Alaka v. Holder , 413 F. App'x 391 ( 2011 )

09-3551-ag
Alaka v. Holder
BIA
Nelson, IJ
A091 581 986
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 15th day of March, two thousand eleven.
PRESENT:
PIERRE N. LEVAL,
PETER W. HALL,
DEBRA ANN LIVINGSTON,
Circuit Judges.
______________________________________
OYENIKE ALAKA, ALSO KNOWN AS EVELYN
DEBBIE ANTHONY,
Petitioner,
v. 09-3551-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL, JANET NAPOLITANO,
UNITED STATES DEPARTMENT OF HOMELAND
SECURITY
Respondents.
______________________________________
FOR PETITIONER: Joseph C. Hohenstein, Philadelphia,
Pennsylvania.
FOR RESPONDENTS: Tony West, Assistant Attorney
General; Michelle Gorden Latour,
Assistant Director; P. Michael
Truman, Trial Attorney, Office of
Immigration Litigation, 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 in part and DISMISSED in part.
Oyenike Alaka, a native and citizen of Nigeria, seeks
review of a July 24, 2009, order of the BIA affirming the
June 27, 2008, decision of Immigration Judge (“IJ”) Barbara
Nelson which denied her application for withholding of
removal. In re Oyenike Alaka, No. A091 581 986 (B.I.A. July
24, 2009), aff’g No. A091 581 986 (Immig. Ct. N.Y. City,
June 27, 2008). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
I. Jurisdiction
Insofar as the majority of Alaka’s arguments are
concerned, we generally lack jurisdiction to review a final
order of removal of an alien convicted of certain crimes.
We have jurisdiction only to consider constitutional claims
and questions of law, see 8 U.S.C. § 1252(a)(2)(C), (D), and
in this latter regard, we “lack jurisdiction to review any
legal argument that is so insubstantial and frivolous as to
be inadequate to invoke federal-question jurisdiction,”
Barco-Sandoval v. Gonzales, 516 F.3d 35, 40 (2d Cir. 2008).
Here, it is undisputed that Alaka was convicted of a crime
involving moral turpitude. See Alaka v. Attorney General of
the U.S., 456 F.3d 88, 102 n.24 (3d Cir. 2006). Our
jurisdiction, therefore, is limited strictly to
constitutional claims or questions of law Alaka has raised
in her petition for review. See 8 U.S.C. § 1252(a)(2)(C),
(D).
Alaka has also challenged the BIA member’s decision to
resolve a particular appeal unilaterally, without opinion,
pursuant to 8 C.F.R. § 1003.1(e)(4), rather than referring
it to a three-member panel. We lack jurisdiction to review
that decision, and we dismiss Alaka’s petition for review
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with respect to that claim. Kambolli v. Gonzales, 449 F.3d
454, 463 (2d Cir. 2006).
II. Fairness of Proceedings
A. BIA’s Decision to Remand to the IJ
Contrary to Alaka’s argument that internal relocation
is solely a legal determination that the BIA could have
addressed without remand to the IJ, an internal relocation
analysis requires factual findings regarding conditions, and
the reasonableness of relocation, in the country of removal.
See 8 C.F.R. § 208.13(b)(3). Because the IJ who originally
presided over Alaka’s proceedings specifically declined to
make such findings, the BIA’s remand to the IJ was
appropriate. 8 C.F.R. § 1003.1(d)(3)(iv) (stating that,
aside from taking administrative notice of commonly known
facts, the BIA may not conduct fact finding).
B. Venue
Although Alaka argues that venue should have remained
in Pennsylvania absent “exceptional circumstances,” the IJ
in Pennsylvania did not err in granting the government’s
motion to change venue based on a showing of “good cause,”
to wit, Alaka was living in New York City following her
release from detention. See 8 C.F.R. § 1003.20(b); Lovell
v. INS, 52 F.3d 458, 460 (2d Cir. 1995). The IJ having
applied the appropriate legal standard, Alaka’s criminal
conviction precludes us from further reviewing the IJ’s
decision with respect to change of venue. 8 U.S.C.
§ 1252(a)(2)(C). We thus deny Alaka’s petition to the
extent she challenges the IJ’s application of law to decide
to change venue and dismiss it to the extent she challenges
the IJ’s underlying decision to change venue.
Moreover, for the reasons discussed below, Alaka has
failed to establish that the change in venue caused any
prejudice to her proceedings. Lovell, 52 F.3d at 461.
C. Proceedings Before the IJ in New York
Alaka argues that her proceedings were unfair because
the IJ in New York “placed herself in the role of a
prosecutor,” did not inform the parties that she would be
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making a past persecution determination, ignored what Alaka
asserts was a determination by the Pennsylvania IJ that
Alaka had suffered past persecution, and denied withholding
of removal despite the government’s failure to elicit
additional testimony from Alaka or submit any evidence
regarding internal relocation. To the extent such arguments
can be construed as a due process claim, Alaka has failed to
establish that she did not receive a full and fair hearing
which provided a meaningful opportunity to be heard. See Li
Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 104-05 (2d
Cir. 2006). The New York IJ did not ignore a prior past
persecution determination made by the IJ in Pennsylvania.
Although the IJ in Pennsylvania alluded to Alaka’s past
harm, he found Alaka was ineligible for withholding of
removal because her past criminal conviction was for a
particularly serious crime. He thus declined to make a
definitive finding regarding whether Alaka had experienced
past persecution, determining only that the testimony was
credible. Because whether past persecution has occurred
must be determined at the threshold of an internal
relocation analysis, see 8 C.F.R. § 208.13(b)(3), the New
York IJ did not exceed the scope of the Third Circuit’s
remand. Nor did the IJ make a determination on an issue as
to which the parties had no notice or opportunity to be
heard. The IJ considered Alaka’s testimony and supporting
documents submitted at her hearing before the IJ in
Pennsylvania. See Xiao Ji Chen v. U.S. Dep’t of Justice,
471 F.3d 315, 337 n.17 (2d Cir. 2006) (presuming that the
agency “has taken into account all of the evidence before
[it], unless the record compellingly suggests otherwise”).
The IJ also afforded both parties the opportunity to present
additional testimony or documents. In response, Alaka’s
counsel stated that further testimony was unnecessary. In
addition, the BIA did address Akala’s arguments regarding
the fairness of her proceedings. Nothing in the record,
therefore, suggests that Alaka was deprived of fundamental
fairness or denied a full and fair opportunity to present
her claim, and we deny her petition to the extent it asserts
that the administrative proceedings were unfair. See Li Hua
Lin, 453 F.3d 99 at 104-05.
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III. Withholding of Removal
A. Past Persecution
Alaka argues that the agency erred by determining that
the harm she suffered did not constitute persecution. As an
initial matter, Alaka’s argument that Third Circuit law
should apply is unavailing because, as she concedes, the law
applicable to claims for withholding of removal is not
substantively different in this Circuit. Indeed both this
Court and the Third Circuit have issued decisions agreeing
with the BIA’s definition of past persecution as set forth
in Matter of Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985).
See Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341
(2d Cir. 2006); see also Fatin v. INS, 12 F.3d 1233, 1240
(3d Cir.1993).
The harm Alaka asserts she suffered—threats and being
pushed when she attempted to stop Oodua People’s Congress
members from beating her husband—do not amount to
persecution. See Ivanishvili, 433 F.3d at 342; Fatin, 12
F.3d at 1240; see also Gui Ci Pan v. U.S. Attorney Gen., 449
F.3d 408, 412 (2d Cir. 2006) (noting that courts have
“rejected [persecution] claims involving ‘unfulfilled’
threats”); Zhen Hua Li v. Att’y Gen., 400 F.3d 157, 165 (3d
Cir. 2005) (holding that unfulfilled “threats of physical
mistreatment, detention, or sterilization” were not
“sufficiently imminent or concrete for the threats
themselves to be considered past persecution”). Nor may
Alaka base her claim on harm her husband suffered because
she did not establish that her husband’s persecutors had
imputed his opinions to her. See Tao Jiang v. Gonzales, 500
F.3d 137, 141 (2d Cir. 2007); see also Shi Liang Lin v. U.S.
Dep’t of Justice, 494 F.3d 296, 308 (2d Cir. 2007) (“[T]he
statutory scheme unambiguously dictates that applicants can
become candidates for asylum relief only based on
persecution that they themselves have suffered or must
suffer.”). Accordingly, we deny that portion of Alaka’s
petition asserting that the IJ erroneously determined that
the harm she suffered did not constitute persecution.
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B. Internal Relocation
Because Alaka did not suffer past persecution, the IJ
properly placed the burden on her to establish that it was
unreasonable for her to relocate within Nigeria. See
8 C.F.R. § 208.13(b)(3). Contrary to Alaka’s assertions
that the IJ failed to apply the reasonableness standard or
ignored evidence in the record, the IJ determined that
Alaka’s testimony and supporting evidence were “insufficient
[to establish] that it would be unreasonable, as opposed to
inconvenient, difficult, or unpleasant to relocate.” See
Xiao Ji Chen, 471 F.3d at 337 n.17. Because Alaka’s
challenge is to the IJ’s factual determinations, which, due
to Alaka’s criminal conviction, we lack jurisdiction to
review. 8 U.S.C. § 1252(a)(2)(C); Barco-Sandoval, 516 F.3d
at 40, we dismiss that portion of her petition challenging
the agency’s internal relocation finding.
For the foregoing reasons, the petition for review is
DENIED in part and DISMISSED in part. 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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