Dia v. Holder , 462 F. App'x 114 ( 2012 )


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  •          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, 
    514 F.3d 233
    , 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, 
    376 F.3d 75
    , 78 (2d
    16   Cir. 2004).     While not jurisdictional, we treat exhaustion
    17   as mandatory.     Lin Zhong v. U.S. Dep’t of Justice, 
    480 F.3d 18
       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
    4
    

Document Info

Docket Number: 11-145-ag

Citation Numbers: 462 F. App'x 114

Judges: Carney, Lohier, Raymond, Richard, Susan, Wesley

Filed Date: 2/21/2012

Precedential Status: Non-Precedential

Modified Date: 8/5/2023