09-1990-ag

Diallo v. Holder

BIA

Nelson, IJ

A098 635 172

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 30 day of March, two thousand ten. th

5

6 PRESENT:

7 Ralph K. Winter,

8 José A. Cabranes, 

9 Reena Raggi, 

10 Circuit Judges. 

11 _______________________________________

12

13 THIERNO DIALLO,

14 Petitioner, 

15

16 v. 09-1990-ag

17 NAC

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL,

20 Respondent.

21 ______________________________________

22

23 FOR PETITIONER: Thierno Diallo, pro se, Brooklyn,

24 New York.
2

1

2 FOR RESPONDENT: Tony West, Assistant Attorney

3 General; Emily Anne Radford,

4 Assistant Director; Jesse D. Lorenz,

5 Trial Attorney, Office of

6 Immigration Litigation, Civil

7 Division, United States Department

8 of Justice, Washington, D.C.

9

10 UPON DUE CONSIDERATION of this petition for review of a

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

12 ORDERED, ADJUDGED, AND DECREED that the petition for review

13 is DENIED in part and DISMISSED in part.

14 The Petitioner, Thierno Diallo, a native and citizen of

15 Guinea, seeks review of an April 13, 2009, order of the BIA

16 affirming the August 20, 2007, decision of Immigration Judge

17 (“IJ”) Barbara A. Nelson pretermitting his application for

18 asylum, and denying his application for withholding of

19 removal and relief under the Convention Against Torture

20 (“CAT”). In re Diallo, No. A098 635 172 (B.I.A. Apr. 13,

21 2009), aff’g No. A098 635 172 (Immig. Ct. N.Y. City Aug. 20,

22 2007). We assume the parties’ familiarity with the

23 underlying facts and procedural history in this case.

24 Under the circumstances of this case, we review the

25 IJ’s decision as supplemented by the BIA. See Yan Chen v.

26 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable

27 standards of review are well-established. Corovic v.
 We lack jurisdiction to consider Diallo’s 1

unexhausted challenge to the IJ’s pretermission of his

untimely asylum application, and dismiss the petition for

review to that extent. See 8 U.S.C. 1252(d)(1). 

Although Diallo’s failure to challenge the IJ’s adverse

credibility determination before the BIA implicates the

mandatory (but non-jurisdictional) issue exhaustion

requirement, see Lin Zhong v. U.S. Dep’t of Justice, 480

F.3d 104, 119-20 (2d Cir. 2007), we decline to consider

his arguments. 

3

1 Mukasey, 519 F.3d 90, 95 (2d Cir. 2008); Salimatou Bah v.

2 Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).

3 Following Diallo’s merits hearing, the IJ pretermitted

4 his untimely application for asylum and found him not

5 credible with respect to his withholding of removal and CAT

6 claims. Diallo did not challenge these findings with any

7 specificity on appeal to the BIA, a fact the BIA noted in

8 its decision. In his brief before this Court, Diallo for

9 the first time challenges the IJ’s pretermission of his

10 untimely asylum application and several of the bases for the

11 IJ’s adverse credibility determination. We deem these

12 arguments unexhausted and will not consider them. See 8

1

13 U.S.C. § 1252(d)(1); Lin Zhong v. U.S. Dep’t of Justice, 480

14 F.3d 104, 107 (2d Cir. 2007). Although we may properly

15 consider arguments not raised before the BIA if the BIA

16 nonetheless addressed them, see Xian Tuan Ye v. DHS, 446
4

1 F.3d 289, 296-97 (2d Cir. 2006), we find that the BIA’s mere

2 reiteration of these findings was insufficient to excuse

3 Diallo’s failure to challenge them. See Steevenez v.

4 Gonzales, 476 F.3d 114, 117 (2d Cir. 2007). 

5 Diallo’s failure to exhaust is fatal to his petition

6 for review.

7 For the foregoing reasons, the petition for review is

8 DENIED in part and DISMISSED in part. As we have completed

9 our review, any stay of removal that the Court previously

10 granted in this petition is VACATED, and any pending motion

11 for a stay of removal in this petition is DISMISSED as moot. 

12 Any pending request for oral argument in this petition is

13 DENIED in accordance with Federal Rule of Appellate

14 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

15

16

17 FOR THE COURT: 

18 Catherine O’Hagan Wolfe, Clerk

19

20