Kazmi v. Holder , 391 F. App'x 7 ( 2010 )

09-3302-ag
Kazmi v. Holder
BIA
Straus, IJ
A079 076 416
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 9 th day of August, two thousand ten.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 DEBRA ANN LIVINGSTON,
9 DENNY CHIN,
10 Circuit Judges.
11 _______________________________________
12
13 ZAIN UL ABIDIN KAZMI,
14 Petitioner,
15
16 v. 09-3302-ag
17 NAC
18 ERIC H. HOLDER, JR., U.S. ATTORNEY
19 GENERAL, JANET NAPOLITANO, SECRETARY
20 OF U.S. DEPARTMENT OF HOMELAND
21 SECURITY,
22 Respondents.
23 ______________________________________
24
25 FOR PETITIONER: Kevin E. Dehghani, New Haven,
26 Connecticut.
27
28 FOR RESPONDENTS: Tony West, Assistant Attorney
29 General; Jennifer Levings, Senior
1 Litigation Counsel; Tim Ramnitz,
2 Attorney, Office of Immigration
3 Litigation, Washington D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Zain Ul Abidin Kazmi, a native and citizen
10 of Pakistan, seeks review of the July 9, 2009, order of the
11 BIA affirming the November 8, 2007, decision of Immigration
12 Judge (“IJ”) Michael W. Straus denying his application for
13 asylum, withholding of removal, and relief under the
14 Convention Against Torture (“CAT”). In Zain Ul Abidin
15 Kazmi, No. A079 076 416 (B.I.A. July 9, 2009), aff’g No.
16 A079 076 416 (Immig. Ct. Hartford, CT Nov. 8, 2007). We
17 assume the parties’ familiarity with the underlying facts
18 and procedural history in this case.
19 Because the BIA affirmed and supplemented the IJ’s
20 decision, we review both the IJ’s and BIA’s decisions. See
21 Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
22 applicable standards of review are well-established.
23 See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562
24 F.3d 510, 513 (2d Cir. 2009).
2
1 Title 8, Section 1158(a)(3) of the United States Code
2 provides that no court shall have jurisdiction to review the
3 agency’s finding that an asylum application was untimely
4 under 8 U.S.C. § 1158(a)(2)(B), or its finding of neither
5 changed nor extraordinary circumstances excusing the
6 untimeliness under 8 U.S.C. § 1158(a)(2)(D).
7 Notwithstanding that provision, however, we retain
8 jurisdiction to review constitutional claims and “questions
9 of law.” 8 U.S.C. § 1252(a)(2)(D). Kazmi argues that the
10 BIA committed legal error by failing to address his
11 challenge to the IJ’s pretermission of his asylum
12 application. However, the BIA explicitly found that Kazmi
13 “failed to file an application for asylum within one year of
14 last entry, and failed to show extraordinary circumstances
15 relating to the delay, or changes in country conditions or
16 [Kazmi’s] circumstances that materially affected his
17 eligibility for asylum.” To the extent Kazmi seeks to
18 challenge this finding, we are without jurisdiction to
19 consider it. See 8 U.S.C. § 1158(a)(3). Nor has Kazmi
20 raised a constitutional claim or question of law sufficient
21 to fall under § 1252(a)(2)(D).
22 The BIA also did not err in finding that Kazmi failed
3
1 to establish a well-founded fear of persecution if returned
2 to Pakistan. Kazmi waived any challenge to the BIA’s
3 finding that he could safely relocate within Pakistan by
4 failing to raise the issue in his opening brief. This is
5 true despite Kazmi’s brief discussion of the BIA’s internal
6 relocation finding in his reply brief. See F.T.C. v. Verity
7 Int’l, Ltd., 443 F.3d 48, 65 (2d Cir. 2006) (issues raised
8 for the first time in a reply brief are deemed waived).
9 That finding was alone dispositive of his claim for
10 withholding of removal. See Steevenez v. Gonzales, 476 F.3d
11 114, 117-18 (2d Cir. 2007); see also 8 C.F.R.
12 § 1208.16(b)(3)(i). Therefore, because the BIA reasonably
13 found that Kazmi failed to establish a well-founded fear of
14 persecution, it did not err in denying his claim for CAT
15 relief because both claims were based on the same factual
16 predicate. See Xue Hong Yang v. U.S. Dep’t of Justice, 426
17 F.3d 520, 523 (2d Cir. 2005). In any event, the BIA
18 reasonably found that Kazmi presented no evidence that he
19 would be tortured by or with the acquiescence of the
20 Pakistani government. See 8 C.F.R. § 1208.18(a)(1).
21 For the foregoing reasons, the petition for review is
22 DENIED. As we have completed our review, any stay of
23 removal that the Court previously granted in this petition
4
1 is VACATED, and any pending motion for a stay of removal in
2 this petition is DISMISSED as moot. Any pending request for
3 oral argument in this petition is DENIED in accordance with
4 Federal Rule of Appellate Procedure 34(a)(2), and Second
5 Circuit Local Rule 34.1(b).
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
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