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

New York, on the 21st 4 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.
2

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,
3

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.
4

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

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