“In the absence of solid support in the 14 record,” a fear of persecution is not well founded and “is 15 speculative at best.”
How later courts described this case
- “In the absence of solid support in the 14 record,” a fear of persecution is not well founded and “is 15 speculative at best.”
- providing that judicially imposed issue 16 exhaustion is mandatory but not jurisdictional
- providing that 12 exhaustion is jurisdictional with respect to requirement 13 that each category of relief be raised before the BIA
Written by the judges who cited it.
The opinion
16-612
Brown v. Sessions
BIA
Hom, IJ
A037 335 000
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 20th day of April, two thousand eighteen.
5
6 PRESENT:
7 ROBERT D. SACK,
8 DEBRA ANN LIVINGSTON,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 HYACINTH ELIZABETH BROWN,
14 Petitioner,
15
16 v. 16-612
17 NAC
18 JEFFERSON B. SESSIONS, III,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Melissa M. Desvarieux, Dobroshi
24 & Desvarieux, New York, NY.
25
26 FOR RESPONDENT: Chad A. Readler, Acting
27 Assistant Attorney General;
28 Melissa Neiman-Kelting,
29 Assistant Director; Anthony J.
30 Messuri, Trial Attorney, Office
31 of Immigration Litigation,
32 United States Department of
33 Justice, 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 Hyacinth Elizabeth Brown, a native and
6 citizen of Jamaica, seeks review of a February 8, 2016,
7 decision of the BIA affirming an April 14, 2014, decision
8 of an Immigration Judge (“IJ”) denying Brown’s application
9 for asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Hyacinth
11 Elizabeth Brown, No. A037 335 000 (B.I.A. Feb. 8, 2016),
12 aff’g No. A037 335 000 (Immig. Ct. N.Y. City April 14,
13 2014). We assume the parties’ familiarity with the
14 underlying facts and procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision as modified by the BIA, i.e., excluding the
17 pretermission of the asylum application as untimely, which
18 the BIA did not reach. See Xue Hong Yang v. U.S. Dep’t of
19 Justice, 426 F.3d 520, 522 (2d Cir. 2005). The applicable
20 standards of review are well established. See 8 U.S.C.
21 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d
22 Cir. 2009).
23 Our jurisdiction to review a final order of removal
2
1 against an alien, such as Brown, who is removable for a
2 controlled substance offense or a crime involving moral
3 turpitude, is limited to constitutional claims and
4 questions of law. 8 U.S.C. §§ 1252(a)(2)(C), (D),
5 1182(a)(2)(A)(i)(I), (II). Contrary to the Government’s
6 position, however, our jurisdiction is not limited by
7 Brown’s failure to exhaust the questions of law that she
8 now raises in this Court. The Government conflates
9 jurisdictional category-of-relief exhaustion with non-
10 jurisdictional issue exhaustion. Compare Karaj v.
11 Gonzales, 462 F.3d 113, 119 (2d Cir. 2006) (providing that
12 exhaustion is jurisdictional with respect to requirement
13 that each category of relief be raised before the BIA),
14 with Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 122
15 (2d Cir. 2007) (providing that judicially imposed issue
16 exhaustion is mandatory but not jurisdictional).
17 Nevertheless, issue exhaustion—although not jurisdictional—
18 is mandatory. Lin Zhong, 480 F.3d at 122. We therefore
19 decline to reach Brown’s arguments that the agency ignored
20 evidence and misapplied the governing corroboration
21 standards because she failed to exhaust them before the
22 BIA. Id. In doing so, we also note that Brown has waived
23 any challenge to the agency’s nexus determination—which is
3
1 dispositive of asylum and withholding of removal—by failing
2 to identify any protected ground as the basis for the harm
3 she fears or challenge the agency’s nexus determination in
4 this Court. 8 U.S.C. § 1101(a)(42); 8 C.F.R. § 1208.16(b);
5 Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998).
6 Nor do we see any error in the agency’s denial of CAT
7 relief given the lack of objective evidence to show a
8 likelihood of torture. Matter of M-B-A-, 23 I. & N. Dec.
9 474, 479-80 (B.I.A. 2002) (A claim “based on a chain of
10 assumptions and a fear of what might happen” is
11 insufficient to demonstrate eligibility for relief under
12 the CAT.); cf. Jian Xing Huang v. U.S. INS, 421 F.3d 125,
13 129 (2d Cir. 2005) (“In the absence of solid support in the
14 record,” a fear of persecution is not well founded and “is
15 speculative at best.”).
16 For the foregoing reasons, the petition for review is
17 DENIED. As we have completed our review, any stay of removal
18 that the Court previously granted in this petition is VACATED,
19 and any pending motion for a stay of removal in this petition
20 is DISMISSED as moot. Any pending request for oral argument
21
22
23
4
1 in this petition is DENIED in accordance with Federal Rule of
2 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
3 34.1(b).
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
5