Filed: Jun. 01, 2012
Latest Update: Feb. 12, 2020
Summary: 11-1193-ag Banda v. Holder BIA Straus, IJ A076 197 107 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: 11-1193-ag Banda v. Holder BIA Straus, IJ A076 197 107 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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11-1193-ag
Banda v. Holder
BIA
Straus, IJ
A076 197 107
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 1st day of June, two thousand twelve.
PRESENT:
JON O. NEWMAN,
REENA RAGGI,
PETER W. HALL,
Circuit Judges.
_____________________________________
MIRRIEM JALAFI BANDA,
Petitioner,
v. 11-1193-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Glenn T. Terk, Wethersfield, CT.
FOR RESPONDENT: Tony West, Assistant Attorney General;
Richard M. Evans, Assistant Director;
Allen W. Hausman, Senior Litigation
Counsel, Office of Immigration
Litigation, Civil Division, United States
Department of Justice, 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.
Petitioner Mirriem Jalafi Banda, a native and citizen
of Malawi, seeks review of a March 1, 2011, order of the BIA
affirming the March 19, 2009, decision of Immigration Judge
(“IJ”) Michael W. Straus denying her application for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Mirriem Jalafi Banda, No.
A076 197 107 (B.I.A. Mar. 1, 2011), aff’g No. A076 197 107
(Immig. Ct. Hartford Mar. 19, 2009). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
Under the circumstances of this case, we have reviewed
the IJ’s decision as supplemented by the BIA. See Yan Chen
v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
applicable standards of review are well-established. See 8
U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder,
562 F.3d 510,
513 (2d Cir. 2009).
Before the agency, Banda argued that she would be
tortured and persecuted based on her marriage to a man who
had been tortured by the Malawian government under the
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dictatorship of President Hastings Kamuzu Banda. The IJ
denied her claim, noting that the dictatorship had ended and
the dictator’s supporters no longer controlled the Malawian
central government.
Banda now argues that the IJ erred in his analysis
because he did not consider her claim that because Malawi is
a tribal society, her husband’s enemies are still powerful
in the part of Malawi that she is from. This argument is
unavailing because both the IJ and the BIA explicitly
addressed this claim. The agency concluded that Banda did
not have a well-founded fear of future persecution because
twenty years had passed since her husband was tortured,
there was no evidence that anyone in Malawi was still
interested in him, and neither he nor Banda were involved in
contemporary Malawian politics. We defer to the agency’s
assessment of the record. See Castro v. Holder, 597 F.3d
93, 99 (2d Cir. 2010) ("The agency’s findings of fact are
‘conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.’” (quoting 8 U.S.C.
§ 1252(b)(4)(B)).
Banda also argues that she will be harmed because of
the general violence, torture, and gender discrimination in
Malawi. However, we will not address this argument because
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she did not raise it before the BIA. Lin Zhong v. U.S.
Dep’t of Justice, 480 F.3d 104, 107 n.1, 122 (2d Cir. 2007)
(reaffirming that this Court “may consider only those issues
that formed the basis for [the BIA’s] decision”).
In sum, substantial evidence supports the agency's
determination that Banda did not establish her eligibility
for asylum or withholding of removal by demonstrating a
well-founded fear of future persecution. See Ramsameachire
v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). Because
Banda’s claim for CAT relief was based on the same factual
predicate as her claim for asylum–her fear of persecution
based on her marriage–the agency also did not err in denying
CAT relief. See Paul v. Gonzales,
444 F.3d 148, 156 (2d
Cir. 2006).
We note that Banda’s husband, who has HIV, has acquired
permanent resident status and has filed a petition on her
behalf, presumably an I-130 petition for an alien relative,
which, if granted, would allow her to adjust to permanent
resident status when a visa becomes available. Banda and
her husband are parents of a U.S. citizen child. Thus,
Banda, who has been in this country since 1992, has
compelling equities to avoid or at least delay removal to
Malawi.
4
Various administrative forms of relief appear to be
worth serious consideration. The Executive Branch might
delay removal, as a matter of discretion, pending decision
by USCIS on the pending petition to adjust status. Or the
BIA could reopen sua sponte and continue the removal
proceeding pending the USCIS decision. Or the Government
might agree to jointly file a motion to reopen, which would
avoid the time limit on a motion to reopen. Having denied
the petition for review, we have no jurisdiction to require
any specific further action, but we would appreciate being
advised on whatever steps Executive Branch officials might
take in view of Banda’s circumstances.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and 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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