Biba v. BIA, (2nd Cir. 2007)

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06-2627(L)

Biba v. BIA

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R U L I N G S BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED

A F T E R JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT'S LOCAL RULE 0.23 AND

F E D E R A L RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT

C I T E S A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION

M U S T EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION: "(SUMMARY ORDER)."

U N L E S S THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE

W I T H O U T PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV), THE

P A R T Y CITING THE SUMMARY ORDER MUST FILE AND SERVE A COPY OF THAT SUMMARY ORDER TOGETHER

W I T H THE PAPER IN WHICH THE SUMMARY ORDER IS CITED. IF NO COPY IS SERVED BY REASON OF THE

A V A I L A B I L I T Y OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT

D A T A B A S E AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.

A t a stated term of the United States Court of Appeals

f o r the Second Circuit, held at the Daniel Patrick Moynihan

U n i t e d States Courthouse, 500 Pearl Street, in the City of

N e w York, on the 5th day of April, two thousand seven.

PRESENT:

H O N . PIERRE N. LEVAL,

H O N . JOSÉ A. CABRANES,

H O N . BARRINGTON D. PARKER,

C i r c u i t Judges.

A X H I BIBA, XHEMILE BIBA, JUSUF BIBA,

Petitioners,

-v.- 0 6 - 2 6 2 7 - a g (L);

0 6 - 2 7 2 0 - a g (con);

U . S . DEPARTMENT OF JUSTICE, 06-2725-ag (con)

E X E C U T I V E OFFICE FOR IMMIGRATION REVIEW, NAC

B O A R D OF IMMIGRATION APPEALS,

Respondents.

F O R PETITIONERS: L i n d a C. Flanagan, New York, New

York.

F O R RESPONDENTS: P e t e r D. Keisler, Assistant Attorney G e n e r a l , Jeffery J. Bernstein, S e n i o r Litigation Counsel, Rebecca A . Niburg, Office of Immigration L i t i g a t i o n , Washington, D.C.

U P O N DUE CONSIDERATION of this petition for review of a d e c i s i o n of the Board of Immigration Appeals ("BIA"), it is h e r e b y ORDERED, ADJUDGED, AND DECREED, that the petition for r e v i e w is DENIED.

P e t i t i o n e r s Jusuf Biba, his wife Xhemile Biba, and t h e i r minor child Axhi Biba (collectively, "the Bibas"), n a t i v e s and citizens of Macedonia, seek review of a May 12, 2 0 0 6 order of the BIA affirming the January 21, 2005 d e c i s i o n of Immigration Judge ("IJ") Philip Morace denying t h e i r applications for asylum, withholding of removal, and r e l i e f under the Convention Against Torture ("CAT"). In re J u s u f Biba, et al., Nos. A97 646 352/353/354 (B.I.A. May 12, 2 0 0 6 ) , aff'g Nos. A97 646 352/353/354 (Immig. Ct. N.Y. City J a n . 21, 2005). We assume the parties' familiarity with the u n d e r l y i n g facts and procedural history of the case.

A s an initial matter, we decline to consider the Bibas' c l a i m s for relief under the CAT, because they have failed to a r g u e these claims meaningfully in their brief to this Court. Issues not sufficiently argued in the briefs are c o n s i d e r e d waived and normally will not be addressed on a p p e a l in the absence of manifest injustice. See Yueqing Z h a n g v. Gonzales, 426 F.3d 540, 546 n.7 (2d Cir. 2005).

T h e r e f o r e , the Bibas' petitions are considered only to d e t e r m i n e whether the agency erred in denying their a p p l i c a t i o n s for asylum and withholding of removal.

W h e r e , as here, the BIA summarily affirms the decision o f the IJ without issuing an opinion, see 8 C.F.R. § 1003.1(e)(4), this Court reviews the IJ's decision as the f i n a l agency determination. See, e.g., Twum v. INS, 411 F . 3 d 54, 58 (2d Cir. 2005); Yu Sheng Zhang v. U.S. Dep't of J u s t i c e , 362 F.3d 155, 159 (2d Cir. 2004). We review the a g e n c y ' s factual findings under the substantial evidence s t a n d a r d , treating them as "conclusive unless any reasonable a d j u d i c a t o r would be compelled to conclude to the contrary." 8U.S.C. § 1252(b)(4)(B); see, e.g., Zhou Yun Zhang v. INS, 3 8 6 F.3d 66, 73 & n.7 (2d Cir. 2004). However, we will v a c a t e and remand for new findings if the agency's reasoning o r its fact-finding process was sufficiently flawed. See C a o He Lin v. U.S. Dep't of Justice, 428 F.3d 391, 406 (2d C i r . 2005); Tian-Yong Chen v. INS, 359 F.3d 121, 129 (2d C i r . 2004). We review de novo the IJ's legal conclusion t h a t the evidence presented by the Bibas was insufficient to s a t i s f y their burden of proof. See Jin Shui Qiu v. A s h c r o f t , 329 F.3d 140, 146 n.2 (2d Cir. 2003).

T h e BIA has defined persecution as "a threat to the l i f e or freedom of, or the infliction of suffering or harm u p o n , those who differ in a way regarded as offensive." M a t t e r of Acosta, 19 I & N Dec. 211, 216 (BIA 1985). This C o u r t has clarified that a valid past persecution claim can b e based on harm other than threats to life or freedom, i n c l u d i n g non-life-threatening violence and physical abuse.

S e e Beskovic v. Gonzales, 467 F.3d 223, 226 n.3 (2d Cir. 2 0 0 6 ) (citing Tian-Yong Chen, 359 F.3d at 128). However, t h i s harm must be sufficiently severe as to rise above "mere harassment." Ivanishvili v. U.S. Dep't of Justice, 433 F.3d 3 3 2 , 341 (2d Cir. 2006).

I n this case, while Jusuf Biba testified that he had b e e n questioned by Macedonian officials on several occasions a b o u t , inter alia, the whereabouts and activities of his b r o t h e r , a political activist, Jusuf denied that he had ever b e e n taken into custody and stated that his problems with t h e authorities were limited to "psychological[ ]" pressure.

N o t a b l y , he specifically stated that he had never been p h y s i c a l l y harmed by officials. As such, the IJ did not err i n concluding that he had not suffered past persecution.

M o r e o v e r , as to Biba's well-founded fear of future p e r s e c u t i o n , the IJ reasonably concluded that it was not l i k e l y that Macedonian officials would target him for p e r s e c u t i o n now, when they had not persecuted him in the p a s t , despite having had ample opportunity to do so.

A c c o r d i n g l y , the IJ's denial of Biba's application for a s y l u m was supported by substantial evidence. Because Biba w a s unable to meet his burden of establishing eligibility f o r asylum, he was necessarily unable to meet the higher s t a n d a r d required to succeed on a claim for withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

F o r the foregoing reasons, the petitions for review are DENIED. Having completed our review, any stay of removal t h a t the Court previously granted in this petition is V A C A T E D , and any pending motions for a stay of removal are D I S M I S S E D as moot. Any pending requests for oral argument a r e DENIED in accordance with Federal Rule of Appellate P r o c e d u r e 34(a)(2), and Second Circuit Local Rule 34(d)(1).

F O R THE COURT: Thomas Asreen, Acting Clerk By: 6

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