Filed: Oct. 22, 2010
Latest Update: Feb. 21, 2020
Summary: 09-3396-ag Dieng v. Holder BIA Weisel, IJ A093 451 733 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: 09-3396-ag Dieng v. Holder BIA Weisel, IJ A093 451 733 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 N..
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09-3396-ag
Dieng v. Holder
BIA
Weisel, IJ
A093 451 733
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 22nd day of October, two thousand ten.
5
6 PRESENT:
7 JOSEPH M. McLAUGHLIN,
8 JOSÉ A. CABRANES,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _______________________________________
12
13 IBRAHIMA DIENG, ALSO KNOWN AS DIENG
14 IBRAHIMA,
15 Petitioner,
16
17 v. 09-3396-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONER: Brian I. Kaplan, Goldberg & Kaplan,
25 LLP, New York, New York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Cindy S. Ferrier, Senior
29 Litigation Counsel; R. Alexander
30 Goring, Trial Attorney, Office of
31 Immigration Litigation, Civil
32 Division, United States Department
33 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 Ibrahima Dieng, a native and citizen of
6 Senegal, seeks review of a July 17, 2009, order of the BIA
7 affirming the July 7, 2008, decision of Immigration Judge
8 (“IJ”) Robert D. Weisel denying Dieng’s application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Ibrahima Dieng,
11 No. A093 451 733 (B.I.A. July 17, 2009), aff’g No. A093 451
12 733 (Immig. Ct. N.Y. City July 7, 2008). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we review the
16 IJ’s decision as supplemented by the BIA’s decision. See
17 Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well-established.
19 See 8 U.S.C. § 1252(b)(4)(B); Salimatou Bah v. Mukasey, 529
20 F.3d 99, 110 (2d Cir. 2008).
21 Although Dieng asserts that he has suffered
22 “persecution” and “torture,” based on his and his family’s
2
1 experience in Senegal, he does not meaningfully challenge
2 the agency’s determination that he failed to establish past
3 persecution. As the agency noted, and Dieng does not
4 dispute, Dieng was never harmed or mistreated while in
5 Senegal. His sole argument for past persecution is entirely
6 based on the suffering and killing of his family members
7 because of their suspected support for the MFDC. However,
8 “[a]s a general principle, an asylum applicant cannot claim
9 past persecution based solely on harm that was inflicted on
10 a family member on account of that family member’s political
11 opinion or other protected characteristic.” Tao Jiang v.
12 Gonzales, 500 F.3d 137, 141 (2d Cir. 2007). Although we
13 have recognized that there may exist circumstances where
14 harm to an applicant’s family member in conjunction with
15 other factors may be sufficiently severe to amount to past
16 persecution, such as a young child witnessing severe harm to
17 their family members, see Jorge-Tzoc v. Gonzales,
435 F.3d
18 146, 150 (2d Cir. 2006), such circumstances do not exist
19 here. Accordingly, no presumption applies and Dieng was
20 required to establish that he had a well-founded fear of
21 future persecution.
3
1 Substantial evidence supports the agency’s conclusion
2 that Dieng failed to establish a likelihood of persecution
3 upon his return to Senegal. Although Dieng argues that the
4 IJ failed to consider his testimony and evidence concerning
5 the persecution of MFDC members, the record does not compel
6 this conclusion. See Xiao Ji Chen v. U.S. Dep’t of Justice,
7 471 F.3d 315, 337 n.17 (2d Cir. 2006). Indeed, the IJ
8 credited Dieng’s testimony that his relatives were killed by
9 the Senegalese authorities because of their perceived
10 support for the MFDC, but found that: (1) Dieng was not a
11 member of the MFDC; (2) Dieng did not participate in MFDC
12 activities; (3) Dieng was never threatened by the Senegalese
13 authorities at the time his relatives were killed; and
14 (4) despite Dieng’s testimony that Senegalese authorities
15 questioned his wife about his whereabouts, there was no
16 indication that the authorities were interested in him
17 because of his perceived involvement with the MFDC. As the
18 record supports these findings, the IJ reasonably found that
19 Dieng had not met his burden of establishing a likelihood of
20 persecution upon his return to Senegal.
21 Dieng’s argument that the deaths of his relatives
22 establish that he too will be persecuted because of his
4
1 perceived support for the MFDC is not supported by the
2 record. As the IJ explained, Dieng himself was not involved
3 with the MFDC and did not submit evidence to show that the
4 government has particular suspicions of his involvement.
5 His statements that soldiers have occupied his house and
6 government authorities have asked his wife whether he is in
7 the country do not compel the inference that the government
8 now suspects Dieng of involvement with the MFDC. See Siewe
9 v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) (“Where the
10 evidence would support either of competing inferences, the
11 fact that this Court might have drawn one inference does not
12 entitle it to overturn the trial court’s choice of the
13 other.”). Accordingly, substantial evidence supports the
14 IJ’s conclusion that Dieng failed to establish a likelihood
15 of persecution if he returned to Senegal.
16 Finally, because Dieng’s claim for CAT relief was based
17 on the same factual predicate as his claim for withholding
18 of removal, the agency did not err in denying CAT relief.
19 See Paul v. Gonzales,
444 F.3d 148, 156 (2d Cir. 2006).
20 For the foregoing reasons, the petition for review is
21 DENIED. As we have completed our review, any stay of
22 removal that the Court previously granted in this petition
5
1 is VACATED, and any pending motion for a stay of removal in
2 this petition is DISMISSED as moot. Any pending request for
3 oral argument in this petition is DENIED in accordance with
4 Federal Rule of Appellate Procedure 34(a)(2), and Second
5 Circuit Local Rule 34.1(b).
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
8
9
6
