Filed: May 03, 2012
Latest Update: Feb. 12, 2020
Summary: 11-3141-ag Diombera v. Holder BIA Brennan, IJ A093 426 594 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
Summary: 11-3141-ag Diombera v. Holder BIA Brennan, IJ A093 426 594 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 T..
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11-3141-ag
Diombera v. Holder
BIA
Brennan, IJ
A093 426 594
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 3rd day of May, two thousand twelve.
5
6 PRESENT:
7 JON O. NEWMAN,
8 RALPH K. WINTER,
9 DENNY CHIN,
10 Circuit Judges.
11 _______________________________________
12
13 YOUNOUSS DIOMBERA,
14 Petitioner,
15
16 v. 11-3141-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Gary J. Yerman, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Ernesto H. Molina, Jr.,
27 Assistant Director; D. Nicholas
28 Harling, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 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 Younouss Diombera, a native and citizen of Mali, seeks
6 review of a July 6, 2011, order of the BIA, affirming the
7 September 29, 2009, decision of Immigration Judge (“IJ”)
8 Noel A. Brennan, which denied his application for asylum,
9 withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Younouss Diombera, No. A093
11 426 594 (B.I.A. July 6, 2011), aff’g No. A093 426 594
12 (Immig. Ct. N.Y. City Sept. 29, 2009). 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 have reviewed
16 both the IJ’s and BIA’s decisions. See Zaman v. Mukasey,
17 514 F.3d 233, 237 (2d Cir. 2008). The applicable standards
18 of review are well-established. See 8 U.S.C.
19 § 1252(b)(4)(B); Yanqin Weng v. Holder,
562 F.3d 510, 513
20 (2d Cir. 2009).
21 The agency reasonably concluded that Diombera failed to
22 establish that he suffered past persecution as his claim of
23 persecution was entirely based on the female genital
2
1 mutilation (“FGM”) to which his wife had been subjected.
2 See Tao Jiang v. Gonzales, 500 F.3d 137, 141 (2d Cir. 2007)
3 (stating that “[a]s a general principle, an asylum
4 applicant cannot claim past persecution based solely on harm
5 that was inflicted on a family member on account of that
6 family member’s political opinion or other protected
7 characteristic”); Shi Liang Lin v. U.S. Dep’t of Justice,
8
494 F.3d 296, 308 (2d Cir. 2007) (concluding “that the
9 statutory scheme unambiguously dictates that applicants can
10 become candidates for asylum relief only based on
11 persecution that they themselves have suffered”).
12 We have has recognized, however, that when an
13 “applicant’s family member was harmed as a means targeting
14 the applicant on some protected ground, that harm may
15 constitute persecution of the applicant.” Tao Jiang,
500
16 F.3d at 141. Moreover, we have recognized that, even where
17 the persecutor “neither directly harmed the applicant nor
18 harmed the family member in order to target the applicant,”
19 the harm to an applicant’s family member in conjunction with
20 other factors may be sufficiently severe to amount to past
21 persecution of the applicant.
Id. at 142 (citing Jorge-Tzoc
22 v. Gonzales,
435 F.3d 146, 150 (2d Cir. 2006)). In such
3
1 cases, however, the applicant, inter alia, must have been
2 “within the zone of risk when the family member was harmed,
3 and suffered some continuing hardship after the incident.”
4 Id. at 141-42.
5 Here, the BIA reasonably found that Diombera failed to
6 establish past persecution based solely on the harm suffered
7 by his wife. First, as the BIA noted, nothing in the record
8 suggested that Diombera’s wife had been subjected to FGM as
9 a means of targeting Diombera on account of a protected
10 ground, as Diombera testified that his wife’s family forced
11 his wife to undergo the FGM procedure for a second time
12 specifically because they believed that the first FGM
13 procedure (which was performed when his wife was a child)
14 was not done correctly. See Tao
Jiang, 500 F.3d at 141.
15 Moreover, Diombera was not in the “zone of risk” when his
16 wife’s family subjected her to FGM, as he concedes that he
17 did not directly witness the procedure. Furthermore,
18 Diombera failed to present any evidence that he had suffered
19 lasting physical, emotional, or psychological hardship
20 following the FGM procedure. See
Jorge-Tzoc, 435 F.3d at
21 150; Tao
Jiang, 500 F.3d at 141-42. Finally, contrary to
22 Diombera’s argument, any emotional or psychological harm
23 that Diombera may have suffered as a result of his wife
4
1 having been subjected to FGM does not in itself constitute
2 persecution of Diombera. Tao Jiang, 500 F.3d at 141-43
3 (finding no past persecution where forced abortion resulted
4 in illness and diminished health to petitioner’s mother,
5 imposing “anguish . . . and . . . economic loss” to him).
6 Absent past persecution, an applicant may establish
7 eligibility for asylum by showing that he subjectively fears
8 persecution on account of an enumerated ground and that his
9 fear is objectively reasonable. See Ramsameachire v.
10 Ashcroft,
357 F.3d 169, 178 (2d Cir. 2004). In support of
11 his claim of a well-founded fear, Diombera argues only that
12 he and his wife desire to have more children, and that he
13 would oppose any attempts to subject his future daughter to
14 FGM. As the BIA found, Diombera’s fear that he would be
15 harmed while trying to protect a daughter who had not yet
16 been born is too speculative to be objectively reasonable.
17 See Jian Xing Huang v. INS,
421 F.3d 125, 129 (2d Cir. 2005)
18 (finding that an asylum applicant could not base a well-
19 founded fear that he might be subjected to persecution on
20 his desire to have more children in violation of China’s
21 family planning policy because the fear was “speculative”);
22 Lecaj v. Holder,
616 F.3d 111, 117 (2d Cir. 2010) (finding
23 that a “speculative” anxiety does not make a fear of future
24 persecution objectively reasonable). Therefore, the agency
5
1 did not err in finding that Diombera failed to demonstrate a
2 well-founded fear of persecution. See Ramsameachire, 357
3 F.3d at 178.
4 Because Diombera failed to establish past persecution
5 or a well-founded fear of future persecution on account of a
6 protected ground, the agency did not err in denying
7 Diombera’s application for asylum. Because he failed to
8 meet the burden of asylum, Diombera necessarily failed to
9 meet the higher burdens for withholding of removal and CAT
10 relief, as those claims were based on the same factual
11 predicate. See Paul v. Gonzales,
444 F.3d 148, 156 (2d Cir.
12 2006).
13 For the foregoing reasons, the petition for review is
14 DENIED. As we have completed our review, any stay of
15 removal that the Court previously granted in this petition
16 is VACATED, and any pending motion for a stay of removal in
17 this petition is DISMISSED as moot. Any pending request for
18 oral argument in this petition is DENIED in accordance with
19 Federal Rule of Appellate Procedure 34(a)(2), and Second
20 Circuit Local Rule 34.1(b).
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk
23
6
