13-3349 Faili v.Lynch BIA Laforest IJ A098 977 380 A098 977 381 

### 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 TO A SUMMARY ORDER MUST SERVE A COPY**  **OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for**  1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **18 th**  **day of December, two thousand fifteen.** 4 5 **PRESENT:** 6 **DENNIS JACOBS,** 7 **PETER W. HALL,** 8 **SUSAN L. CARNEY,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **HOJATOLLAH FAILI, KADRINUR SEVAL** 13 **FAILI,** 14 Petitioners **,** 15 16 **v. 13-3349** 17 **NAC** 18 19 **LORETTA E. LYNCH, UNITED STATES** 20 **ATTORNEY GENERAL,** 21 Respondent **.** 22

**_____________________________________** 23 24 **FOR PETITIONER:** Joshua E. Bardavid, New York, New 25 York. 262 **FOR RESPONDENT:** Stuart F. Delery, Assistant Attorney 1 General; Anthony C. Payne, Senior 2 Litigation Counsel; Liza S. Murcia, 3 Attorney, Office of Immigration 4 Litigation, Washington, D.C. 5 6 UPON DUE CONSIDERATION of this petition for review of a 7 Board of Immigration Appeals (“BIA”) decision, it is hereby 8 ORDERED, ADJUDGED, AND DECREED that the petition for review is 9

DENIED. 10 Petitioners Hojatollah Faili, a native of Iran and citizen 11 of Iran and Turkey, and his wife, Kadrinur Seval Faili, a native 12 and citizen of Turkey, seek review of an August 12, 2013, 13 decision of the BIA affirming a September 14, 2011, decision 14 of an Immigration Judge (“IJ”) denying Petitioners’ 15 applications for asylum, withholding of removal, and relief 16 under the Convention Against Torture (“CAT”). In re Hojatollah 17 Faili, Kadrinur Seval Faili, Nos. A098 977 380/381 (B.I.A. Aug. 18 12, 2013), aff’g Nos. A098 977 380/381 (Immig. Ct. N.Y. City 19 Sept. 14, 2011). We assume the parties’ familiarity with the 20 underlying facts and procedural history in this case. 21 Petitioners do not challenge the agency’s denial of asylum 22 or withholding of removal. Accordingly, the only portion of 233 the agency’s decision that is before this Court is the denial 1 of deferral of removal to Turkey under the CAT. See Yueqing 2 Zhang v. Gonzales , 426 F.3d 540, 542 n.1, 546 n.7 (2d Cir. 2005). 3 Petitioners stated two bases for deferral of removal to Turkey: 4 a fear of torture by the Iranian government because Mr. Faili 5 had cooperated with the DEA, and a fear of torture by drug 6 smugglers that Mr. Faili helped convict. 7 Petitioners have not exhausted this claim to the extent 8 that they allege a fear of torture in Turkey at the hands of 9 the Iranian government. Petitioners must raise specific 10 issues with the BIA before raising them in this Court. See 11
Foster v. INS , 376 F.3d 75, 77-78 (2d Cir. 2004). Issue 12 exhaustion is mandatory where, as here, the Government points 13 out that the issue was not properly raised below. Lin Zhong 14 v. U.S. Dep’t of Justice , 480 F.3d 104, 107 n.1 (2d Cir. 2007). 15 Petitioners failed to exhaust this particular CAT claim before 16 the BIA. Their brief stated only that “these individuals that 17 were arrested are very dangerous and have strong ties to the 18 government of Turkey, as well as Iran,” and did not argue that 19 the Iranian government would reach them in Turkey and torture 204 them. Accordingly, we decline to consider this basis for CAT 1 deferral and address the merits of the claim only as to 2 Petitioners’ fear of drug smugglers. 3 As an initial matter, the BIA’s decision is far from clear 4 as to CAT deferral. Although the BIA acknowledged that a CAT 5 claim was raised and that Mr. Faili was granted deferral of 6 removal to Iran, it did not mention CAT relief with respect to 7 Turkey. Thus the BIA may have overlooked this claim. 8 Nevertheless, remand would be futile because the BIA affirmed 9 the IJ’s adverse credibility determination, which is 10 dispositive of the CAT claim. Xiao Ji Chen v. U.S. Dep’t of 11 Justice , 471 F.3d 315, 338 (2d Cir. 2006). 12 Deferral of removal under the CAT is a mandatory form of 13 relief that requires the applicant to show that he would more 14 likely than not be tortured in the proposed country of removal. 15 8 C.F.R. §§ 1208.16(c), 1208.17; Khouzam v. Ashcroft , 361 F.3d 16 161, 168 (2d Cir. 2004). Not all harm rises to the level of 17 torture; rather, it is an “‘extreme form of cruel and inhuman 18 treatment and does not include lesser forms of cruel, inhuman 19 or degrading treatment or punishment that do not amount to 205 torture.’” San Chung Jo v. Gonzales , 458 F.3d 104, 109 (2d Cir. 1 2006) (quoting 8 C.F.R. § 1208.18(a)(2)). Torture also 2 requires that “government officials know of or remain willfully 3 blind to an act and thereafter breach their legal responsibility 4 to prevent it.” Khouzam , 361 F.3d at 171. 5 The IJ denied deferral of removal to Turkey for two reasons: 6 the adverse credibility finding and lack of evidence that the 7 Turkish government would acquiesce to any torture. 8 Petitioners do not challenge the adverse credibility 9 determination and it stands as a valid basis for the denial of 10 CAT relief. Yueqing Zhang , 426 F.3d at 542 n.1, 546 n.7; Shunfu 11 Li v. Mukasey , 529 F.3d 141, 146-47 (2d Cir. 2008) (concluding 12 that unchallenged credibility findings stand as valid basis for 13 the determination). “[A] petition for CAT relief may fail 14 because of an adverse credibility ruling rendered in the asylum 15 context where the factual basis for the alien’s CAT claim was 16 the same as that rejected in his asylum petition.” Paul v. 17 Gonzales , 444 F.3d 148, 157 (2d Cir. 2009). 18 The Faili’s contend that their CAT claim can be established 19 independently of the credibility determination because of the 206 objective evidence that Mr. Faili was a DEA informant. This 1 objective evidence does not overcome the credibility problems 2 relating to their alleged fear of drug smugglers. Mr. Faili 3 was found not credible with respect to a number of facts 4 involving his work with the DEA and alleged fear of harm in 5 Turkey on that basis. Mr. Faili and the DEA agents gave 6 conflicting testimony about the number of threats that Mr. Faili 7 received and reported, and about who threatened him. Mr. Faili 8 claims that a Turkish newspaper article revealed his status as 9 an informant; but he failed to corroborate that claim by a copy 10 of the article or by evidence that he tried to locate it. Mr. 11 Faili said one of the DEA agents “definitely” saw the article, 12 but that agent could not recall it. And Mrs. Faili was evasive 13 when asked about her father’s testimony that “there is nothing 14 to fear in Turkey.” First she said her father must have 15 misunderstood, then she said she disagreed with him without 16 explaining why her view should be credited. Because the 17 agency’s adverse credibility determination relates to the facts 18 and circumstances underlying the C AT claim, specifically 19 whether the alleged fear was credible, Mr. Faili’s status as 207 a DEA informant does not alone warrant CAT deferral. See Paul , 1 444 F.3d at 157. 2 Moreover, as the IJ also found, Petitioners otherwise 3 failed to establish that they would be tortured “at the 4 instigation of, or with the consent and acquiescence of a public 5 official.” 8 C.F.R. § 1208.18(a). One DEA agent testified 6 that the Turkish police increased patrols around Mr. Faili’s 7 residence in response to his report of a threatening phone call 8 from his sister-in-law. The Failis have offered no evidence 9

to support their speculation have offered no evidence to support 10 their speculation that the Turkish government will no longer 11 offer them protection because Mr. Faili is no longer a DEA 12 informant. Mu Xiang Lin v. U.S. Dep’t of Justice , 432 F.3d 156, 13 160 (2d Cir. 2005) (denying CAT relief because petitioner 14 offered “no additional particularized evidence”); Mu-Xing Wang 15

v. Ashcroft , 320 F.3d 130, 144 (2d Cir. 2003) (denying CAT relief 16 where petitioner “in no way established that someone in his 17 particular alleged circumstances is more likely than not to be 18 tortured” (emphasis in original)). 198 For the foregoing reasons, the petition for review is 1 DENIED. As we have completed our rev iew, any stay of removal 2 that the Court previously granted in this petition is VACATED, 3 and any pending motion for a stay of removal in this petition 4 is DISMISSED as moot. Any pending request for oral argument 5 in this petition is DENIED in accordance with Federal Rule of 6 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 7 34.1(b). 8
FOR THE COURT: 9 Catherine O = Hagan Wolfe, Clerk 10