Niazov v. Holder ( 2010 )

09-4304-ag
Niazov v. Holder
BIA
Lamb, IJ
A097 227 588
A097 227 590
A096 497 100
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 24 th day of September, two thousand ten.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 GUIDO CALABRESI,
10 DEBRA ANN LIVINGSTON,
11 Circuit Judges.
12 ______________________________________
13
14 MICHAEL NIAZOV, OLGA NIAZOV, YOSEF
15 NIAZOV,
16 Petitioners,
17
18 09-4304-ag
19 v. NAC
20
21
22 ERIC H. HOLDER, JR., UNITED STATES
23 ATTORNEY GENERAL,
24 Respondent.
25 ______________________________________
26
27 FOR PETITIONERS: H. Raymond Fasano, New York, New
28 York.
29
30 FOR RESPONDENT: Tony West, Assistant Attorney
31 General, Civil Division; Douglas E.
32 Ginsburg, Assistant Director;
1 Catherine B. Bye, Trial Attorney,
2 Office of Immigration Litigation,
3 Civil Division, United States
4 Department of Justice, Washington,
5 D.C.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioners, Michael and Yosef Niazov, natives of
12 Uzbekistan and citizens of Israel, and Olga Niazov, a native
13 of Kazakhstan and citizen of Israel, seek review of a
14 September 16, 2009, order of the BIA affirming the January
15 14, 2008, decision of Immigration Judge (“IJ”) Elizabeth A.
16 Lamb denying their application for asylum, withholding of
17 removal, and relief under the Convention Against Torture
18 (“CAT”). In re Michael Niazov, Olga Niazov, Yosef Niazov,
19 Nos. A097 227 588, A097 227 590, A096 497 100 (B.I.A. Sept.
20 16, 2009), aff’g Nos. A097 227 588, A097 227 590, A096 497
21 100 (Immig. Ct. N.Y.C. Jan. 14, 2008). We assume the
22 parties’ familiarity with the underlying facts and
23 procedural history of the case.
24 Under the circumstances of this case, we review the
25 IJ’s decision as modified by the BIA decision. See Xue Hong
2
1 Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.
2 2005). The applicable standards of review are well-
3 established. See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin
4 Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
5 Petitioners argue that the agency erred in finding that
6 they did not establish past persecution because it failed to
7 consider the aggregate effect of the harassment and
8 discrimination they experienced in Israel. In Manzur, we
9 held that the agency errs when it considers a petitioner’s
10 alleged harm as “isolated incidents” and disposes of them
11 “without determining how they affected the significance of
12 the other incidents.” See Manzur v. U.S. Dep’t of Homeland
13 Sec., 494 F.3d 281, 290 (2d Cir. 2007); see also Poradisova
14 v. Gonzales, 420 F.3d 70, 79 (2d Cir. 2005). Here, the BIA
15 collectively addressed the “harassment and possible
16 employment discrimination” described by the lead petitioner
17 and found that it was insufficiently severe to constitute
18 persecution. See Fatin v. INS, 12 F.3d 1233, 1240 (3d
19 Cir.1993) (“[P]ersecution does not encompass all treatment
20 that our society regards as unfair, unjust, or even unlawful
21 or unconstitutional.”); see also Tian-Yong Chen v. INS, 359
22 F.3d 121, 127 (2d Cir. 2004). The IJ similarly considered
3
1 the harm petitioners suffered in the aggregate, stating that
2 “what happened to [them] in Israel” did not constitute
3 persecution. Manzur, 494 F.3d at 290. Specifically, the
4 lead petitioner failed to show that the inferior jobs and
5 military positions he received were a result of ethnic
6 discrimination and not due to a lack of qualifications on
7 account of his limited knowledge of Hebrew and his high-
8 school education. Furthermore, the alleged employment
9 discrimination the lead petitioner described does not compel
10 the finder of fact to conclude that he was persecuted. See
11 Guan Shan Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 67 (2d
12 Cir. 2002) (applicant must show at least a “deliberate
13 imposition of a substantial economic disadvantage”). The
14 lead petitioner also did not allege any sufficiently
15 significant physical harm. Cf. Beskovic v. Gonzales, 467
16 F.3d 223, 226 (2d Cir. 2006) Although the lead petitioner
17 alleged that he was called a “goy” and told to go home by
18 one police officer, persecution involves harm that rises
19 above such “mere harassment.” See Ivanishvili v. U.S. Dep’t
20 of Justice, 433 F.3d 332, 341 (2d Cir. 2006).
21 Therefore, because it properly considered the harm the
22 petitioners suffered both as isolated experiences and in the
4
1 aggregate, the agency did not err in concluding that they
2 failed to establish past persecution. See Manzur, 494 F.3d
3 at 290; Tian-Yong Chen, 359 F.3d at 127; Poradisova, 420
4 F.3d at 79-80. Petitioners do not challenge the agency’s
5 determination that they failed to establish a well-founded
6 fear of persecution apart from their unavailing claims of
7 past persecution or their eligibility for CAT relief.
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, any stay of
10 removal that the Court previously granted in this petition
11 is VACATED, and any pending motion for a stay of removal in
12 this petition is DISMISSED as moot. Any pending request for
13 oral argument in this petition is DENIED in accordance with
14 Federal Rule of Appellate Procedure 34(a)(2), and Second
15 Circuit Local Rule 34.1(b).
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
18
19
20
5