Agbontaen v. Holder

11-5045
Agbontaen v. Holder
BIA
Straus, IJ
A073 179 165
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 11th day of August, two thousand fourteen.
5
6 PRESENT:
7 REENA RAGGI,
8 DEBRA ANN LIVINGSTON,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 OSARO AGBONTAEN,
14 Petitioner,
15
16 v. 11-5045
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gregory C. Osakwe, Hartford,
24 Connecticut.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; Ada E. Bosque, Senior
28 Litigation Counsel; Yamileth G.
29 Davila, Trial Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 decision of the Board of Immigration Appeals (“BIA”), it is
7 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
8 review is DENIED.
9 Osaro Agbontaen, a native and citizen of Nigeria, seeks
10 review of a November 21, 2011, decision of the BIA affirming
11 the July 15, 2010, and March 30, 2004, decisions of
12 Immigration Judge (“IJ”) Michael W. Straus, denying him
13 asylum, withholding of removal, and relief under the
14 Convention Against Torture (“CAT”). In re Osaro Agbontaen,
15 No. A073 179 165 (B.I.A. Nov. 21, 2011), aff’g No. A073 179
16 165 (Immig. Ct. Hartford July 15, 2010 & March 30, 2004).
17 We assume the parties’ familiarity with the underlying facts
18 and procedural history in this case.
19 As an initial matter, we lack jurisdiction to consider
20 Agbontaen’s argument that the agency erred in declining to
21 “repaper” his proceedings, i.e., terminate his deportation
22 proceedings and initiate removal proceedings to allow him to
23 apply for cancellation of removal, because he did not
24 exhaust that claim before the BIA. See Karaj v. Gonzales,
2
1 462 F.3d 113, 119 (2d Cir. 2006). Regardless, the claim is
2 without merit as Agbontaen is ineligible for repapering
3 under the agency’s policies.
4 We have reviewed both the IJ’s and the BIA’s opinions
5 “for the sake of completeness.” Zaman v. Mukasey, 514 F.3d
6 233, 237 (2d Cir. 2008). The applicable standards of review
7 are well-established. See 8 U.S.C. § 1252(b)(4)(B); see
8 also Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.
9 2009).
10 The agency found that, even if Agbontaen suffered past
11 persecution, the government had rebutted any presumption of
12 future harm by showing that he could relocate to southern
13 Nigeria to avoid persecution on account of his Christian
14 faith and that it would be reasonable for him to do so. See
15 8 C.F.R. §§ 1208.13(b), 1208.16(b); see also Surinder Singh
16 v. BIA, 435 F.3d 216, 219 (2d Cir. 2006). This finding is
17 supported by the record. Indeed, Agbontaen and his wife
18 testified that they could safely practice their religion in
19 southern Nigeria, the country conditions evidence
20 demonstrated the same, Agbontaen had visited the south for
21 religious and personal reasons, and his wife has Christian
22 family members living unharmed in that region. See 8 C.F.R.
3
1 § 1208.13(b)(3). Accordingly, the agency reasonably
2 concluded that Agbontaen had not established his eligibility
3 for asylum and withholding of removal. See 8 C.F.R.
4 §§ 1208.13(b), 1208.16(b); see also Surinder Singh v. BIA,
5 435 F.3d at 219.
6 In light of the agency’s relocation finding, as well as
7 the country conditions evidence demonstrating that the
8 Nigerian government respects religious freedom and has not
9 detained any religious prisoners, the agency did not err in
10 finding that Agbontaen failed to establish his eligibility
11 for CAT relief. See 8 C.F.R. § 1208.16(c)(3) (“In assessing
12 whether it is more likely than not that an applicant would
13 be tortured in the proposed country of removal, all evidence
14 relevant to the possibility of future torture shall be
15 considered, including, but not limited to . . . [e]vidence
16 that the applicant could relocate . . . and . . . [o]ther
17 relevant information regarding conditions in the country of
18 removal.”); see also Pierre v. Gonzales, 502 F.3d 109, 115,
19 118 (2d Cir. 2007).
20 We do not consider Agbontaen’s unexhausted arguments
21 that he will face persecution on account of his membership
22 in a particular social group. See Lin Zhong v. U.S. Dep’t
23 of Justice, 480 F.3d 104, 119-20 (2d Cir. 2007).
4
1 For the foregoing reasons, the petition for review is
2 DENIED. Any pending request for oral argument in this
3 petition is DENIED in accordance with Federal Rule of
4 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
5 34.1(b).
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk of Court
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