Shah v. Holder ( 2009 )

08-5054-ag
Shah v. Holder
BIA
Burr, IJ
A095 959 882
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A
LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
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 11 th day of December, two thousand nine.
5
6 PRESENT:
7 RALPH K. WINTER,
8 PIERRE N. LEVAL,
9 REENA RAGGI,
10 Circuit Judges.
11 ______________________________________
12
13 SAYED ABDULLAH SHAH,
14 Petitioner,
15
16 v. 08-5054-ag
17 NAC
18
19 ERIC H. HOLDER, JR.,
20 UNITED STATES ATTORNEY GENERAL,
21 Respondent.
22 __________________________________
23
24 FOR PETITIONER: Khaghendra Gharti-Chhetry; Chhetry &
25 Associates, P.C., New York, New
26 York.
1 F O R RESPONDENT: Tony West, Assistant Attorney
2 General, Civil Division; Anh-Thu P.
3 Mai-Windle, Senior Litigation
4 Counsel; Annette M. Wietecha, Office
5 of Immigration Litigation, U.S.
6 Department of Justice, Washington,
7 D.C.
89 UPON DUE CONSIDERATION of this petition for review of a
10 decision of the Board of Immigration Appeals (“BIA”), it is
11 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
12 review is DENIED.
13 Petitioner Sayed Abdullah Shah, a native and citizen of
14 Pakistan, seeks review of a September 16, 2008 order of the
15 BIA, affirming the May 17, 2006 decision of Immigration
16 Judge Sarah Burr, denying his application for relief under
17 the Convention Against Torture (“CAT”). In re Sayed
18 Abdullah Shah, No. A095 959 882 (B.I.A. Sept. 16, 2008),
19 aff’g No. A095 959 882 (Immig. Ct. N.Y. City May 17, 2006).
20 We assume the parties’ familiarity with the underlying facts
21 and procedural history in this case.
22 When the BIA adopts the decision of the IJ and
23 supplements the IJ’s decision, this Court reviews the
24 decision of the IJ as supplemented by the BIA. See Yan Chen
25 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review
26 the agency’s factual findings under the substantial evidence
2
1 standard. 8 U.S.C. § 1252(b)(4)(B); see, e.g., Corovic v.
2 Mukasey, 519 F.3d 90, 95 (2d Cir. 2008). Questions of law
3 and the application of law to undisputed fact are reviewed
4 de novo. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d
5 Cir. 2008).
6 The agency did not err in determining that Shah was not
7 eligible for CAT relief. See Steevenez v. Gonzales, 476
8 F.3d 114, 117 (2d Cir. 2007) (citing Gill v. INS, 420 F.3d
9 82, 86 (2d Cir. 2005)). The agency’s regulations define
10 torture, in pertinent part, “as any act by which severe pain
11 or suffering is inflicted . . . by or at the instigation of
12 or with the consent or acquiescence of a public official or
13 other person acting in an official capacity.” 8 C.F.R. §
14 1208.18(a)(1). This Court has held that “‘[a]cquiescence’
15 does not require official ‘consent or approval’; it
16 ‘requires only that government officials know of or remain
17 willfully blind to an act and thereafter breach their legal
18 responsibility to prevent it.’” Delgado v. Mukasey, 508 F.3d
19 702, 708 (2d Cir. 2007) (quoting Khouzam v. Ashcroft, 361
20 F.3d 161, 170-71 (2d Cir. 2004)). Here, Shah based his CAT
21 claim on a fear of torture at the hands of individuals to
22 whom he owed a business debt. He asserted that when he
3
1 received a death threat from his creditors, he told the
2 police and that they told him they could not assist him.
3 Shah further claimed that when he was kidnapped and beaten
4 by some of his creditors, and reported the incident to
5 police, he was left with the impression that they could not
6 help him, despite their statement that they would search for
7 his assailants. Although Shah claimed that some of the
8 assailants called themselves policemen, he offered little in
9 the way of evidentiary support for the truth of that
10 assertion. The record also shows that Shah has access to
11 funds and has not shown an inability to pay the debts that
12 he claims are the basis for his fear of mistreatment. Under
13 such circumstances, we will not disturb the agency’s finding
14 that Shah failed to demonstrate a likelihood that he would
15 be tortured with the acquiescence of government officials.
16 See Ahmed v. Ashcroft, 286 F.3d 611, 612 (2d Cir. 2002) (“To
17 reverse under the substantial evidence standard, we must
18 find that the evidence not only supports that conclusion,
19 but compels it.”) (internal quotation marks omitted)
20 (emphasis in original).
21 For the foregoing reasons, the petition for review is
22 DENIED. As we have completed our review, any stay of
4
1 removal that the Court previously granted in this petition
2 is VACATED, and any pending motion for a stay of removal in
3 this petition is DISMISSED as moot. Any pending request for
4 oral argument in this petition is DENIED in accordance with
5 Federal Rule of Appellate Procedure 34(a)(2), and Second
6 Circuit Local Rule 34(b).
7
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe, Clerk
10
11
12 By:___________________________
5