Gundogdu v. Holder ( 2010 )

09-2737-ag
Gundogdu v. Holder
BIA
Reid, IJ
A099 759 992
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 27 th day of May, two thousand ten.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 PETER W. HALL,
9 DENNY CHIN,
10 Circuit Judges.
11 _______________________________________
12
13 ISMAIL GUNDOGDU,
14 Petitioner,
15
16 v. 09-2737-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ____________________________________________________________
22
23 FOR PETITIONER: Jay Ho Lee, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Shelley R. Goad, Assistant
27 Director; Dalin R. Holyoak, Trial
28 Attorney, Office of Immigration
29 Litigation, United States Department
30 of Justice, Washington, D.C.
31 UPON DUE CONSIDERATION of this petition for review of a
32 Board of Immigration Appeals (“BIA”) decision, it is hereby
1 ORDERED, ADJUDGED, AND DECREED, that the petition for review
2 is DENIED.
3
4 Ismail Gundogdu, a native and citizen of Turkey, seeks
5 review of a May 29, 2009, order of the BIA affirming the May
6 5, 2008, decision of Immigration Judge (“IJ”) John B. Reid,
7 which denied his application for asylum, withholding of
8 removal, and relief under the Convention Against Torture
9 (“CAT”). In re Ismail Gundogdu, No. A099 759 992 (B.I.A.
10 May 29, 2009), aff’g No. A099 759 992 (Immig. Ct. Batavia
11 May 5, 2008). We assume the parties’ familiarity with the
12 underlying facts and procedural history in this case.
13
14 Under the circumstances of this case, we review the
15 IJ’s decision as supplemented by the BIA’s decision. See
16 Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
17 applicable standards of review are well-established. See 8
18 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of
19 Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007).
20 I. CAT Relief
21 Contrary to the government’s argument, we find that
22 Gundogdu sufficiently exhausted his CAT claim before the
23 BIA. See 8 U.S.C. § 1252(d)(1 (providing that this Court
24 “may review a final order of removal only if . . . the alien
25 has exhausted all administrative remedies available to the
26 alien as of right”). In his appeal brief, Gundogdu cited
27 the CAT standard and made arguments specific to CAT relief.
28 Although these arguments were somewhat conclusory, the BIA,
29 nonetheless, addressed the IJ’s denial of Gundogdu’s CAT
30 claim, finding that he had presented no “persuasive
31 arguments on appeal.” Under these circumstances, we find
32 that Gundogdu exhausted his challenge to the IJ’s denial of
33 CAT relief. See 8 U.S.C. § 1252(d)(1) ; see also Waldron v.
34 INS, 17 F.3d 511, 515 n.7 (2d Cir. 1994) (finding that if
35 the BIA addresses issues not raised by a petitioner, those
36 issues may be considered exhausted and may be reviewed by
37 this Court). Nonetheless, that challenge fails.
38
39 Contrary to Gundogdu’s argument, the record does not
40 demonstrate that the agency failed to consider his testimony
41 or the evidence he submitted in finding him ineligible for
42 CAT relief. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471
2
1 F.3d 315, 338 n.17 . Gundogdu claimed to fear torture at the
2 hands of both the Turkish government and the mafia. With
3 respect to Gundogdu’s fear that he would be imprisoned in
4 Turkey and tortured in prison, this Court has found it to be
5 insufficient to establish eligibility for CAT relief claims
6 such as this one when the applicant fears being imprisoned
7 in the designated country for violating a generally
8 applicable law but presents only generalized evidence that
9 torture occurs in the prisons there. See Mu Xiang Lin v.
10 U.S. Dep’t of Justice, 432 F.3d 156, 159-60 (2d Cir. 2005);
11 Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 143-44 (2d Cir.
12 2003).
13
14 With respect to Gundogdu’s fear of the mafia, the
15 agency reasonably determined that the particular single
16 beating Gundogdu endured did not rise to the level of
17 torture. See Kyaw Zwar Tun v. INS, 445 F.3d 554, 567 (2d
18 Cir. 2006). Thus, even assuming that Gundogdu was likely to
19 experience the same mistreatment in the future, that
20 mistreatment by the mafia would not give rise to a
21 meritorious CAT claim. See 8 C.F.R. §§ 1208.16(c), 1208.17.
22
23 II. Due Process Claim
24
25 Before the BIA, Gundogdu argued that the IJ did not
26 afford him an adequate opportunity to obtain counsel because
27 he failed to take into account the fact that Gundogdu was
28 incarcerated during his proceedings and was unable to speak
29 English . In his brief to this Court, however, he argues
30 that he suffers from mental illness, and that it should have
31 been apparent to the IJ that he was unable knowingly to
32 waive his right to counsel and represent himself. The
33 Government correctly asserts that this argument is “entirely
34 new.” Accordingly, we decline to consider it. 1 See Lin
35 Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 124 (2d Cir.
1
We note that although the BIA is without
jurisdiction to consider constitutional arguments, it
does have jurisdiction to consider challenges to the
procedural fairness of removal proceedings. Thus, any
such challenge must be raised to the BIA in order to be
preserved. See United States v. Gonzalez-Roque, 301 F.3d
39, 47-48 (2d Cir. 2002)
3
1 2007) (describing the issue exhaustion requirement as an
2 “affirmative defense subject to waiver”).
3
4 To the extent Gundogdu continues to advance the more
5 general argument that the IJ violated his due process rights
6 by not affording him an adequate opportunity to obtain an
7 attorney, that argument fails. In the immigration context,
8 due process requires that the alien be afforded a full
9 opportunity to present his claims. See Burger v. Gonzales,
10 498 F.3d 131, 134 (2d Cir. 2007) . Here, the IJ fully
11 explained to Gundogdu what was occurring at every step of
12 the proceedings. He also granted Gundogdu numerous
13 continuances to obtain counsel and to have his evidence
14 translated. At the merits hearing, Gundogdu explained that
15 he had been beaten by the mafia in Turkey and feared future
16 harm because he still owed money to the mafia. He further
17 claimed that he would also be imprisoned for aiding a friend
18 in fraudulently obtaining health insurance, and for
19 illegally obtaining a second passport. Under these
20 circumstances, we find that Gundogdu was given a full and
21 fair opportunity to present his claim. See Michel v. INS,
22 206 F.3d 253, 259 (2d Cir. 2000) (concluding that because
23 the IJ ensured the applicant was fully apprised of what was
24 taking place during the course of his proceedings and
25 continued the proceedings several times to afford the
26 applicant an opportunity to submit complete and accurate
27 information, “the IJ acted, procedurally, exactly as we hope
28 that an IJ would . . . .”); see also Burger, 498 F.3d at29 134.
30
31 For the foregoing reasons, the petition for review is
32 DENIED. As we have completed our review, any stay of
33 removal that the Court previously granted in this petition
34 is VACATED, and any pending motion for a stay of removal in
35 this petition is DISMISSED as moot. Any pending request for
36 oral argument in this petition is DENIED in accordance with
37 Federal Rule of Appellate Procedure 34(a)(2), and Second
38 Circuit Local Rule 34.1(b).
39
40 FOR THE COURT:
41 Catherine O’Hagan Wolfe, Clerk
42
43
4