16-3518 Diarra v. Sessions BIA Schoppert, IJ A205 016 867 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.
1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 1st day of March, two thousand eighteen. 5 6 PRESENT: 7 GUIDO CALABRESI, 8 REENA RAGGI, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 ALY DIARRA, 14 Petitioner, 15 16 v. 16-3518 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Gary J. Yerman, New York, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Benjamin Mark 27 Moss, Trial Attorney; Timothy Bo 28 Stanton, Trial Attorney, Office of 29 Immigration Litigation, United 30 States Department of Justice, 31 Washington, DC. 1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Aly Diarra, a native and citizen of Mali,
6 seeks review of a September 22, 2016, decision of the BIA
7 affirming a July 17, 2015, decision of an Immigration Judge
8 (“IJ”) denying Diarra’s application for asylum, withholding
9 of removal, and relief under the Convention Against Torture
10 (“CAT”). In re Aly Diarra, No. A 205 016 867 (B.I.A. Sept.
11 22, 2016), aff’g No. A 205 016 867(Immig. Ct. N.Y. City July
12 17, 2015). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 We have reviewed the IJ’s decision as modified by the
15 BIA, i.e., minus the corroboration ruling on which the BIA
16 declined to rely. See Xue Hong Yang v. U.S. Dep’t of
17 Justice, 426 F.3d 520, 522 (2d Cir. 2005). The applicable
18 standards of review are well established. See 8 U.S.C.
19 § 1252(b)(4); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d
20 Cir. 2009).
21 To obtain asylum, Diarra had the burden to establish past
22 persecution or an objectively reasonable well-founded fear of
23 future persecution. 8 U.S.C. § 1158(b)(1)(B)(i); 8 C.F.R. 2 1 § 1208.13(a), (b); Paul v. Gonzales, 444 F.3d 148, 154 (2d
2 Cir. 2006). “[P]ersecution is the infliction of suffering
3 or harm upon those who differ on the basis of a protected
4 statutory ground.” Ivanishvili v. U.S. Dep’t of Justice, 433
5 F.3d 332, 341 (2d Cir. 2006). Diarra did not address past
6 persecution in his brief, stating incorrectly that the agency
7 assumed that Diarra met his burden. Because he did not argue
8 that he established past persecution, he has waived the issue.
9 Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998)
10 (“Issues not sufficiently argued in the briefs are considered
11 waived and normally will not be addressed on appeal.”). In
12 any event, the agency did not err: Diarra’s only evidence of
13 past persecution was the visit from armed soldiers while he
14 was not home and the implied threat that they wanted to kill
15 him. Such a threat does not alone constitute persecution.
16 See Huo Qiang Chen v. Holder, 773 F.3d 396, 406 (2d Cir.
17 2014); Gui Ci Pan v. U.S. Att’y General, 449 F.3d 408, 412-
18 13 (2d Cir. 2006).
19 Because Diarra failed to establish past persecution, he
20 had to demonstrate a well-founded fear of future
21 persecution. Hongsheng Leng v. Mukasey, 528 F.3d 135, 140
22 (2d Cir. 2008); 8 U.S.C. § 1101(a)(42); 8 C.F.R.
23 § 1208.13(a), (b). A fear of future persecution must be 3 1 “objectively reasonable” with “solid support in the
2 record.” Jian Xing Huang v. U.S. INS, 421 F.3d 125, 128-29
3 (2d Cir. 2005). Applicants can either “provide evidence
4 that there is a reasonable possibility [they] will be
5 singled out for persecution” or show “that there is a
6 pattern or practice in [their] country of nationality . . .
7 of persecution of a group of persons similarly situated to
8 the applicant.” See Lianping Li v. Lynch, 839 F.3d 144,
9 150 (2d Cir. 2016) (quoting 8 C.F.R.
10 § 1208.13(b)(2)(iii)(A) (alteration in original)).
11 The agency reasonably found that Diarra’s fear of
12 persecution from the armed soldiers who came to his home
13 was not objectively reasonable as their leader was arrested
14 and the democratic government restored in 2013. Diarra
15 argues that the coup leader could still direct his soldiers
16 from prison, but he presented no evidence to support this
17 theory. See Jian Xing Huang, 421 F.3d at 129 (explaining
18 that alleged fear must have “solid support in the record”).
19 Diarra also points to instances of politically motivated
20 disappearances and violence against people with ties to the
21 pre-coup government, but the individuals responsible for
22 those incidents have been arrested. Though the State
23 Department report notes politically motivated 4 1 disappearances and violence, there is no evidence that
2 government contractors like Diarra are targeted. Finally,
3 Diarra argues that his fear of persecution is objectively
4 reasonable because of ongoing conflict and human rights
5 abuses in Mali. But general conditions of crime and
6 violence “do[] not lend support to an asylum claim,” which
7 requires persecution on account of an enumerated protected
8 ground. Melgar de Torres v. Reno, 191 F.3d 307, 314 (2d
9 Cir. 1999).
10 The agency also reasonably found that Diarra could not
11 establish a well-founded fear of future persecution based on
12 the threat of FGM to his daughters. An applicant may not
Free access — add to your briefcase to read the full text and ask questions with AI
16-3518 Diarra v. Sessions BIA Schoppert, IJ A205 016 867 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.
1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 1st day of March, two thousand eighteen. 5 6 PRESENT: 7 GUIDO CALABRESI, 8 REENA RAGGI, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 ALY DIARRA, 14 Petitioner, 15 16 v. 16-3518 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Gary J. Yerman, New York, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Benjamin Mark 27 Moss, Trial Attorney; Timothy Bo 28 Stanton, Trial Attorney, Office of 29 Immigration Litigation, United 30 States Department of Justice, 31 Washington, DC. 1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Aly Diarra, a native and citizen of Mali,
6 seeks review of a September 22, 2016, decision of the BIA
7 affirming a July 17, 2015, decision of an Immigration Judge
8 (“IJ”) denying Diarra’s application for asylum, withholding
9 of removal, and relief under the Convention Against Torture
10 (“CAT”). In re Aly Diarra, No. A 205 016 867 (B.I.A. Sept.
11 22, 2016), aff’g No. A 205 016 867(Immig. Ct. N.Y. City July
12 17, 2015). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 We have reviewed the IJ’s decision as modified by the
15 BIA, i.e., minus the corroboration ruling on which the BIA
16 declined to rely. See Xue Hong Yang v. U.S. Dep’t of
17 Justice, 426 F.3d 520, 522 (2d Cir. 2005). The applicable
18 standards of review are well established. See 8 U.S.C.
19 § 1252(b)(4); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d
20 Cir. 2009).
21 To obtain asylum, Diarra had the burden to establish past
22 persecution or an objectively reasonable well-founded fear of
23 future persecution. 8 U.S.C. § 1158(b)(1)(B)(i); 8 C.F.R. 2 1 § 1208.13(a), (b); Paul v. Gonzales, 444 F.3d 148, 154 (2d
2 Cir. 2006). “[P]ersecution is the infliction of suffering
3 or harm upon those who differ on the basis of a protected
4 statutory ground.” Ivanishvili v. U.S. Dep’t of Justice, 433
5 F.3d 332, 341 (2d Cir. 2006). Diarra did not address past
6 persecution in his brief, stating incorrectly that the agency
7 assumed that Diarra met his burden. Because he did not argue
8 that he established past persecution, he has waived the issue.
9 Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998)
10 (“Issues not sufficiently argued in the briefs are considered
11 waived and normally will not be addressed on appeal.”). In
12 any event, the agency did not err: Diarra’s only evidence of
13 past persecution was the visit from armed soldiers while he
14 was not home and the implied threat that they wanted to kill
15 him. Such a threat does not alone constitute persecution.
16 See Huo Qiang Chen v. Holder, 773 F.3d 396, 406 (2d Cir.
17 2014); Gui Ci Pan v. U.S. Att’y General, 449 F.3d 408, 412-
18 13 (2d Cir. 2006).
19 Because Diarra failed to establish past persecution, he
20 had to demonstrate a well-founded fear of future
21 persecution. Hongsheng Leng v. Mukasey, 528 F.3d 135, 140
22 (2d Cir. 2008); 8 U.S.C. § 1101(a)(42); 8 C.F.R.
23 § 1208.13(a), (b). A fear of future persecution must be 3 1 “objectively reasonable” with “solid support in the
2 record.” Jian Xing Huang v. U.S. INS, 421 F.3d 125, 128-29
3 (2d Cir. 2005). Applicants can either “provide evidence
4 that there is a reasonable possibility [they] will be
5 singled out for persecution” or show “that there is a
6 pattern or practice in [their] country of nationality . . .
7 of persecution of a group of persons similarly situated to
8 the applicant.” See Lianping Li v. Lynch, 839 F.3d 144,
9 150 (2d Cir. 2016) (quoting 8 C.F.R.
10 § 1208.13(b)(2)(iii)(A) (alteration in original)).
11 The agency reasonably found that Diarra’s fear of
12 persecution from the armed soldiers who came to his home
13 was not objectively reasonable as their leader was arrested
14 and the democratic government restored in 2013. Diarra
15 argues that the coup leader could still direct his soldiers
16 from prison, but he presented no evidence to support this
17 theory. See Jian Xing Huang, 421 F.3d at 129 (explaining
18 that alleged fear must have “solid support in the record”).
19 Diarra also points to instances of politically motivated
20 disappearances and violence against people with ties to the
21 pre-coup government, but the individuals responsible for
22 those incidents have been arrested. Though the State
23 Department report notes politically motivated 4 1 disappearances and violence, there is no evidence that
2 government contractors like Diarra are targeted. Finally,
3 Diarra argues that his fear of persecution is objectively
4 reasonable because of ongoing conflict and human rights
5 abuses in Mali. But general conditions of crime and
6 violence “do[] not lend support to an asylum claim,” which
7 requires persecution on account of an enumerated protected
8 ground. Melgar de Torres v. Reno, 191 F.3d 307, 314 (2d
9 Cir. 1999).
10 The agency also reasonably found that Diarra could not
11 establish a well-founded fear of future persecution based on
12 the threat of FGM to his daughters. An applicant may not
13 claim persecution “based solely on harm that was inflicted on
14 a family member . . . because an applicant must rely upon
15 harm the applicant has suffered individually.” Tao Jiang v.
16 Gonzales, 500 F.3d 137, 141 (2d Cir. 2007). Diarra argues
17 otherwise, relying on a Ninth Circuit case, Sumolang v.
18 Holder. But that case is distinguishable because the Ninth
19 Circuit ruled that “harm to a child can amount to persecution
20 of [the] parent,” only when it is “directed against the parent
21 ‘on account of’ or ‘because of’ the parent’s” protected
22 characteristic. 723 F.3d 1080, 1084 (9th Cir. 2013). Diarra
23 testified that his daughters were in danger of FGM because of 5 1 societal custom in Mali, not because anyone sought to target
2 him based on a protected characteristic. The agency thus did
3 not err in concluding that Diarra had not shown an objectively
4 reasonable fear of future persecution based on the threat of
5 FGM.
6 Because Diarra has not shown the objectively reasonable
7 fear of persecution needed to make out an asylum claim, he
8 has not met the higher standard required to succeed on his
9 claims for withholding of removal and CAT relief. See Lecaj
10 v. Holder, 616 F.3d 111, 119-20 (2d Cir. 2010).
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of removal
13 that the Court previously granted in this petition is VACATED,
14 and any pending motion for a stay of removal in this petition
15 is DISMISSED as moot. Any pending request for oral argument
16 in this petition is DENIED in accordance with Federal Rule of
17 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
18 34.1(b).
19 FOR THE COURT: 20 Catherine O’Hagan Wolfe, Clerk of Court 21