Filed: Apr. 06, 2012
Latest Update: Feb. 22, 2020
Summary: 11-690-ag Sinayoke v. Holder BIA A029 043 486 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: 11-690-ag Sinayoke v. Holder BIA A029 043 486 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 “..
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11-690-ag
Sinayoke v. Holder
BIA
A029 043 486
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 6th day of April, two thousand twelve.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 ROBERT D. SACK,
9 REENA RAGGI,
10 Circuit Judges.
11 _________________________________________
12
13 ADAMA SINAYOKE,
14 Petitioner,
15
16 v. 11-690-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _________________________________________
22
23 FOR PETITIONER: Theodore Vialet, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Nancy E. Friedman, Senior
27 Litigation Counsel; Kevin J. Conway,
28 Attorney, Office of Immigration
29 Litigation, United States Department
30 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED, that the petition for review
4 is DENIED.
5 Petitioner Adama Sinayoke, a native and citizen of
6 Mali, seeks review of the February 9, 2011, order of the BIA
7 denying his motion to reopen. In re Adama Sinayoke, No.
8 A029 043 486 (B.I.A. Feb. 9, 2011). We assume the parties’
9 familiarity with the underlying facts and procedural history
10 of the case. We review the BIA’s denial of a motion to
11 reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d
12 232, 233 (2d Cir. 2005) (per curiam).
13 The BIA’s denial of Sinayoke’s motion to reopen was not
14 an abuse of discretion because he failed to establish a
15 prima facie case for relief. See
Kaur, 413 F.3d at 233; INS
16 v. Abudu,
485 U.S. 94, 104-05 (1988). To establish asylum
17 eligibility based on future persecution, an applicant must
18 show that he subjectively fears persecution on account of
19 race, religion, nationality, membership in a particular
20 social group, or political opinion, and that this fear is
21 objectively reasonable. See 8 U.S.C. § 1101(a)(42);
22 Ramsameachire v. Ashcroft,
357 F.3d 169, 178 (2d Cir. 2004).
2
1 Generally, an applicant cannot meet this burden based on the
2 risk that a relative will suffer persecution without an
3 additional showing that he individually faces the same risk.
4 See Tao Jiang v. Gonzales, 500 F.3d 137, 141 (2d Cir. 2007).
5 The BIA reasonably found that Sinayoke did not
6 establish that he would be persecuted for his opposition to
7 female genital mutilation (“FGM”). Sinayoke submitted
8 letters from his brother and cousin acknowledging that his
9 family members are pressuring him to bring his daughter back
10 to Mali to undergo FGM. However, the letters do not
11 indicate that his family would physically harm him if he is
12 removed to Mali and does not return with his daughter, nor
13 does Sinayoke proffer evidence that the government would be
14 unwilling or unable to protect him from his family. See
15 Rizal v. Gonzales,
442 F.3d 84, 92 (2d Cir. 2006) (holding
16 that an alien can establish asylum eligibility based on
17 persecution by non-state actors if the government is
18 unwilling or unable to control them).
19 Because Sinayoke would not individually suffer
20 persecution, he relies solely on his daughter’s fear of
21 being subjected to FGM to establish his asylum eligibility.
22 The BIA, however, reasonably found this to be insufficient
3
1 because asylum eligibility cannot be based solely on the
2 risk of FGM being performed on a U.S. citizen child, absent
3 the risk of persecution to the applicant individually. See
4 Kone v. Holder, 596 F.3d 141, 153 (2d Cir. 2010); Matter of
5 A-K-, 24 I. & N. Dec. 275, 277 (B.I.A. 2007). Furthermore,
6 Sinayoke testified that he would not take his daughter back
7 to Mali if he was removed, and the record does not indicate
8 that she, as a U.S. citizen, would be forced to return to
9 Mali. Cf.
id. at 277 (holding that presumption that a child
10 will be forced to leave the United States with a parent that
11 is removed does not apply when the child is a U.S. citizen).
12 Accordingly, the BIA did not abuse its discretion in denying
13 Sinayoke’s motion to reopen because he failed to establish a
14 prima facie case that he is eligible for relief. See Abudu,
15 485 U.S. at 104-05.
16 For the foregoing reasons, the petition for review is
17 DENIED. As we have completed our review, any stay of
18 removal that the Court previously granted in this petition
19 is VACATED, and any pending motion for a stay of removal in
20 this petition is DISMISSED as moot. Any pending request for
21 oral argument in this petition is DENIED in accordance with
4
1 Federal Rule of Appellate Procedure 34(a)(2), and Second
2 Circuit Local Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5
6
5
