Khan v. Holder

09-0393-ag
Khan v. Holder
BIA
Balasquide, IJ
A097 532 770
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 3 rd day of March, two thousand ten.
PRESENT:
ROBERT D. SACK,
REENA RAGGI,
RICHARD C. WESLEY,
Circuit Judges.
_____________________________________
NASEEM KHAN,
Petitioner,
v. 09-0393-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Usman B. Ahmad, Law Office of Usman
B. Ahmad, P.C., Long Island City,
New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General, Civil Division; Linda S.
Wernery, Assistant Director; Trish
Maskew, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice, Civil
Division, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED in part and DISMISSED in part.
Petitioner Naseem Khan, a native and citizen of
Pakistan, seeks review of a December 31, 2008 order of the
BIA affirming the February 13, 2008 decision of Immigration
Judge (“IJ”) Javier Balasquide pretermitting his application
for asylum and denying his application for withholding of
removal and relief under the Convention Against Torture
(“CAT”). In re Naseem Khan, No. A097 532 770 (B.I.A. Dec.
31, 2008), aff’g No. A097 532 770 (Immig. Ct. N.Y. City Feb.
13, 2008). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
Under the circumstances of this case, we review the
decision of the IJ as supplemented by the BIA. See, e.g.,
Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
applicable standards of review are well-established. See
Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008);
Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
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I. Asylum
Title 8, Section 1158(a)(3) of the United States Code
provides that no court shall have jurisdiction to review the
agency’s finding that an asylum application was untimely
under 8 U.S.C. § 1158(a)(2)(B), or its finding of neither
changed nor extraordinary circumstances excusing
untimeliness under 8 U.S.C. § 1158(a)(2)(D).
Notwithstanding that provision, this Court retains
jurisdiction to review constitutional claims and questions
of law. See 8 U.S.C. § 1252(a)(2)(D). Nevertheless,
because Khan challenges only purely factual determinations
and the agency’s exercise of discretion, we dismiss the
petition for review to the extent he challenges the agency’s
pretermission of his asylum application. See 8 U.S.C.
§ 1158(a)(3).
II. Withholding of Removal and CAT Relief
Both the IJ and the BIA found that Khan was not
credible. In addition, they concluded that even if he had
testified credibly, he failed to meet his burden of proof.
Khan does not challenge the latter determination, waiving
any such argument. See Yueqing Zhang v. Gonzales, 426 F.3d
540, 545 n.7 (2d Cir. 2005). That waiver is dispositive of
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his withholding of removal claim. In addition, Khan did not
challenge the denial of his request for CAT relief either
before the BIA or this Court, abandoning that claim. See
Gui Yin Liu v. INS, 508 F.3d 716, 723 n.6 (2d Cir. 2007).
For the foregoing reasons, the petition for review is
DENIED in part and DISMISSED in part. As we have completed
our review, any pending motion for a stay of removal in this
petition is DISMISSED as moot. Any pending request for oral
argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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