Samba v. Gonzales, (2nd Cir. 2007)

Text

---

06-5182-ag

Samba v. Gonzales

BIA

Bukszpan, IJ

A78 688 829

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

F I L E D AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT'S LOCAL RULE

0 . 2 3 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A

L I T I G A N T CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST

O N E CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:

" ( S U M M A R Y ORDER)." UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE

W H I C H IS PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT

H T T P : / / W W W . C A 2 . U S C O U R T S . G O V

C O P Y OF THAT SUMMARY ORDER TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED.

IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE

C I T A T I O N MUST INCLUDE REFERENCE TO THAT DATABASE AND THE DOCKET NUMBER OF THE CASE IN

W H I C H 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 16th day of July, two thousand seven.

PRESENT:

H O N . PIERRE N. LEVAL,

H O N . GUIDO CALABRESI,

H O N . JOSÉ A. CABRANES,

C i r c u i t Judges.

A B S A SAMBA,

Petitioner,

v. 06-5182-ag

NAC

A L B E R T O GONZALES,

A T T O R N E Y GENERAL OF THE UNITED STATES

Respondent.

F O R PETITIONER: R o n a l d S. Solomon, New York, New

York.

1 2 F O R RESPONDENT: P e t e r D. Keisler, Assistant Attorney 3 G e n e r a l , Civil Division; Michelle E.

4 G o r d e n Latour, Assistant Director; 5 K o s h e i Ugumori, Attorney, Office of 6 I m m i g r a t i o n Litigation, Civil 7 D i v i s i o n , U.S. Department of 8 J u s t i c e , Washington, D.C.

9 10 11 U P O N DUE CONSIDERATION of this petition for review of a 12 B o a r d of Immigration Appeals ("BIA") decision, it is hereby 13 O R D E R E D , ADJUDGED, AND DECREED that the petition for review 14 i s DENIED.

P e t i t i o n e r Absa Samba, a native and citizen of Gambia, s e e k s review of an order of the BIA affirming the May 4, 2 0 0 5 decision of Immigration Judge ("IJ") Joanna Miller B u k s z p a n , denying Samba's applications for asylum, w i t h h o l d i n g of removal, and relief under the Convention A g a i n s t Torture ("CAT"). In re Samba, Absa, No. A78 688 829 ( B . I . A . Oct. 10, 2006), aff'g No. A78 688 829 (Immig. Ct.

N . Y . City May 4, 2005). We assume the parties' familiarity w i t h the underlying facts and procedural history in this case.

W h e r e the BIA summarily affirms the decision of the IJ w i t h o u t issuing an opinion, see 8 C.F.R. § 1003.1(e)(4), t h i s Court reviews the IJ's decision as the final agency determination. See, e.g., Twum v. INS, 411 F.3d 54, 59 (2d C i r . 2005). This Court reviews the agency's factual findings u n d e r the substantial evidence standard, treating them as " c o n c l u s i v e unless any reasonable adjudicator would be c o m p e l l e d to conclude to the contrary." 8U.S.C. § 1 2 5 2 ( b ) ( 4 ) ( B ) ; see, e.g., Zhou Yun Zhang v. INS, 386 F.3d 6 6 , 73 & n.7 (2d Cir. 2004). However, we will vacate and r e m a n d for new findings if the agency's reasoning or its f a c t - f i n d i n g process was sufficiently flawed. Cao He Lin v. U . S . Dep't of Justice, 428 F.3d 391, 406 (2d Cir. 2005).

H e r e , substantial evidence supports the IJ's d e t e r m i n a t i o n that Samba failed to establish eligibility for asylum. To establish eligibility, an asylum applicant must s h o w that she has suffered past persecution or has a well f o u n d e d fear of future persecution. See 8U.S.C. § 1101(a)(42). The IJ correctly concluded that the treatment S a m b a alleged--a three-day detention, during which she was n o t physically mistreated, and a demotion to receptionist- d o e s not rise to the level of persecution. See Ai Feng Yuan v . U.S. Dep't of Justice, 416 F.3d 192, 198 (2d Cir. 2005).

F u r t h e r m o r e , while Samba may have a genuine, subjective fear o f future persecution, the IJ correctly concluded that her f e a r is not objectively reasonable and, thus, not well founded. Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d C i r . 2004).

B e c a u s e Samba failed to raise her claims for w i t h h o l d i n g of removal and CAT relief before the BIA or in h e r brief to this Court, we deem those claims abandoned.

S e e Yueqing Zhang v. Gonzales, 426 F.3d 540, 546 n.7 (2d C i r . 2005).

F o r the foregoing reasons, the petition for review is 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 motion for a stay of removal in t h i s petition is DISMISSED as moot. Any pending request for o r a l argument in this petition is DENIED in accordance with F e d e r a l Rule of Appellate Procedure 34(a)(2), and Second C i r c u i t Local Rule 34(d)(1).

F O R THE COURT: C a t h e r i n e O'Hagan Wolfe, Clerk B y :

---