Yanti v. Holder , 480 F. App'x 97 ( 2012 )

11-2020-ag
Yanti v. Holder
BIA
A089 253 252
A089 253 253
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 11th day of May, two thousand twelve.
5
6 PRESENT:
7 JOSEPH M. McLAUGHLIN,
8 JOSÉ A. CABRANES,
9 BARRINGTON D. PARKER,
10 Circuit Judges.
11 _____________________________________
12
13 EKA YANTI, HERMANTO KHOMAN,
14 Petitioners,
15 11-2020-ag
16 v. NAC
17
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONERS: Theodore N. Cox, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Paul Fiorino, Senior
27 Litigation Counsel; Derek C. Julius,
28 Senior Litigation Counsel, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioners Eka Yanti and Hermanto Khoman, natives and
6 citizens of Indonesia, seek review of an April 19, 2011,
7 decision of the BIA denying their motion to reopen removal
8 proceedings. In re Eka Yanti and Hermanto Khoman, Nos. A089
9 253 252/253 (B.I.A. Apr. 19, 2011). We assume the parties’
10 familiarity with the underlying facts and procedural history
11 of the case.
12 We review the BIA’s denial of a motion to reopen for
13 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
14 (2d Cir. 2006). As the Government correctly argues, in
15 their motion to reopen, petitioners did not challenge the
16 BIA’s dispositive finding that Yanti can safely relocate in
17 Indonesia. In addition to the statutory requirement that
18 petitioners exhaust the categories of relief they seek, 8
19 U.S.C. § 1252(d)(1), petitioners must also raise to the BIA
20 the specific issues they later raise in this Court. See
21 Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004). While not
22 jurisdictional, this judicially imposed exhaustion
23 requirement is mandatory. Zhong v. U.S. Dep’t of Justice,
2
1 480 F.3d 104, 119-20 (2d Cir. 2007). Accordingly, because
2 petitioners failed to challenge the relocation finding in
3 the motion to reopen, and because the Government has raised
4 this failure to exhaust in its brief to this Court, we
5 decline to consider this issue. See id. at 124 (describing
6 the issue exhaustion requirement as an “affirmative defense
7 subject to waiver”).
8 This alone provides a basis for denying the petition
9 for review. Because the agency’s finding that Yanti could
10 safely relocate was dispositive of the petitioners’ claims,
11 see 8 C.F.R. §§ 1208.13(b), 1208.16(b)(2) and (c)(3);
12 Steevenez v. Gonzales, 476 F.3d 114, 117-18 (2d Cir. 2007)
13 (“An alien’s ability to relocate safely constitutes a
14 ground, in and of itself, on which an [Immigration Judge’s]
15 denial of withholding of removal may be based....”); Singh
16 v. BIA, 435 F.3d 216, 219 (2d Cir. 2006) (“Asylum in the
17 United States is not available to obviate re-location to
18 sanctuary in one’s own country.”), and they did not
19 challenge this finding in the motion to reopen or explain
20 why their new evidence demonstrated that there was no area
21 of Indonesia to which they could relcoate, they were unable
22 to establish that the result of the proceedings would be
23 different if they were reopened, see Poradisova v. Gonzales,
3
1 420 F.3d 70, 78 (2d Cir. 2005) (finding that to prevail on a
2 motion to reopen, an alien must “establish prima facie
3 eligibility for asylum, i.e., a realistic chance that [s]he
4 will be able to establish eligibility” (internal quotation
5 marks omitted)).
6 Finally, although brief, the BIA’s decision provides a
7 sufficient basis for review. See Wang v. BIA, 437 F.3d 270,
8 275 (2d Cir. 2006).
9 For the foregoing reasons, the petition for review is
10 DENIED. As we have completed our review, any stay of
11 removal that the Court previously granted in this petition
12 is VACATED, and any pending motion for a stay of removal in
13 this petition is DISMISSED as moot. Any pending request for
14 oral argument in this petition is DENIED in accordance with
15 Federal Rule of Appellate Procedure 34(a)(2), and Second
16 Circuit Local Rule 34.1(b).
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
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