Kujabi v. Holder , 379 F. App'x 51 ( 2010 )

09-2699-ag
Kujabi v. Holder
BIA
Weisel, IJ
A099 075 560
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
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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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 27 th day of May, two thousand ten.
PRESENT:
GUIDO CALABRESI,
PETER W. HALL,
DENNY CHIN,
Circuit Judges.
_______________________________________
BALLA MUSA KUJABI,
Petitioner,
v. 09-2699-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Ronald S. Salomon, New York, New
York.
FOR RESPONDENT: Tony West, Assistant Attorney
General, Civil Division; Daniel E.
Goldman, Senior Litigation Counsel,
Office of Immigration Litigation;
Brianne Whelan Cohen, Trial
Attorney, Office of Immigration
Litigation, Civil Division, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Balla Musa Kujabi, a native and citizen of
the Gambia, seeks review of a June 2, 2009, order of the BIA
affirming the October 31, 2007, decision of Immigration
Judge (“IJ”) Robert D. Weisel denying Kujabi’s application
for asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Balla Musa
Kujabi, No. A099 075 560 (B.I.A. June 2, 2009), aff’g No.
A099 075 560 (Immig. Ct. N.Y. City Oct. 31, 2007). We
assume the parties’ familiarity with the underlying facts
and procedural history in this case.
Under the circumstances of this case, we review the
IJ’s decision as supplemented by the BIA’s decision. See
Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
applicable standards of review are well-established. See
8 U.S.C. § 1252(b)(4)(B); Jian Hui Shao v. Mukasey, 546 F.3d
138, 157-58 (2d Cir. 2008); Salimatou Bah v. Mukasey, 529
F.3d 99, 110 (2d Cir. 2008).
I. Asylum and Withholding of Removal
As a preliminary matter, there is no merit in Kujabi’s
argument that the government “failed to demonstrate that
there has been any fundamental change in country conditions
in Gambia,” as the government need not demonstrate a
fundamental change in country conditions in the absence of a
finding of past persecution. See 8 C.F.R.
§ 1208.16(b)(1)(i)(A). Here, Kujabi does not challenge the
agency’s findings that he failed to establish past
persecution.
Moreover, substantial evidence supports the agency’s
conclusion that Kujabi failed to demonstrate a well-founded
fear of persecution. The agency found that: 1) Kujabi
presented no evidence that his parents were persecuted in
the Gambia; (2) the record did not support Kujabi’s
assertion that his father’s political opinion would be
imputed to him; and (3) Kujabi presented no evidence that
his mother and six siblings who remained in the Gambia had
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suffered any mistreatment at the hands of the Gambian
government. We are not persuaded by Kujabi’s arguments that
this analysis was erroneous. See Manzur v. U.S. Dep’t of
Homeland Sec., 494 F.3d 281, 290 (2d Cir. 2007).
We find unavailing Kujabi’s argument that because his
testimony was credible, he necessarily established a well-
founded fear of future persecution. Although credible
testimony alone may suffice to sustain an applicant’s
burden, it does not always. See Diallo v. INS, 232 F.3d
279, 287 (2d Cir. 2000). Here, as the BIA noted, Kujabi
provided no evidence that the Gambian government is, or is
likely to become, interested in persecuting him. Moreover,
although Kujabi argues that his claim is supported by
country conditions evidence reporting that the Gambian
government suppresses free political expression, Kujabi
points to no evidence substantiating his claim that his
father’s political opinion would be imputed to him. Rather,
as the BIA found, Kujabi “has not indicated that he was in
any way affiliated with his father’s role as the head of the
national intelligence branch in the Gambian government.”
Kujabi further argues that the IJ erroneously found
that the objective reasonableness of his fear was undermined
because his mother and siblings still live unharmed in the
Gambia. We have held that when an asylum applicant’s family
members continue to live unharmed in an applicant’s native
country, an IJ may reasonably find that any well-founded
fear is diminished. See Melgar de Torres v. Reno, 191 F.3d
307, 313 n.2 (2d Cir. 1999). Although Kujabi testified that
he did not know whether his siblings are still living
unharmed in the Gambia, because the BIA correctly noted that
Kujabi provided no evidence that his similarly-situated
siblings had suffered any harm, it was reasonable for the
BIA to conclude that the objective reasonableness of
Kujabi’s fear of persecution had been diminished. See id.;
8 U.S.C. § 1229a(c)(4)(B)(noting that the applicant bears
the burden of proof to establish the elements of his claim).
Because Kujabi was unable to meet his burden to show he
was eligible for asylum, he necessarily failed to meet the
higher burden required for withholding of removal. See Paul
v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
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II. CAT Relief
To assess whether it is more likely than not that a
petitioner would be tortured if returned to the country of
removal, the agency shall consider all evidence regarding
the possibility of future torture. See Shu Ling Ni v. Bd.
of Immigration Appeals, 439 F.3d 177, 179 (2d Cir. 2006); 8
C.F.R. § 1208.16(c)(3).
Contrary to Kujabi’s argument that the IJ failed to
separately analyze his CAT claim, the IJ found that because
Kujabi “was never detained or harmed in the Gambia, and
furthermore, that his siblings in the Gambia live unmolested
with his mother, it is not clearly probable that [he] would
be tortured if he returns to the Gambia.” The BIA similarly
determined that Kujabi failed to establish a likelihood of
torture because he failed to demonstrate that “he will be
tortured by or with the acquiescence . . . of the Gambian
government.” Rather than address these findings, Kujabi
argues that the agency failed to consider country conditions
evidence which established the Gambia as a country where
“torture is routinely practiced.” We have found, however,
that an applicant must produce “particularized evidence” of
a likelihood of torture, and that “generalized language
culled from . . . State Department reports” is insufficient
to establish that any alien who may be detained being
returned is entitled to CAT relief. Mu Xiang Lin v. U.S.
Dep’t of Justice, 432 F.3d 156, 158, 159-60 (2d Cir. 2005).
Because Kujabi failed to present any specific evidence that
he faces a likelihood of torture upon his return to the
Gambia, the agency reasonably denied his request for CAT
relief.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot. Any pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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