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 GOVER** **NED 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 1 

### for the Second Circuit, held at the Daniel Patrick Moynihan 2 

### United States Courthouse, 500 Pearl Street, in the City of 3 

### New York, on the 21**st**

### day of February, two thousand twelve. 4 5 

### PRESENT: 6 

### RICHARD C. WESLEY, 7 

### RAYMOND J. LOHIER, JR., 8 

### SUSAN L. CARNEY, 9 

### Circuit Judges**.** 10



### _______________________________________ 11 12 

### Ibrahima Dia, 13 

### Petitioner**,** 14 15 

### v. 11-145-ag 16 

### NAC 17 

### ERIC H. HOLDER, JR., UNITED STATES 18 

### ATTORNEY GENERAL, 19 

### Respondent **.** 20



### _______________________________________ 21 22 

### FOR PETITIONER: H. Raymond Fasano, New York, New 23 

### York. 24 25 

### FOR RESPONDENT: Tony West, Assistant Attorney 26 

### General; Stephen J. Flynn, Assistant 27 

### Director, Office of Immigration 28 

### Litigation; Robert Michael Stalzer, 29 

### Trial Attorney, Office of 30 

### Immigration Litigation, United 31 

### States Department of Justice, 32 

### Washington, D.C. 33

### 2 UPON DUE CONSIDERATION of this petition for review of a 1 

### Board of Immigration Appeals (“BIA”) decision, it is hereby 2 

### ORDERED, ADJUDGED, AND DECREED, that the petition for review 3 

### is DENIED. 4 

### Ibrahima Dia, a native and citizen of Mauritania, seeks 5 

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

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

### Joanna Miller Bukszpan, which pretermitted his application 8 

### for asylum and denied withholding of removal and relief 9 

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

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

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

### We assume the parties’ familiarity with the underlying facts 13 

### and procedural history in this case. Under the 14 

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

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

### Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008). 17 

### Dia argues that ineffective assistance of counsel led 18 

### to the inconsistencies in his application that form the 19 

### basis of the agency’s adverse credibility determination. 20 

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

### asylum claim for failure to demonstrate that he applied for 22 

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

### 3 the agency’s adverse credibility finding, the agency’s 1 

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

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

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

### denying his claims. 5 

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

### was denied due process as a result of ineffective assistance 7 

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

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



### BIA. See8 U.S.C. § 1252(d)(1); Matter of Lozada , 19 I. & 10 

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

### requirement that petitioners exhaust the categories of 12 

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

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

### before this Court. See Foster v. INS, 376 F.3d 75, 78 (2d 15 

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

### as mandatory. Lin Zhong v. U.S. Dep’t of Justice , 480 F.3d 17 

### 104, 119-20 (2d Cir. 2007). Accordingly, because Dia failed 18 

### to raise the issue of ineffective assistance of counsel on 19 

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

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

### instance. 22

### 4 For the foregoing reasons, the petition for review is 1 

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

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

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


### FOR THE COURT: 5 

### Catherine O’Hagan Wolfe, Clerk 6 7 8 9