Moussa Camara v. Eric H. Holder, Jr.

367 F. App'x 602
CourtCourt of Appeals for the Sixth Circuit
DecidedMarch 1, 2010
Docket07-4418
StatusUnpublished

This text of 367 F. App'x 602 (Moussa Camara v. Eric H. Holder, Jr.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moussa Camara v. Eric H. Holder, Jr., 367 F. App'x 602 (6th Cir. 2010).

Opinions

OPINION

McKEAGUE, Circuit Judge.

Petitioner Moussa Camara (“Camara”) appeals the order of the Board of Immigration Appeals (“BIA”) affirming the decision of the Immigration Judge (“IJ”) denying Camara’s petition for asylum. As we explain below, Camara’s claims for withholding of removal and protection under the Convention Against Torture [604]*604(“CAT”) are not properly before us because he has not administratively exhausted those claims. Consequently, we DENY his petition for review.

A. Factual and Procedural Background

Camara is a native of Mauritania, and has a limited understanding of English. He is a member of the Soninke ethnic group. Beginning in the late 1980s, a large number of black African Mauritanians, including Soninkes, were expelled from Mauritania. Camara claimed that in 1991 some “[wjhite military Arabs” attacked his family farm and took his family to a military camp. (P.A. 375-76; A.R. 392-93.) He stated that, while there, he and his family were put to work making bricks, that he was beaten at least once with a military belt, and that other members of his family were beaten multiple times. The family remained in the camp for three to four weeks and, thereafter, they were forced to enter Senegal. Ca-mara’s family stayed in a refugee camp in Senegal for approximately one week before Camara’s brother arranged for a friend to take them to Dakar, Senegal, where they remained. Around February 19, 2000 Camara left Senegal with the help of his brother’s friend, who arranged for a fraudulent passport that allowed Camara to enter the United States.

On November 2, 2000 the Department of Homeland Security issued a Notice to Appear to Camara, alleging that he improperly entered the United States on or about February 19, 2000 in violation of the Immigration and Nationality Act. Camara appeared before the IJ and requested relief in the form of asylum, withholding of removal, and protection under the CAT. The IJ denied Camara’s application for relief. Camara appealed, but only on the grounds that the IJ improperly denied his claim for asylum. The BIA upheld the IJ’s determination. Camara then appealed to this court, arguing that his claims for withholding of removal and protection under the CAT were improperly denied.

B. Analysis

1.

On appeal, Camara only argues that his applications for withholding of removal and protection under the CAT were improperly denied. However, because Camara did not exhaust his administrative remedies regarding these claims, they are not properly before us. In an appeal from an order of removal we will consider “only those claims as to which the alien has exhausted his administrative remedies, that is, those claims ‘properly presented to the BIA and considered on their merits.’ ” Hasan v. Ashcroft, 397 F.3d 417, 419 (6th Cir.2005) (quoting Ramani v. Ashcroft, 378 F.3d 554, 560 (6th Cir.2004)). Moreover, “even if an issue is raised by the alien in his notice of appeal to the BIA, we will consider it waived if it is not argued in the brief filed with the BIA.” Id. at 420 (citing Ramani, 378 F.3d at 558). The court in Hasan found that it did not have authority to consider petitioner’s claims, since the petitioner “did not challenge before the BIA the IJ’s ... order denying the withholding of deportation and protection under the Convention Against Torture.” Id. at 420; see also 8 U.S.C. § 1252(d)(1) (“A court may review a final order of removal only if ... the alien has exhausted all administrative remedies available to the alien as of right.... ”).

Before the IJ, Camara applied for asylum, withholding of removal, and protection under the CAT. However, in his briefs before the BIA, Camara only challenged the IJ’s denial of his application for asylum.1 (P.A. 118-124, A.R. 133-139; P.A. [605]*60542-55, A.R. 57-70 (not raising or arguing a claim for withholding of removal or protection under the CAT and stating that “the Board should grant [Camara’s] asylum claim and admit him to the United States as an asylee”).) The BIA’s opinion did not consider these claims on the merits. (P.A. 32-33; A.R. 47-48.)2 Since Camara’s briefs before the BIA did not challenge that part of the IJ’s decision denying his applications for withholding of removal and protection under the CAT, and since the BIA did not consider the IJ’s denial of these claims on the merits, we find that these claims are not administratively exhausted and, therefore, we deny Camara’s petition.

2.

However, we note that, even if Camara had properly presented his claims for withholding of removal and protection under the CAT before this court, we would not grant his petition. We review de novo the legal determinations made by the IJ or the BIA, but we review factual findings and credibility determinations under the deferential substantial evidence standard. Zoarab v. Mukasey, 524 F.3d 777, 780 (6th Cir.2008). Under the substantial evidence standard, we consider the BIA’s findings of fact to be “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” Hana v. Gonzales, 400 F.3d 472, 475 (6th Cir.2005) (quoting Alt v. Reno, 237 F.3d 591, 596 (6th Cir.2001) and 8 U.S.C. § 1252(b)(4)(B)).

An alien cannot be removed to a country if “the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). The applicant must provide evidence showing a “clear probability” that he or she would be subject to persecution. Mullai v. Ashcroft, 385 F.3d 635, 639 (6th Cir. 2004) (citation omitted); Pilica v. Ashcroft, 388 F.3d 941, 951 (6th Cir.2004). This requires that it be, “more likely than not that the alien would be subject to persecution” upon his or her removal. INS v. Stevie, 467 U.S. 407,424,104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). If the applicant proves past persecution, the IJ must presume future persecution; however, the [606]*606government may rebut this presumption by showing a fundamental change in the circumstances that eliminates the threat. 8 C.F.R. § 1208.16(b).

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Immigration & Naturalization Service v. Stevic
467 U.S. 407 (Supreme Court, 1984)
Sead Pilica v. John Ashcroft
388 F.3d 941 (Sixth Circuit, 2004)
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397 F.3d 417 (Sixth Circuit, 2005)
Haxhiu v. Mukasey
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Al-Najar v. Mukasey
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Ali v. Reno
237 F.3d 591 (Sixth Circuit, 2001)

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