09 -19 90 -ag

Diallo v. Holder BIA Nelson, IJ A098 635 172 

### UNITED STATES COURT OF AP PEALS FOR T HE SE COND CIRCU IT 

# SUM MARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2 0 07, 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 1 0 UPON DUE CONSIDERATION of this petition for review of a 1 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 1 2 ORDERED, ADJUDGED, AND DECREED that the petition for review 1 3 is DENIED in part and DISMISSED in part. 1 4 The Petitioner, Thierno Diallo, a native and citizen of 1 5 Guinea, seeks review of an April 13, 2009, order of the BIA 1 6 affirming the August 20, 2007, decision of Immigration Judge 1 7 (“IJ”) Barbara A. Nelson pretermitting his application for 1 8 asylum, and denying his application for withholding of 1 9 removal and relief under the Convention Against Torture 2 0 (“CAT”). In re Diallo , No. A098 635 172 (B.I.A. Apr. 13, 2 1 2009), aff’gNo. A098 635 172 (Immig. Ct. N.Y. City Aug. 20, 2 2 2007). We assume the parties’ familiarity with the 2 3 underlying facts and procedural history in this case. 2 4 Under the circumstances of this case, we review the 2 5 IJ’s decision as supplemented by the BIA. See Yan Chen v. 26 Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). The applicable 2 7 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 1 0 untimely asylum application and several of the bases for the 1 1 IJ’s adverse credibility determination. We deem these 1 2 arguments unexhausted and will not consider them. See 8 1 1 3 U.S.C. § 1252(d)(1); Lin Zhong v. U.S. Dep’t of Justice , 480 1 4 F.3d 104, 107 (2d Cir. 2007). Although we may properly 1 5 consider arguments not raised before the BIA if the BIA 1 6 nonetheless addressed them, see Xian Tuan Ye v. DHS , 4464 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 1 0 granted in this petition is VACATED, and any pending motion 1 1 for a stay of removal in this petition is DISMISSED as moot. 1 2 Any pending request for oral argument in this petition is 1 3 DENIED in accordance with Federal Rule of Appellate 1 4 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b). 15 16 1 7 FOR THE COURT: 1 8 Catherine O’Hagan Wolfe, Clerk 19 20