Diany Ba v. Holder

08-5197-ag (L); 08-5206-ag (Con)
Ba v. Holder
BIA
Chew, IJ
A098 975 322
A098 975 321
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 26 th day of January, two thousand ten.
5
6 PRESENT:
7 JOSEPH M. McLAUGHLIN,
8 JOSÉ A. CABRANES,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _________________________________________
12
13 DIANY BA AND MOUSSA KANTE,
14 Petitioners,
15 08-5197-ag (L);
16 v. 08-5206-ag (Con)
17 NAC
18
19 ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL, 1
20 Respondent.
21 _________________________________________
22
23 FOR PETITIONER: Theodore Vialet, New York, New York.
24
1
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), United States Attorney General Eric H. Holder,
Jr., is substituted for former Attorney General Michael B.
Mukasey as Respondent in this case.
1 FOR RESPONDENT: Tony West, Assistant Attorney
2 General, Mark C. Walters, Senior
3 Litigation Counsel, Zoe J. Heller,
4 Office of Immigration Litigation,
5 Civil Division, United States
6 Department of Justice, Washington,
7 D.C.
8
9 UPON DUE CONSIDERATION of these petitions for review of
10 two Board of Immigration Appeals (“BIA”) decisions, it is
11 hereby ORDERED, ADJUDGED, AND DECREED, that the petitions
12 for review are DENIED in part and DISMISSED in part.
13 Petitioner Diany Ba, a native and citizen of France and
14 Mali, and Petitioner Moussa Kante, a native and citizen of
15 Mali, seek review of the September 24, 2008 orders of the
16 BIA affirming the February 1, 2007 decision of Immigration
17 Judge (“IJ”) George T. Chew, denying their applications for
18 asylum, withholding of removal, and relief under the
19 Convention Against Torture (“CAT”), and Kante’s application
20 for cancellation of removal under 8 U.S.C. § 1229b. In re
21 Diany Ba, No. A098 975 322 (B.I.A. Sept. 24, 2008), In re
22 Moussa Kante, No. A098 975 321 (B.I.A. Sept. 24, 2008),
23 aff’g No. A098 975 321, A098 975 322 (Immig. Ct. N.Y. City
24 Feb. 1, 2007). We assume the parties’ familiarity with the
25 underlying facts and procedural history of the case.
26 Under the circumstances of this case, we review the
2
1 decision of the IJ as supplemented by the BIA. See Yan Chen
2 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
3 applicable standards of review are well-established.
4 8 U.S.C. § 1252(b)(4)(B); Salimatou Bah v. Mukasey, 529 F.3d
5 99, 110 (2d Cir. 2008).
6 I. Diany Ba, Docket No. 08-5197-ag
7 Substantial evidence supports the agency’s conclusion
8 that Ba failed to establish that she has a well founded fear
9 of persecution in Mali or France based on her inter-caste
10 marriage. In support of that finding, the agency reasonably
11 relied on the lack of sufficient corroborating evidence
12 regarding the caste system in Mali. Diallo v. INS, 232 F.3d
13 279, 284 (2d Cir. 2000). Furthermore, the agency did not
14 err in declining to give weight to the Wikipedia article
15 describing the caste system in Africa. See Xiao Ji Chen v.
16 U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006)
17 (citing Asociacion de Compositores y Editores de Musica
18 Latino Americana v. Copyright Royalty Tribunal, 854 F.2d 10,
19 13 (2d Cir.1988)). Because Ba was unable to meet her burden
20 to establish her eligibility for asylum, she was necessarily
21 unable to meet the higher standard required to succeed on a
22 claim for withholding of removal. See Paul v. Gonzales, 444
23 F.3d 148, 156 (2d Cir. 2006).
3
1 II. Moussa Kante, Docket No. 08-5206-ag
2 A. Asylum, Withholding of Removal, and CAT Relief 2
3 Substantial evidence supports the agency’s conclusion
4 that “country conditions in Mali are such that the
5 respondent’s life or freedom would not be threatened upon
6 return.” In support of that finding, the agency reasonably
7 relied on the 2005 U.S. Department of State Report on Human
8 Rights Practices in Mali. See Tu Lin v. Gonzales, 446 F.3d
9 395, 400 (2d Cir. 2006). In addition, the IJ reasonably
10 noted that Kante has not lived in Mali since 1994 and failed
11 to submit any evidence to show that he continues to be
12 politically involved with the Union Democratique du Peuple
13 Malien political party since his arrival in the United
14 States. See Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 10415 (2d Cir. 2005). Accordingly, the agency did not err when it
16 concluded that Kante failed to establish his eligibility for
17 withholding of removal.
18
2
In his appeal to the BIA, Kante failed to challenge
the IJ's pretermission of his application for asylum or
argue his well-founded fear of persecution based on his
inter-caste marriage. Thus, we decline to consider these
issues because Kante failed to exhaust them before the
agency. Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104,
124 (2d Cir.2007).
4
1 B. Cancellation of Removal
2 Lastly, Kante’s argument that the IJ failed to
3 acknowledge evidence relevant to hardship does not present a
4 constitutional claim or question of law because the IJ, in
5 fact, noted country conditions in Mali and the health
6 conditions of Kante’s United States citizen children. De La
7 Vega v. Gonzales, 436 F.3d 141, 144 (2d Cir. 2006). Thus,
8 we lack jurisdiction to review the agency’s denial of
9 Kante’s application for cancellation of removal based on its
10 discretionary determination that he failed to demonstrate
11 “exceptional and extremely unusual hardship” under 8 U.S.C.
12 § 1229b(b)(1)(D). See 8 U.S.C. § 1252(a)(2)(B)(i).
13 For the foregoing reasons, Ba’s petition for review is
14 DENIED, and Kante’s petition for review is DENIED in part
15 and DISMISSED in part. As we have completed our review, any
16 stay of removal that the Court previously granted in these
17 petitions is VACATED, and any pending motions for a stay of
18 removal in these petitions are DISMISSED as moot. Any
19 pending requests for oral argument in these petitions are
20 DENIED in accordance with Federal Rule of Appellate
21 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
22 FOR THE COURT:
23 Catherine O’Hagan Wolfe, Clerk
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