16-4201 Taher v. Sessions BIA Kolbe, IJ A043 550 073 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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 13th day of March, two thousand eighteen. 5 6 PRESENT: 7 ROBERT A. KATZMANN, 8 Chief Judge, 9 DEBRA ANN LIVINGSTON, 10 SUSAN L. CARNEY, 11 Circuit Judges. 12 _____________________________________ 13 14 MOHAMED FAITHEL TAHER, 15 Petitioner, 16 17 v. 16-4201 18 NAC 19 JEFFERSON B. SESSIONS III, 20 UNITED STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Melinda M. Basaran, Paterson, NJ. 25 26 FOR RESPONDENT: Chad A. Readler, Acting Assistant 27 Attorney General; Linda S. 28 Wernery, Assistant Director; 29 Janice K. Redfern, Senior 30 Litigation Counsel, Office of 31 Immigration Litigation, United 32 States Department of Justice, 33 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 Mohamed Faithel Taher, a native and citizen
6 of Yemen, seeks review of a November 22, 2016 decision of
7 the BIA affirming a June 7, 2016 decision of an Immigration
8 Judge (“IJ”) pretermitting Taher’s applications for asylum,
9 a waiver of inadmissibility, and cancellation of removal,
10 and denying his applications for withholding of removal and
11 relief under the Convention Against Torture (“CAT”). In re
12 Mohamed Faithel Taher, No. A 043 550 073 (B.I.A. Nov. 22,
13 2016), aff’g No. A 043 550 073 (Immig. Ct. N.Y. City June
14 7, 2016). We assume the parties’ familiarity with the
15 underlying facts and procedural history in this case.
16 Our jurisdiction to review Taher’s final order of
17 removal is limited to “constitutional claims or questions
18 of law.” 8 U.S.C. § 1252(a)(2)(C), (D). We review de novo
19 Taher’s legal challenge to the agency’s aggravated felony
20 determination. Pierre v. Holder, 588 F.3d 767, 772 (2d
21 Cir. 2009). We conclude that the agency correctly found
22 that Taher’s conviction is an aggravated felony that bars
2 1 him from receiving relief in the form of asylum, waiver of
2 inadmissibility, and cancellation of removal.
3 Contrary to Taher’s position, because the aggravated
4 felony determination related solely to the denial of
5 relief, not the charge of removability, he bore the burden
6 of establishing his eligibility for relief from removal.
7 See 8 U.S.C. §§ 1158(b)(1)(B)(i), 1229a(c)(4)(A); 8 C.F.R.
8 §§ 1240.8(d), 1208.13(a). An aggravated felony conviction
9 precludes him from receiving relief in the form of asylum,
10 waiver of inadmissibility under 8 U.S.C. § 1182(h), and
11 cancellation of removal. See 8 U.S.C.
12 §§ 1158(b)(2)(A)(ii), (b)(2)(B)(i), 1182(h), 1229b(a)(3).
13 Taher failed to demonstrate that his 2015 conviction for
14 conspiracy to commit food stamp fraud was not an aggravated
15 felony under 8 U.S.C. § 1101(a)(43)(M)(i) & (U). He does
16 not and, indeed, cannot reasonably dispute that his
17 conviction involved fraud or deceit or that it was a
18 conspiracy conviction. He challenges the agency’s
19 aggravated felony determination only on the ground that the
20 record did not show a loss in excess of $10,000 as required
21 for a conviction to meet the statutory definition of a
22 fraud aggravated felony. 8 U.S.C. 1101(a)(43)(M)(i). The
3 1 agency properly relied on the $120,000 restitution award to
2 determine that the loss amount related to his conviction
3 exceeded $10,000. See Nijhawan v. Holder, 557 U.S. 29, 36-
4 40, 42-43 (2009) (applying the “circumstance specific
5 approach” in analyzing whether applicant was removable and
6 finding “nothing unfair” in agency’s reliance on criminal
7 sentencing documents, including parties’ stipulation and
8 court’s restitution order). Accordingly, the only relief
9 potentially available to Taher was withholding of removal
10 and under the CAT. As discussed below, however, Taher has
11 not shown any error in the agency’s denial of those forms
12 of relief.
13 As discussed above, our jurisdiction is limited to
14 reviewing constitutional claims and questions of law. 8
15 U.S.C. § 1252(a)(2)(C), (D). To qualify for withholding
16 of removal, an applicant must establish that, if removed to
17 the country proposed by the government, he will more likely
18 than not be persecuted on the basis of one of five
19 statutory grounds: “race, religion, nationality, membership
20 in a particular social group, or political opinion.” 8
21 U.S.C. § 1231(b)(3)(A); see 8 C.F.R. § 1208.16(b); Y.C. v.
22 Holder, 741 F.3d 324, 332-33 (2d Cir. 2013). That he may
4 1 be subjected there to “[g]enerally harsh conditions shared
2 by many others” does not amount to persecution. Matter of
3 Sanchez & Escobar, 19 I. & N. Dec. 276, 284 (B.I.A. 1985)
4 (finding that harm resulting from countrywide civil strife
5 is not persecution on account of one of the five enumerated
6 grounds); see Melgar de Torres v. Reno, 191 F.3d 307, 314
7 n.3 (2d Cir. 1999) (“General violence . . . does not
8 constitute persecution, nor can it form a basis for
9 petitioner’s . . . fear of persecution.”). Accordingly,
10 the ongoing war in Yemen does not alone provide an adequate
11 basis for authorizing relief from removal.
12 Taher has not otherwise met his burden to show that he
13 would more likely than not be subject to harm on account of
14 a protected ground (particular social group, religion, or
15 imputed political opinion). Jin Shui Qiu v. Ashcroft, 329
16 F.3d 140, 146 n.2 (2d Cir. 2003) (“[W]e review de novo the
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16-4201 Taher v. Sessions BIA Kolbe, IJ A043 550 073 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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 13th day of March, two thousand eighteen. 5 6 PRESENT: 7 ROBERT A. KATZMANN, 8 Chief Judge, 9 DEBRA ANN LIVINGSTON, 10 SUSAN L. CARNEY, 11 Circuit Judges. 12 _____________________________________ 13 14 MOHAMED FAITHEL TAHER, 15 Petitioner, 16 17 v. 16-4201 18 NAC 19 JEFFERSON B. SESSIONS III, 20 UNITED STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Melinda M. Basaran, Paterson, NJ. 25 26 FOR RESPONDENT: Chad A. Readler, Acting Assistant 27 Attorney General; Linda S. 28 Wernery, Assistant Director; 29 Janice K. Redfern, Senior 30 Litigation Counsel, Office of 31 Immigration Litigation, United 32 States Department of Justice, 33 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 Mohamed Faithel Taher, a native and citizen
6 of Yemen, seeks review of a November 22, 2016 decision of
7 the BIA affirming a June 7, 2016 decision of an Immigration
8 Judge (“IJ”) pretermitting Taher’s applications for asylum,
9 a waiver of inadmissibility, and cancellation of removal,
10 and denying his applications for withholding of removal and
11 relief under the Convention Against Torture (“CAT”). In re
12 Mohamed Faithel Taher, No. A 043 550 073 (B.I.A. Nov. 22,
13 2016), aff’g No. A 043 550 073 (Immig. Ct. N.Y. City June
14 7, 2016). We assume the parties’ familiarity with the
15 underlying facts and procedural history in this case.
16 Our jurisdiction to review Taher’s final order of
17 removal is limited to “constitutional claims or questions
18 of law.” 8 U.S.C. § 1252(a)(2)(C), (D). We review de novo
19 Taher’s legal challenge to the agency’s aggravated felony
20 determination. Pierre v. Holder, 588 F.3d 767, 772 (2d
21 Cir. 2009). We conclude that the agency correctly found
22 that Taher’s conviction is an aggravated felony that bars
2 1 him from receiving relief in the form of asylum, waiver of
2 inadmissibility, and cancellation of removal.
3 Contrary to Taher’s position, because the aggravated
4 felony determination related solely to the denial of
5 relief, not the charge of removability, he bore the burden
6 of establishing his eligibility for relief from removal.
7 See 8 U.S.C. §§ 1158(b)(1)(B)(i), 1229a(c)(4)(A); 8 C.F.R.
8 §§ 1240.8(d), 1208.13(a). An aggravated felony conviction
9 precludes him from receiving relief in the form of asylum,
10 waiver of inadmissibility under 8 U.S.C. § 1182(h), and
11 cancellation of removal. See 8 U.S.C.
12 §§ 1158(b)(2)(A)(ii), (b)(2)(B)(i), 1182(h), 1229b(a)(3).
13 Taher failed to demonstrate that his 2015 conviction for
14 conspiracy to commit food stamp fraud was not an aggravated
15 felony under 8 U.S.C. § 1101(a)(43)(M)(i) & (U). He does
16 not and, indeed, cannot reasonably dispute that his
17 conviction involved fraud or deceit or that it was a
18 conspiracy conviction. He challenges the agency’s
19 aggravated felony determination only on the ground that the
20 record did not show a loss in excess of $10,000 as required
21 for a conviction to meet the statutory definition of a
22 fraud aggravated felony. 8 U.S.C. 1101(a)(43)(M)(i). The
3 1 agency properly relied on the $120,000 restitution award to
2 determine that the loss amount related to his conviction
3 exceeded $10,000. See Nijhawan v. Holder, 557 U.S. 29, 36-
4 40, 42-43 (2009) (applying the “circumstance specific
5 approach” in analyzing whether applicant was removable and
6 finding “nothing unfair” in agency’s reliance on criminal
7 sentencing documents, including parties’ stipulation and
8 court’s restitution order). Accordingly, the only relief
9 potentially available to Taher was withholding of removal
10 and under the CAT. As discussed below, however, Taher has
11 not shown any error in the agency’s denial of those forms
12 of relief.
13 As discussed above, our jurisdiction is limited to
14 reviewing constitutional claims and questions of law. 8
15 U.S.C. § 1252(a)(2)(C), (D). To qualify for withholding
16 of removal, an applicant must establish that, if removed to
17 the country proposed by the government, he will more likely
18 than not be persecuted on the basis of one of five
19 statutory grounds: “race, religion, nationality, membership
20 in a particular social group, or political opinion.” 8
21 U.S.C. § 1231(b)(3)(A); see 8 C.F.R. § 1208.16(b); Y.C. v.
22 Holder, 741 F.3d 324, 332-33 (2d Cir. 2013). That he may
4 1 be subjected there to “[g]enerally harsh conditions shared
2 by many others” does not amount to persecution. Matter of
3 Sanchez & Escobar, 19 I. & N. Dec. 276, 284 (B.I.A. 1985)
4 (finding that harm resulting from countrywide civil strife
5 is not persecution on account of one of the five enumerated
6 grounds); see Melgar de Torres v. Reno, 191 F.3d 307, 314
7 n.3 (2d Cir. 1999) (“General violence . . . does not
8 constitute persecution, nor can it form a basis for
9 petitioner’s . . . fear of persecution.”). Accordingly,
10 the ongoing war in Yemen does not alone provide an adequate
11 basis for authorizing relief from removal.
12 Taher has not otherwise met his burden to show that he
13 would more likely than not be subject to harm on account of
14 a protected ground (particular social group, religion, or
15 imputed political opinion). Jin Shui Qiu v. Ashcroft, 329
16 F.3d 140, 146 n.2 (2d Cir. 2003) (“[W]e review de novo the
17 question of law regarding what evidence will suffice to
18 carry an asylum applicant’s burden of proof.”), overruled
19 on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice,
20 494 F.3d 296 (2d Cir. 2007). Taher did not demonstrate
21 that Yemeni society perceives his purported particular
22 social group of “former United States detainees who have
5 1 been detained for a lengthy period of time” to be socially
2 distinct, particularly as he proffered no country
3 conditions evidence regarding the treatment in Yemen of
4 former U.S. detainees. See Paloka v. Holder, 762 F.3d 191,
5 196 (2d Cir. 2014) (recognizing that a proposed particular
6 social group must be “defined with particularity” and
7 “socially distinct within the society in question”). His
8 statement, through counsel, that he believes he could be
9 perceived as supporting or spying for the United States due
10 to his prolonged period of detention is not enough absent
11 any objective basis for his belief that such individuals
12 are singled out. Jian Xing Huang v. U.S. INS, 421 F.3d
13 125, 129 (2d Cir. 2005) (“In the absence of solid support
14 in the record” a fear of persecution is not objectively
15 reasonable and is “speculative at best.”); Melgar de
16 Torres, 191 F.3d at 311.
17 Similarly, Taher did not carry his burden to establish
18 the requisite nexus between any harm feared by him in Yemen
19 and his status as a “Sunni Muslim with a neutral stance”
20 regarding an ongoing civil war. He presented no evidence
21 apart from his own testimony that he wished to remain
22 neutral. This record did not demonstrate that he would be
6 1 targeted on the basis of that political opinion. See INS
2 v. Elias-Zacarias, 502 U.S. 478, 482 (1992) (holding that
3 it is insufficient that the persecutor act from “a
4 generalized political motive” (internal quotation marks
5 omitted)). Taher’s argument that the agency
6 mischaracterized his claim of imputed political opinion is
7 belied by the record. As the BIA noted in rejecting this
8 argument, the IJ explicitly considered Taher’s “neutral
9 stance” as a claim of imputed political opinion and Taher’s
10 counsel agreed on the record that the IJ properly
11 characterized the claim.
12 Our jurisdiction to review the agency’s denial of CAT
13 relief based on an applicant’s CIMT conviction is similarly
14 limited to constitutional claims and questions of law.
15 8 U.S.C. § 1252(a)(2)(C), (D); Ortiz-Franco v. Holder, 782
16 F.3d 81, 83 (2d Cir. 2015). An applicant for CAT relief
17 must establish that he will “more likely than not” be
18 tortured. 8 C.F.R. §§ 1208.16(c)(2), 1208.17(a); Khouzam
19 v. Ashcroft, 361 F.3d 161, 168 (2d Cir. 2004). In
20 assessing the likelihood of torture, “all evidence relevant
21 to the possibility of future torture shall be considered,
22 including, but not limited to . . . relevant information
7 1 regarding conditions in the country of removal.” 8 C.F.R.
2 § 1208.16(c)(3)(iv). To satisfy the applicable burden of
3 proof, an applicant for CAT relief must establish that
4 “someone in his particular alleged circumstances is more
5 likely than not to be tortured.” Mu-Xing Wang v. Ashcroft,
6 320 F.3d 130, 144 (2d Cir. 2003) (emphasis omitted).
7 The agency did not commit an error of law in finding
8 that Taher failed to show that he would more likely than
9 not face torture if returned to Yemen. Taher argued that
10 he will suffer deprivations and possible violence due to
11 the ongoing civil war, but becoming enmeshed in wartime
12 violence does not, as a matter of law, constitute torture.
13 See 8 C.F.R. § 1208.18(a)(5) (“In order to constitute
14 torture, an act must be specifically intended to inflict
15 severe physical or mental pain or suffering.”); Mu-Xing
16 Wang, 320 F.3d at 134. The agency did not fail to consider
17 any evidence that Taher submitted. The agency does not
18 need to “expressly parse or refute on the record each
19 individual argument or piece of evidence offered by the
20 petitioner.” Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d
21 Cir. 2006) (internal quotation marks omitted). Taher does
22 not identify what evidence not mentioned by the agency
8 1 would show he would likely be targeted for torture. Nor
2 does he address the observation that his family members
3 remain in Yemen and, although they had to relocate, they
4 have not been tortured. Melgar de Torres, 191 F.3d at 313
5 (explaining that the ability of family members to remain
6 unharmed “cuts against” finding objective basis for harm).
7 For the foregoing reasons, the petition for review is
8 DENIED. As we have completed our review, any stay of removal
9 that the Court previously granted in this petition is VACATED,
10 and any pending motion for a stay of removal in this petition
11 is DISMISSED as moot. Any pending request for oral argument
12 in this petition is DENIED in accordance with Federal Rule of
13 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
14 34.1(b).
15 FOR THE COURT: 16 Catherine O’Hagan Wolfe, Clerk of Court