11-145-ag                                                                     BIA
         Dia v. Holder                                                          Bukszpan, IJ
                                                                               A096 264 311
                          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 21st day of February, two thousand twelve.
 5
 6       PRESENT:
 7                RICHARD C. WESLEY,
 8                RAYMOND J. LOHIER, JR.,
 9                SUSAN L. CARNEY,
10                    Circuit Judges.
11       _______________________________________
12
13       Ibrahima Dia,
14                Petitioner,
15
16                       v.                                     11-145-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               H. Raymond Fasano, New York, New
24                                     York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Stephen J. Flynn, Assistant
28                                     Director, Office of Immigration
29                                     Litigation; Robert Michael Stalzer,
30                                     Trial Attorney, Office of
31                                     Immigration Litigation, United
32                                     States Department of Justice,
33                                     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       Ibrahima Dia, a native and citizen of Mauritania, seeks

 6   review of a December 17, 2010, order of the BIA affirming

 7   the January 29, 2007, decision of Immigration Judge (“IJ”)

 8   Joanna Miller Bukszpan, which pretermitted his application

 9   for asylum and denied withholding of removal and relief

10   under the Convention Against Torture (“CAT”).      In re

11   Ibrahima Dia, No. A096 264 311 (B.I.A. Dec. 17, 2010), aff’g

12   No. A096 264 311 (Immig. Ct. New York, January 29, 2007).

13   We assume the parties’ familiarity with the underlying facts

14   and procedural history in this case.   Under the

15   circumstances of this case, we have reviewed both the IJ’s

16   and the BIA’s opinions “for the sake of completeness.”

17   Zaman v. Mukasey, 

, 237 (2d Cir. 2008).

18       Dia argues that ineffective assistance of counsel led

19   to the inconsistencies in his application that form the

20   basis of the agency’s adverse credibility determination.

21   Dia fails to challenge the agency’s pretermission of his

22   asylum claim for failure to demonstrate that he applied for

23   asylum within one year of his entry into the United States,

                                  2
 1   the agency’s adverse credibility finding, the agency’s

 2   finding that he failed to demonstrate a nexus to a protected

 3   ground, or its finding that he could internally relocate.

 4   The agency’s dispositive findings stand as valid bases for

 5   denying his claims.

 6          Dia argues for the first time before this Court that he

 7   was denied due process as a result of ineffective assistance

 8   of counsel.     Dia failed to exhaust this argument before the

 9   BIA either on appeal or through a motion to reopen with the

10   BIA.    See 8 U.S.C. § 1252(d)(1); Matter of Lozada, 19 I. &

11   N. Dec. 637 (BIA 1988).     In addition to the statutory

12   requirement that petitioners exhaust the categories of

13   relief they seek, 8 U.S.C. § 1252(d)(1), petitioners must

14   also raise to the BIA the specific issues they later raise

15   before this Court.     See Foster v. INS, 

, 78 (2d

16   Cir. 2004).     While not jurisdictional, we treat exhaustion

17   as mandatory.     Lin Zhong v. U.S. Dep’t of Justice, 

  104, 119-20 (2d Cir. 2007).     Accordingly, because Dia failed

19   to raise the issue of ineffective assistance of counsel on

20   appeal to the BIA, which failure the government raised in

21   its brief, we decline to consider the issue in the first

22   instance.


                                     3
1       For the foregoing reasons, the petition for review is

2   DENIED.   As we have completed our review, we VACATE this

3   Court’s March 30, 2011 temporary stay of removal and dismiss

4   petitioner’s referred motion for a stay of removal.

5                               FOR THE COURT:
6                               Catherine O’Hagan Wolfe, Clerk
7
8
9




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