Opinion
No. 07-2985-ag NAC.
November 4, 2008.
UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals ("BIA") decision, it is hereby ORDERED, ADJUDGED, AND DECREED, that the petition for review is DISMISSED in part and DENIED in part.
FOR PETITIONER: Theodore Vialet, New York, New York. FOR RESPONDENT: Jeffrey S. Bucholtz, Acting Assistant Attorney General; Linda S. Wernery, Assistant Director; Gregory M. Kelch, Attorney, Office of Immigration Litigation, U.S. Department of Justice, Washington, D.C.
PRESENT: HON. ROSEMARY S. POOLER, HON. SONIA SOTOMAYOR, HON. REENA RAGGI, Circuit Judges.
Mamadou Bobo Diallo, a citizen of Guinea, seeks review of a June 25, 2007 order of the BIA, affirming the June 1, 2005 decision of Immigration Judge ("IJ") Annette S. Elstein, which pretermitted his application for asylum and denied his applications for withholding of removal and relief under the Convention Against Torture ("CAT"). In re Mamadou Bobo Diallo, No. A95 369 057 (B.I.A. June 25, 2007), aff'g No. A95 369 057 (Immig. Ct. N.Y. City June 1, 2005). We assume the parties' familiarity with the underlying facts and procedural history in this case.
As an initial matter, we lack jurisdiction to review the IJ's decision insofar as it pretermitted Diallo's asylum claim. See 8 U.S.C. § 1158(a)(3). Notwithstanding this provision, however, we retain jurisdiction to review constitutional claims and "questions of law." 8 U.S.C. § 1252(a)(2)(D). Because Diallo has failed to present any constitutional claim or question of law related to the IJ's finding that his asylum application was time-barred, we dismiss the petition for review to that extent. 8 U.S.C. § 1158(a)(3).
When the BIA adopts the decision of the IJ and supplements the IJ's decision, this Court reviews the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the agency's factual findings under the substantial evidence standard. See, e.g., Zhou Yun Zhang v. INS, 386 F.3d 66, 73 n. 7 (2d Cir. 2004), overruled in part on other grounds by Shi Liang Lin v. U.S. Dept. of Justice, 494 F.3d 296, 305 (2d Cir. 2007). We review de novo questions of law and the application of law to undisputed fact. See, e.g., Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir. 2003).
We find that substantial evidence supports the agency's finding that Diallo failed to establish eligibility for withholding of removal with respect to either Guinea or Liberia. The BIA has defined persecution as "a threat to the life or freedom of, or the infliction of suffering or harm upon, those who differ in a way regarded as offensive." Matter of Acosta, 19 I. N. Dec. 211, 222 (BIA 1985). We have held that a valid claim of past persecution can be based on harm other than threats to life or freedom, including non-life-threatening violence and physical abuse, Beskovic v. Gonzales, 467 F.3d 223, 226 n. 3 (2d Cir. 2006) (citing Tian-Yong Chen v. INS, 359 F.3d 121, 128 (2d Cir. 2004)), but the harm alleged must be sufficiently severe, rising above "mere harassment," Ivanishvili v. U.S. Dep't of Justice, 433 F.3d 332, 341 (2d Cir. 2006).
Here, Diallo has waived any challenge to the agency's finding that he failed to establish past persecution in Guinea by limiting his assertion of error to "a single conclusory sentence." See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n. 7 (2d Cir. 2005). As to past persecution in Liberia, Diallo failed to allege or describe events involving the type of severe or extreme harm or suffering required to establish persecution. See Ivanishvili, 433 F.3d at 341; see also Ai Feng Yuan v. U.S. Dep't of Justice, 416 F.3d 192, 198 (2d Cir. 2005) (citing Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir. 1995) ("persecution is an extreme concept that does not include every sort of treatment our society regards as offensive")), overruled in part on other grounds by Shi Liang Lin v. U.S. Dept. of Justice, 494 F.3d 296, 305 (2d Cir. 2007). As the agency reasonably concluded that Diallo had not suffered past persecution in Liberia, he was not entitled to a presumption of a future threat of persecution in that country. See 8 C.F.R. § 1208.16(b)(1).
We also find that substantial evidence supports the agency's determination that Diallo failed to demonstrate a likelihood of future persecution in either Guinea or Liberia. Diallo first argues that the agency erred in concluding that he had not established a likelihood of future persecution in Guinea, asserting that the evidence in the record established that he will be targeted as an ethnic Fulani and as a suspected rebel. As evidence of his fear of persecution in Guinea, Diallo asserted that he knew several Fulani Guineans who were arrested as suspected rebels upon returning to Guinea from Liberia on undisclosed dates. In concluding that this evidence was insufficient to satisfy Diallo's burden of proving a likelihood of future persecution, the IJ reasonably considered country conditions reports in the record and reasonably found that, although Guinea had a poor human rights record, the background evidence did not demonstrate that there had been persecution in Guinea of Fulanis on account of their ethnicity. See Tu Lin v. Gonzales, 446 F.3d 395, 400 (2d Cir. 2006) (acknowledging the probative value of State Department country reports). As to Diallo's claim that he would be considered a rebel for having lived in Liberia and arrested for that reason as his friends had been, the IJ reasonably found that Diallo could not "say how it would be known that he'd been in Liberia or for how long" where, unlike his friends, he would be returning to Guinea from the United States. See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (concluding that an applicant's assertion of an objective likelihood of persecution, and consequently the higher standard for withholding of removal, were "speculative at best" where he failed to present "solid support in the record").
There is no need for us to review the agency's finding that Diallo had firmly resettled in Liberia as that finding only relates to the denial of his application for asylum, which this Court lacks jurisdiction to review. See 8 U.S.C. § 1158(b)(2)(vi) (providing that firm resettlement in another country prior to arrival in the United States is a bar to the grant of asylum); see also Salazar v. Ashcroft, 359 F.3d 45, 52 (1st Cir. 2004) (stating that "[a]lthough firm resettlement is, by regulation, a bar to the grant of asylum, we have found no statute or regulation that bars the relief of withholding of deportation on the basis of firm resettlement"); Elzour v. Ashcroft, 378 F.3d 1143, 1149 (10th Cir. 2004) (finding that firm resettlement does not bar withholding claims)).
As to his claim of a likelihood of future persecution in Liberia, Diallo argues that the agency erred in concluding that he had failed to satisfy his burden of proof where there still exists a "fear of foreigners" and "xenophobia remains high." In concluding that Diallo failed to establish a likelihood of future persecution in Liberia, the IJ reasonably considered recent country conditions reports in the record and noted that "the 1999 to 2003 civil war in Liberia has ended with a comprehensive peace agreement and the government of former President Charles Taylor who fled into exile after being indicted for war crimes has ended." Indeed, the record does not indicate that Guineans are persecuted in Liberia, and in his brief before this Court, Diallo essentially admits that conditions in Liberia have changed such that there is not a likelihood that he will suffer future persecution, stating that "[i]t is more problematic for the petitioner to claim that he would suffer harm if he returned to Liberia [where] President Taylor has been ousted and conditions have improved somewhat."
As the agency reasonably found that Diallo failed to establish past persecution or a likelihood of future persecution in either country, the agency reasonably denied his application for withholding of removal. Finally, as Diallo fails to present any argument addressing the denial of his application for relief under CAT, we deem any such argument waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir. 2005).
For the foregoing reasons, the petition for review is DISMISSED in part and DENIED in part. As we have completed our review, the pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(d)(1).