Yero v. Holder ( 2009 )

08-6084-ag
Yero v. Holder
BIA
Van Wyke, IJ
A096 267 356
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 10 th day of December, two thousand nine.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 ROGER J. MINER,
10 DEBRA ANN LIVINGSTON,
11 Circuit Judges.
12 _______________________________________
13
14 MALICK YERO,
15 Petitioner,
16
17 v. 08-6084-ag
18 NAC
19 ERIC H. HOLDER, Jr., U.S. ATTORNEY
20 GENERAL, 1
21 Respondent.
22 _______________________________________
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: Douglas F. Broder, Lindsey N.
2 Plotnick, Catherine A. LaRose, K&L
3 Gates LLP, New York, New York.
4
5 FOR RESPONDENT: Tony West, Assistant Attorney
6 General, Michael P. Lindemann,
7 Assistant Director, Christopher C.
8 Fuller, Senior Litigation Counsel,
9 Office of Immigration Litigation,
10 Civil Division, United States
11 Department of Justice, Washington,
12 D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
4 review is DENIED.
5 Petitioner Malick Yero, a native and citizen of
6 Mauritania, seeks review of a November 14, 2008 order of the
7 BIA vacating the October 28, 2004 decision of Immigration
8 Judge (“IJ”) William Van Wyke, granting Yero’s application
9 for asylum and denying his application for withholding of
10 removal. In re Malick Yero, No. A096 267 356 (B.I.A. Nov.
11 14, 2008), vacating No. A096 267 356 (Immig. Ct. N.Y. City
12 Oct. 28, 2004). We assume the parties’ familiarity with the
13 underlying facts and procedural history of the case.
14 When the BIA issues an independent decision on remand
15 from this Court, we review the BIA’s decision alone. See
2
1 Belortaja v. Gonzales, 484 F.3d 619, 622-23 (2d Cir. 2007)
2 (citing Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156,
3 159 (2d Cir. 2005)). We review the agency’s factual
4 findings under the substantial evidence standard. 8 U.S.C.
5 § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90,
6 95 (2d Cir. 2008). We review de novo questions of law and
7 the application of law to undisputed fact. See, e.g.,
8 Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
9 Contrary to Yero’s argument, the BIA did not violate
10 his due process rights by citing in its decision the 2005
11 State Department report on Mauritania, a more recent report
12 than the 2004 version that appeared in the record,
13 particularly where the 2005 report was not the sole basis
14 for denying Yero relief. See Shao v. Mukasey, 546 F.3d 138,
15 166-68 (2d Cir. 2008); Burger v. Gonzales, 498 F.3d 131, 135
16 (2d Cir. 2007) (finding that “where administratively noticed
17 facts are the sole basis for the BIA’s reversal of an IJ’s
18 grant of asylum,” the BIA “err[s] by failing to give [the
19 petitioner] advance notice of its intention to consider
20 th[ese] extra-record fact[s].”). Accordingly, although the
21 BIA is “strongly encourage[d] . . . to adopt procedures to
22 alert the parties of any agency intent to take judicial
3
1 notice of extra-record facts and to afford them an
2 opportunity to be heard,” we find no error in its failure to
3 do so in this case. 2 Shao, 546 F.3d at 167 n.29.
4 The BIA did not conduct de novo review of the IJ’s
5 factual findings. See 8 C.F.R. § 1003.1(d)(3)(i)
6 (prohibiting the BIA from conducting de novo review of
7 findings of fact). The BIA’s decision observed that Yero
8 had not articulated “any particular political or religious
9 affiliations or beliefs for which he would be targeted for
10 harm.” That statement was not inconsistent with the IJ’s
11 findings. To the contrary, the IJ had found that, with
12 respect to his religion, Yero was “in part undecided, and he
13 feels at ease with being undecided,” and that although he
14 would allow people to characterize him as Christian, he
15 “maintains his own reservations that kept him from making a
16 commitment to a new religion.” Additionally, with respect
17 to Yero’s political views, the IJ found that they were
18 related “to fundamental decency, human rights, justice, and
19 other large questions that political parties in their
20 various ways try to address,” even though Yero was “not
2
We note that the BIA’s claim to the 2005 report in
its original decision was merely a “see also” cite.
4
1 interested in political parties.” The BIA’s findings were
2 thus entirely consistent with the IJ’s. Having echoed the
3 IJ’s findings, the BIA was entitled to reach a different
4 determination regarding Yero’s ultimate eligibility for
5 relief. See 8 C.F.R. § 1003.1(d)(3)(ii).
6 With respect to Yero’s argument that the BIA erred in
7 its eligibility determination, we are similarly unpersuaded.
8 Yero argues, essentially, that he reasonably fears
9 persecution because Mauritanian authorities will learn of
10 his religious and political views because he will “speak
11 out” about them. The BIA rejected that claim as
12 impermissibly speculative. Even assuming that Yero
13 subjectively fears future persecution, “[t]he objective
14 element requires establishment of ‘the context and
15 believability’ of the petitioner’s claim ‘through
16 presentation of reliable, specific, objective supporting
17 evidence.’” Yang v. Gonzales, 478 F.3d 133, 140-41 (2d Cir.
18 2007) (citation omitted). However, a fear is not
19 objectively reasonable if it lacks “solid support” in the
20 record and is merely “speculative at best.” Jian Xing Huang
21 v. INS, 421 F.3d 125, 129 (2d Cir. 2005); see also Hongsheng
22 Leng v. Mukasey, 528 F.3d 135, 142-43 (2d Cir. 2008)
5
1 (holding that the IJ had to determine whether the evidence
2 indicated that government authorities either were aware or
3 likely to become aware of the petitioner’s political
4 activities before determining that he was ineligible for
5 withholding of removal or CAT relief). Here, Yero did not
6 show that authorities would become aware of his religious or
7 political views. See Hongsheng Leng, 528 F.3d at 143. Even
8 assuming that Mauritanian authorities would come to know
9 that Yero had rejected Islam, the State Department indicated
10 that non-Muslims were not punished for their beliefs, and
11 that “[t]he small number of known converts from Islam
12 suffered no social ostracism, and there were no reports of
13 societal or governmental attempts to punish them.” See
14 Bureau of Democracy, Human Rights, and Labor, U.S. Dep’t of
15 State, Mauritania Int’l Religious Freedom Report 2004.
16 Furthermore, because there was no solid support in the
17 record for Yero’s assertion that he had a well-founded fear
18 of persecution, there is no merit to his argument that the
19 agency erroneously applied to his asylum application a
20 standard higher than a “reasonable possibility” of
21 persecution. See Jian Xing Huang, 421 F.3d at 129.
22 Accordingly, the BIA properly concluded that Yero had not
6
1 met his burden of proof in establishing his eligibility for
2 asylum.
3 Although, as the government argues, Yero failed to
4 challenge the IJ’s denial of his withholding of removal
5 claim in his appeal to the BIA, the BIA excused Yero’s
6 failure to exhaust when it explicitly found that he “failed
7 to meet the higher burdens for withholding of removal and
8 protection pursuant to the Convention Against Torture.” See
9 Xian Tuan Ye v. DHS, 446 F.3d 289, 296-97 (2d Cir. 2006);
10 Waldron v. INS, 17 F.3d 511, 515 n.7 (2d Cir. 1994).
11 However, because Yero fails to challenge the BIA’s rejection
12 of his withholding of removal and CAT claims, and because
13 addressing this argument does not appear to be necessary to
14 avoid manifest injustice, we find that any such argument is
15 waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541
16 n.1, 545 n.7 (2d Cir. 2005).
17 For the foregoing reasons, the petition for review is
18 DENIED. As we have completed our review, any stay of
19 removal that the Court previously granted in this petition
20 is VACATED, and any pending motion for a stay of removal in
21 this petition is DISMISSED as moot. Any pending request for
22 oral argument in this petition is DENIED in accordance with
7
1 Federal Rule of Appellate Procedure 34(a)(2), and Second
2 Circuit Local Rule 34(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5
6
7 By:____________________________
8