Kinaj-Gjuraj v. Holder , 363 F. App'x 116 ( 2010 )

08-3685-ag
Kinaj-Gjuraj v. Holder
BIA
Lamb, IJ
A98 719 009
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 February, two thousand ten.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 ROBERT D. SACK,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _______________________________________
12
13 LIZABETH KINAJ-GJURAJ,
14 Petitioner,
15
16 v. 08-3685-ag
17 NAC
18 ERIC H. HOLDER, Jr., ATTORNEY GENERAL, 1
19 Respondent.
20 _______________________________________
21
22
23
24
25
1
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: Andrew P. Johnson, New York, New
2 York.
3
4 FOR RESPONDENT: Michael F. Hertz, Acting Assistant
5 Attorney General, Stephen J. Flynn,
6 Assistant Director, Arthur L. Rabin,
7 Attorney, Office of Immigration
8 Litigation, Civil Division, United
9 States Department of Justice,
10 Washington, D.C.
11
12 UPON DUE CONSIDERATION of this petition for review of a
13 decision of the Board of Immigration Appeals (“BIA”), it is
14 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
15 review is DENIED.
16 Petitioner Lizabeth Kinaj-Gjuraj, a native and citizen
17 of Albania, seeks review of a June 27, 2008 order of the BIA
18 affirming the April 25, 2007 decision of Immigration Judge
19 (“IJ”) Elizabeth Lamb, denying her applications for asylum,
20 withholding of removal, and relief under the Convention
21 Against Torture (“CAT”). In re Kinaj-Gjuraj, No. A98 719
22 009 (B.I.A. Jun. 27, 2008), aff’g No. A98 719 009 (Immig.
23 Ct. N.Y. City Apr. 25, 2007). We assume the parties’
24 familiarity with the underlying facts and procedural history
25 of the case.
26 When the BIA adopts the decision of the IJ and
27 supplements the IJ’s decision, we review the decision of the
28 IJ as supplemented by the BIA. See Yan Chen v. Gonzales,
29 417 F.3d 268, 271 (2d Cir. 2005). We review the agency’s
2
1 factual findings, including adverse credibility
2 determinations, under the substantial evidence standard.
3 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519
4 F.3d 90, 95 (2d Cir. 2008). We review de novo questions of
5 law and the application of law to undisputed fact. See,
6 e.g., Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.
7 2008).
8 We decline to review Kinaj-Gjuraj’s argument that she
9 is eligible for asylum and withholding of removal when, as
10 the Government asserts and the BIA noted in its decision,
11 Kinaj-Gjuraj failed to raise before the BIA any challenge to
12 the IJ’s finding that her claim bore no nexus to a protected
13 ground. See Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004)
14 (per curiam) (holding that petitioners must raise to the BIA
15 specific issues they later raise in this Court); Lin Zhong
16 v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20, 124 (2d Cir.
17 2007) (stating that, while not a jurisdictional issue, this
18 judicially imposed exhaustion requirement is mandatory and
19 an “affirmative defense subject to waiver”). Because an
20 applicant for asylum and withholding of removal must
21 demonstrate that the persecution she suffered or fears is on
22 account of her race, religion, nationality, political
23 opinion, or particular social group, 8 U.S.C.
24 §§ 1101(a)(42), 1231(b)(3), Kinaj-Gjuraj’s failure to
3
1 exhaust is fatal to both her asylum and withholding of
2 removal claims. See Steevenez v. Gonzales, 476 F.3d 114,
3 118 (2d Cir. 2007) (finding that, where a petitioner fails
4 to challenge a finding that constitutes a ground, in and of
5 itself, on which an IJ’s denial of relief was based, that
6 failure to exhaust may be fatal to his petition for review).
7 Finally, we find no basis upon which to disturb the
8 agency’s finding that Kinaj-Gjuraj failed to show that the
9 Albanian government would acquiesce in her torture at the
10 hands of human traffickers. As the IJ observed, she never
11 reported the alleged kidnapings to the police. Moreover,
12 the country condition evidence she submitted did not
13 constitute particularized evidence that Kinaj-Gjuraj will
14 more likely than not be tortured if returned to Albania.
15 See Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 143-44 (2d Cir.
16 2003).
17 For the foregoing reasons, the petition for review is
18 DENIED. As we have completed our review, the pending motion
19 for a stay of removal in this petition is DISMISSED as moot.
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
22
23
4