09-2737-ag

G undogdu v. Holder BIA Reid, IJ A099 759 992 

### UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT



# SUM MARY ORDER

RULINGS B Y 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 27 day of May, two thousand ten. th 5 6 PRESENT: 7 GUIDO CALABRESI, 8 PETER W. HALL, 9 DENNY CHIN, 10 Circuit Judges. 11

_______________________________________ 12 13 ISMAIL GUNDOGDU, 14 Petitioner , 15 16 v. 09-2737-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent

. 21

____________________________________________________________ 22 23 FOR PETITIONER: Jay Ho Lee, New York, New York. 24 25 FOR RESPONDENT: Tony West, Assistant Attorney 26 General; Shelley R. Goad, Assistant 27 Director; Dalin R. Holyoak, Trial 28 Attorney, Office of Immigration 29 Litigation, United States Department 30 of Justice, Washington, D.C. 3 1 UPON DUE CONSIDERATION of this petition for review of a 3 2 Board of Immigration Appeals (“BIA”) decision, it is hereby2 1 ORDERED, ADJUDGED, AND DECREED, that the petition for review 2 is DENIED. 3 4 Ismail Gundogdu, a native and citizen of Turkey, seeks 5 review of a May 29, 2009, order of the BIA affirming the May 6 5, 2008, decision of Immigration Judge (“IJ”) John B. Reid, 7 which denied his application for asylum, withholding of 8 removal, and relief under the Convention Against Torture 9 (“CAT”). In re Ismail Gundogdu , No. A099 759 992 (B.I.A. 1 0 May 29, 2009), aff’gNo. A099 759 992 (Immig. Ct. Batavia 1 1 May 5, 2008). We assume the parties’ familiarity with the 1 2 underlying facts and procedural history in this case. 13 1 4 Under the circumstances of this case, we review the 1 5 IJ’s decision as supplemented by the BIA’s decision. See 16 Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The 1 7 applicable standards of review are well-established. See 8 1 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007). 19

20 I. CAT Relief

2 1 Contrary to the government’s argument, we find that 2 2 Gundogdu sufficiently exhausted his CAT claim before the BIA. 23 See 8 U.S.C. § 1252(d)(1 (providing that this Court 2 4 “may review a final order of removal only if . . . the alien 2 5 has exhausted all administrative remedies available to the 2 6 alien as of right”). In his appeal brief, Gundogdu cited 2 7 the CAT standard and made arguments specific to CAT relief. 2 8 Although these arguments were somewhat conclusory, the BIA, 2 9 nonetheless, addressed the IJ’s denial of Gundogdu’s CAT 3 0 claim, finding that he had presented no “persuasive arguments on appeal.” 3 1 Under these circumstances, we find 3 2 that Gundogdu exhausted his challenge to the IJ’s denial of CAT relief. See 8 U.S.C. § 1252(d)(1) 33 ; see also Waldron v. 34 INS , 17 F.3d 511, 515 n.7 (2d Cir. 1994) (finding that if 3 5 the BIA addresses issues not raised by a petitioner, those 3 6 issues may be considered exhausted and may be reviewed by this Court). 3 7 Nonetheless, that challenge fails. 38 3 9 Contrary to Gundogdu’s argument, the record does not 4 0 demonstrate that the agency failed to consider his testimony 4 1 or the evidence he submitted in finding him ineligible for 4 2 CAT relief. See Xiao Ji Chen v. U.S. Dep’t of Justice , 471We note that although the BIA is without 1 jurisdiction to consider constitutional arguments, it does have jurisdiction to consider challenges to the procedural fairness of removal proceedings. Thus, any such challenge must be raised to the BIA in order to be preserved. See United States v. Gonzalez-Roque , 301 F.3d 39, 47-48 (2d Cir. 2002)

3 F.3d 315, 338 n.17 1 . Gundogdu claimed to fear torture at the 2 hands of both the Turkish government and the mafia. With 3 respect to Gundogdu’s fear that he would be imprisoned in 4 Turkey and tortured in prison, this Court has found it to be 5 insufficient to establish eligibility for CAT relief claims 6 such as this one when the applicant fears being imprisoned 7 in the designated country for violating a generally 8 applicable law but presents only generalized evidence that 9 torture occurs in the prisons there. See Mu Xiang Lin v. 10 U.S. Dep’t of Justice , 432 F.3d 156, 159-60 (2d Cir. 2005); 11 Mu-Xing Wang v. Ashcroft , 320 F.3d 130, 143-44 (2d Cir. 2003). 12 13 1 4 With respect to Gundogdu’s fear of the mafia, the 1 5 agency reasonably determined that the particular single 1 6 beating Gundogdu endured did not rise to the level of 1 7 torture. See Kyaw Zwar Tun v. INS , 445 F.3d 554, 567 (2d Cir. 2006). 18 Thus, even assuming that Gundogdu was likely to 1 9 experience the same mistreatment in the future, that 2 0 mistreatment by the mafia would not give rise to a 2 1 meritorious CAT claim. See8 C.F.R. §§ 1208.16(c), 1208.17. 22 II. Due Process Claim 23 24 2 5 Before the BIA, Gundogdu argued that the IJ did not 2 6 afford him an adequate opportunity to obtain counsel because 2 7 he failed to take into account the fact that Gundogdu was 2 8 incarcerated during his proceedings and was unable to speak English 29

. In his brief to this Court, however, he argues 3 0 that he suffers from mental illness, and that it should have 3 1 been apparent to the IJ that he was unable knowingly to 3 2 waive his right to counsel and represent himself. The 3 3 Government correctly asserts that this argument is “entirely 3 4 new.” Accordingly, we decline to consider it. See Lin 1 35 Zhong v. U.S. Dep’t of Justice , 480 F.3d 104, 124 (2d Cir.4 1 2007) (describing the issue exhaustion requirement as an 2 “affirmative defense subject to waiver”). 3 4 To the extent Gundogdu continues to advance the more 5 general argument that the IJ violated his due process rights 6 by not affording him an adequate opportunity to obtain an attorney, that argument fails. 7 In the immigration context, 8 due process requires that the alien be afforded a full 9 opportunity to present his claims. See Burger v. Gonzales, 498 F.3d 131, 134 (2d Cir. 2007) 10

. Here, the IJ fully 1 1 explained to Gundogdu what was occurring at every step of 1 2 the proceedings. He also granted Gundogdu numerous 1 3 continuances to obtain counsel and to have his evidence 1 4 translated. At the merits hearing, Gundogdu explained that 1 5 he had been beaten by the mafia in Turkey and feared future 1 6 harm because he still owed money to the mafia. He further 1 7 claimed that he would also be imprisoned for aiding a friend 1 8 in fraudulently obtaining health insurance, and for illegally obtaining a second passport. 1 9 Under these 2 0 circumstances, we find that Gundogdu was given a full and 2 1 fair opportunity to present his claim. See Michel v. INS , 2 2 206 F.3d 253, 259 (2d Cir. 2000) (concluding that because 2 3 the IJ ensured the applicant was fully apprised of what was 2 4 taking place during the course of his proceedings and 2 5 continued the proceedings several times to afford the 2 6 applicant an opportunity to submit complete and accurate 2 7 information, “the IJ acted, procedurally, exactly as we hope 2 8 that an IJ would . . . .”); see also Burger, 498 F.3d at 134. 29 30 3 1 For the foregoing reasons, the petition for review is 3 2 DENIED. As we have completed our review, any stay of 3 3 removal that the Court previously granted in this petition 3 4 is VACATED, and any pending motion for a stay of removal in 3 5 this petition is DISMISSED as moot. Any pending request for 3 6 oral argument in this petition is DENIED in accordance with 3 7 Federal Rule of Appellate Procedure 34(a)(2), and Second 3 8 Circuit Local Rule 34.1(b). 39 4 0 FOR THE COURT: Catherine O’Hagan Wolfe, Clerk 41 42 43