANN,
9 DENNY CHIN,
10 Circuit Judges.
11 _______________________________________
12
13 MAMADOU MOUSTAPHA DIALLO,
14 Petitioner,
15
16 v. 11-96-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23
24 FOR PETITIONER: Theodore Vialet, New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Russell J.E. Verby, Senior
28 Litigation Counsel; Katharine E.
29 Clark, Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
33
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Mamadou Moustapha Diallo, a native and
6 citizen of Guinea, seeks review of a December 16, 2010,
7 decision of the BIA affirming the June 29, 2006, decision of
8 Immigration Judge (“IJ”) Charles E. Pazar, denying his
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”).1 In re
11 Mamadou Moustapha Diallo, No. A096 257 577 (B.I.A. Dec. 16,
12 2010), aff’g No. A096 257 577 (Immig. Ct. Memphis Jun. 29,
13 2006). We assume the parties’ familiarity with the
14 underlying facts and procedural history in this case.
15 Diallo failed to exhaust before the BIA any specific
16 challenges to the IJ’s adverse credibility determination.
17 In addition to the statutory requirement that petitioners
18 exhaust each category of relief, see 8 U.S.C. § 1252(d)(1),
19 we generally will not consider arguments regarding
20 individual issues that were not exhausted before the BIA.
1
Although an IJ in Memphis ruled on Diallo’s asylum,
withholding of removal, and CAT claims, because Diallo’s
proceedings concluded in the New York immigration court, venue is
proper in this Circuit. 8 U.S.C. § 1252(b)(2).
2
1 See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 107
2 n.1, 122-23 (2d Cir. 2007). In his brief to this Court,
3 Diallo takes issue, for the first time, with certain of the
4 IJ’s specific credibility findings. Because excusing
5 Diallo’s failure to exhaust would not serve the purposes of
6 the exhaustion requirement, i.e., to allow the agency to
7 correct its own errors and to develop a full evidentiary
8 record, see United States v. Copeland, 376 F.3d 61, 67 (2d
9 Cir. 2004), and because the BIA did not have the benefit of
10 any arguments challenging the findings underlying the IJ’s
11 credibility determination, we decline to review Diallo’s
12 challenges to the IJ’s adverse credibility determination,
13 see Lin Zhong, 480 F.3d at 122-23 (reaffirming that this
14 Court “may consider only those issues that formed the basis
15 for [the BIA’s] decision”). Diallo’s failure to exhaust is
16 fatal to his petition for review as the IJ’s adverse
17 credibility finding was a dispositive basis for denying him
18 asylum, withholding of removal, and CAT relief. See Paul v.
19 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). We deny the
20 petition for review on this basis and decline to reach his
21 challenges to the IJ’s nexus determination.
22 We note that even if we were to reach the IJ’s adverse
23 credibility determination, it was supported by substantial
3
1 evidence given inconsistencies in the record surrounding the
2 date Diallo received a summons (the event that purportedly
3 triggered his departure from Guinea), and his account of
4 whether or not security forces told him that they found arms
5 in his home, see, e.g., Tu Lin v. Gonzales, 446 F.3d 395,
6 402-03 (2d Cir. 2006), as well as his failure to corroborate
7 his claim with evidence of his summons, the destruction of
8 his home, or his injuries, see Biao Yang v. Gonzales, 496
9 F.3d 268, 273 (2d Cir. 2007).
10 For the foregoing reasons, the petition for review is
11 DENIED. As we have completed our review, any stay of
12 removal that the Court previously granted in this petition
13 is VACATED, and any pending motion for a stay of removal in
14 this petition is DENIED as moot. Any pending request for
15 oral argument in this petition is DENIED in accordance with
16 Federal Rule of Appellate Procedure 34(a)(2), and Second
17 Circuit Local Rule 34.1(b).
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
20
21
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