Filed: Mar. 30, 2010
Latest Update: Mar. 02, 2020
Summary: 09-1990-ag Diallo v. Holder BIA Nelson, IJ A098 635 172 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
Summary: 09-1990-ag Diallo v. Holder BIA Nelson, IJ A098 635 172 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 ..
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09-1990-ag
Diallo v. Holder
BIA
Nelson, IJ
A098 635 172
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 30 th day of March, two thousand ten.
5
6 PRESENT:
7 Ralph K. Winter,
8 José A. Cabranes,
9 Reena Raggi,
10 Circuit Judges.
11 _______________________________________
12
13 THIERNO DIALLO,
14 Petitioner,
15
16 v. 09-1990-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Thierno Diallo, pro se, Brooklyn,
24 New York.
1
2 FOR RESPONDENT: Tony West, Assistant Attorney
3 General; Emily Anne Radford,
4 Assistant Director; Jesse D. Lorenz,
5 Trial Attorney, Office of
6 Immigration Litigation, Civil
7 Division, United States Department
8 of Justice, Washington, D.C.
9
10 UPON DUE CONSIDERATION of this petition for review of a
11 Board of Immigration Appeals (“BIA”) decision, it is hereby
12 ORDERED, ADJUDGED, AND DECREED that the petition for review
13 is DENIED in part and DISMISSED in part.
14 The Petitioner, Thierno Diallo, a native and citizen of
15 Guinea, seeks review of an April 13, 2009, order of the BIA
16 affirming the August 20, 2007, decision of Immigration Judge
17 (“IJ”) Barbara A. Nelson pretermitting his application for
18 asylum, and denying his application for withholding of
19 removal and relief under the Convention Against Torture
20 (“CAT”). In re Diallo, No. A098 635 172 (B.I.A. Apr. 13,
21 2009), aff’g No. A098 635 172 (Immig. Ct. N.Y. City Aug. 20,
22 2007). We assume the parties’ familiarity with the
23 underlying facts and procedural history in this case.
24 Under the circumstances of this case, we review the
25 IJ’s decision as supplemented by the BIA. See Yan Chen v.
26 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
27 standards of review are well-established. Corovic v.
2
1 Mukasey, 519 F.3d 90, 95 (2d Cir. 2008); Salimatou Bah v.
2 Mukasey,
529 F.3d 99, 110 (2d Cir. 2008).
3 Following Diallo’s merits hearing, the IJ pretermitted
4 his untimely application for asylum and found him not
5 credible with respect to his withholding of removal and CAT
6 claims. Diallo did not challenge these findings with any
7 specificity on appeal to the BIA, a fact the BIA noted in
8 its decision. In his brief before this Court, Diallo for
9 the first time challenges the IJ’s pretermission of his
10 untimely asylum application and several of the bases for the
11 IJ’s adverse credibility determination. We deem these
12 arguments unexhausted and will not consider them. 1 See 8
13 U.S.C. § 1252(d)(1); Lin Zhong v. U.S. Dep’t of Justice, 480
14 F.3d 104, 107 (2d Cir. 2007). Although we may properly
15 consider arguments not raised before the BIA if the BIA
16 nonetheless addressed them, see Xian Tuan Ye v. DHS, 446
1
We lack jurisdiction to consider Diallo’s
unexhausted challenge to the IJ’s pretermission of his
untimely asylum application, and dismiss the petition for
review to that extent. See 8 U.S.C. 1252(d)(1).
Although Diallo’s failure to challenge the IJ’s adverse
credibility determination before the BIA implicates the
mandatory (but non-jurisdictional) issue exhaustion
requirement, see Lin Zhong v. U.S. Dep’t of Justice, 480
F.3d 104, 119-20 (2d Cir. 2007), we decline to consider
his arguments.
3
1 F.3d 289, 296-97 (2d Cir. 2006), we find that the BIA’s mere
2 reiteration of these findings was insufficient to excuse
3 Diallo’s failure to challenge them. See Steevenez v.
4 Gonzales,
476 F.3d 114, 117 (2d Cir. 2007).
5 Diallo’s failure to exhaust is fatal to his petition
6 for review.
7 For the foregoing reasons, the petition for review is
8 DENIED in part and DISMISSED in part. As we have completed
9 our review, any stay of removal that the Court previously
10 granted in this petition is VACATED, and any pending motion
11 for a stay of removal in this petition is DISMISSED as moot.
12 Any pending request for oral argument in this petition is
13 DENIED in accordance with Federal Rule of Appellate
14 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
15
16
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
19
20
4
