09-2737-ag

Gundogdu v. Holder

BIA

Reid, IJ

A099 759 992

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 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.

31 UPON DUE CONSIDERATION of this petition for review of a

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

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.

10 May 29, 2009), aff’g No. A099 759 992 (Immig. Ct. Batavia

11 May 5, 2008). We assume the parties’ familiarity with the

12 underlying facts and procedural history in this case.

13

14 Under the circumstances of this case, we review the

15 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

17 applicable standards of review are well-established. See 8

18 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of

19 Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007). 

20 I. CAT Relief

21 Contrary to the government’s argument, we find that

22 Gundogdu sufficiently exhausted his CAT claim before the

23 BIA. See 8 U.S.C. § 1252(d)(1 (providing that this Court

24 “may review a final order of removal only if . . . the alien

25 has exhausted all administrative remedies available to the

26 alien as of right”). In his appeal brief, Gundogdu cited

27 the CAT standard and made arguments specific to CAT relief. 

28 Although these arguments were somewhat conclusory, the BIA,

29 nonetheless, addressed the IJ’s denial of Gundogdu’s CAT

30 claim, finding that he had presented no “persuasive

31 arguments on appeal.” Under these circumstances, we find

32 that Gundogdu exhausted his challenge to the IJ’s denial of

33 CAT relief. See 8 U.S.C. § 1252(d)(1); see also Waldron v.

34 INS, 17 F.3d 511, 515 n.7 (2d Cir. 1994) (finding that if

35 the BIA addresses issues not raised by a petitioner, those

36 issues may be considered exhausted and may be reviewed by

37 this Court). Nonetheless, that challenge fails. 

38

39 Contrary to Gundogdu’s argument, the record does not

40 demonstrate that the agency failed to consider his testimony

41 or the evidence he submitted in finding him ineligible for

42 CAT relief. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471
We 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

1 F.3d 315, 338 n.17. 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.

12 2003).

13

14 With respect to Gundogdu’s fear of the mafia, the

15 agency reasonably determined that the particular single

16 beating Gundogdu endured did not rise to the level of

17 torture. See Kyaw Zwar Tun v. INS, 445 F.3d 554, 567 (2d

18 Cir. 2006). Thus, even assuming that Gundogdu was likely to

19 experience the same mistreatment in the future, that

20 mistreatment by the mafia would not give rise to a

21 meritorious CAT claim. See 8 C.F.R. §§ 1208.16(c), 1208.17.

22

23 II. Due Process Claim

24

25 Before the BIA, Gundogdu argued that the IJ did not

26 afford him an adequate opportunity to obtain counsel because

27 he failed to take into account the fact that Gundogdu was

28 incarcerated during his proceedings and was unable to speak

29 English. In his brief to this Court, however, he argues

30 that he suffers from mental illness, and that it should have

31 been apparent to the IJ that he was unable knowingly to

32 waive his right to counsel and represent himself. The

33 Government correctly asserts that this argument is “entirely

34 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

7 attorney, that argument fails. 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,

10 498 F.3d 131, 134 (2d Cir. 2007). Here, the IJ fully

11 explained to Gundogdu what was occurring at every step of

12 the proceedings. He also granted Gundogdu numerous

13 continuances to obtain counsel and to have his evidence

14 translated. At the merits hearing, Gundogdu explained that

15 he had been beaten by the mafia in Turkey and feared future

16 harm because he still owed money to the mafia. He further

17 claimed that he would also be imprisoned for aiding a friend

18 in fraudulently obtaining health insurance, and for

19 illegally obtaining a second passport. Under these

20 circumstances, we find that Gundogdu was given a full and

21 fair opportunity to present his claim. See Michel v. INS,

22 206 F.3d 253, 259 (2d Cir. 2000) (concluding that because

23 the IJ ensured the applicant was fully apprised of what was

24 taking place during the course of his proceedings and

25 continued the proceedings several times to afford the

26 applicant an opportunity to submit complete and accurate

27 information, “the IJ acted, procedurally, exactly as we hope

28 that an IJ would . . . .”); see also Burger, 498 F.3d at

29 134.

30

31 For the foregoing reasons, the petition for review is

32 DENIED. As we have completed our review, any stay of

33 removal that the Court previously granted in this petition

34 is VACATED, and any pending motion for a stay of removal in

35 this petition is DISMISSED as moot. Any pending request for

36 oral argument in this petition is DENIED in accordance with

37 Federal Rule of Appellate Procedure 34(a)(2), and Second

38 Circuit Local Rule 34.1(b).

39

40 FOR THE COURT: 

41 Catherine O’Hagan Wolfe, Clerk

42

43