         11-2020-ag
         Yanti v. Holder
                                                                                       BIA
                                                                               A089 253 252
                                                                               A089 253 253


                            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 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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 11th day of May, two thousand twelve.
 5
 6       PRESENT:
 7                JOSEPH M. McLAUGHLIN,
 8                JOSÉ A. CABRANES,
 9                BARRINGTON D. PARKER,
10                     Circuit Judges.
11       _____________________________________
12
13       EKA YANTI, HERMANTO KHOMAN,
14                Petitioners,
15                                                              11-2020-ag
16                         v.                                   NAC
17
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONERS:              Theodore N. Cox, New York, New York.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General; Paul Fiorino, Senior
27                                     Litigation Counsel; Derek C. Julius,
28                                     Senior Litigation Counsel, Office of
29                                     Immigration Litigation, United
30                                     States Department of Justice,
31                                     Washington, D.C.
 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       Petitioners Eka Yanti and Hermanto Khoman, natives and

 6   citizens of Indonesia, seek review of an April 19, 2011,

 7   decision of the BIA denying their motion to reopen removal

 8   proceedings.     In re Eka Yanti and Hermanto Khoman, Nos. A089

 9   253 252/253 (B.I.A. Apr. 19, 2011).     We assume the parties’

10   familiarity with the underlying facts and procedural history

11   of the case.

12       We review the BIA’s denial of a motion to reopen for

13   abuse of discretion.     See Ali v. Gonzales, 448 F.3d 515, 517

14   (2d Cir. 2006).     As the Government correctly argues, in

15   their motion to reopen, petitioners did not challenge the

16   BIA’s dispositive finding that Yanti can safely relocate in

17   Indonesia.     In addition to the statutory requirement that

18   petitioners exhaust the categories of relief they seek, 8

19   U.S.C. § 1252(d)(1), petitioners must also raise to the BIA

20   the specific issues they later raise in this Court.     See

21   Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004).     While not

22   jurisdictional, this judicially imposed exhaustion

23   requirement is mandatory.     Zhong v. U.S. Dep’t of Justice,

                                     2
 1   480 F.3d 104, 119-20 (2d Cir. 2007).   Accordingly, because

 2   petitioners failed to challenge the relocation finding in

 3   the motion to reopen, and because the Government has raised

 4   this failure to exhaust in its brief to this Court, we

 5   decline to consider this issue.   See id. at 124 (describing

 6   the issue exhaustion requirement as an “affirmative defense

 7   subject to waiver”).

 8       This alone provides a basis for denying the petition

 9   for review.   Because the agency’s finding that Yanti could

10   safely relocate was dispositive of the petitioners’ claims,

11   see 8 C.F.R. §§ 1208.13(b), 1208.16(b)(2) and (c)(3);

12   Steevenez v. Gonzales, 476 F.3d 114, 117-18 (2d Cir. 2007)

13   (“An alien’s ability to relocate safely constitutes a

14   ground, in and of itself, on which an [Immigration Judge’s]

15   denial of withholding of removal may be based....”); Singh

16   v. BIA, 435 F.3d 216, 219 (2d Cir. 2006) (“Asylum in the

17   United States is not available to obviate re-location to

18   sanctuary in one’s own country.”), and they did not

19   challenge this finding in the motion to reopen or explain

20   why their new evidence demonstrated that there was no area

21   of Indonesia to which they could relcoate, they were unable

22   to establish that the result of the proceedings would be

23   different if they were reopened, see Poradisova v. Gonzales,

                                   3
 1   420 F.3d 70, 78 (2d Cir. 2005) (finding that to prevail on a

 2   motion to reopen, an alien must “establish prima facie

 3   eligibility for asylum, i.e., a realistic chance that [s]he

 4   will be able to establish eligibility” (internal quotation

 5   marks omitted)).

 6       Finally, although brief, the BIA’s decision provides a

 7   sufficient basis for review.    See Wang v. BIA, 437 F.3d 270,

 8   275 (2d Cir. 2006).

 9        For the foregoing reasons, the petition for review is

10   DENIED.   As we have completed our review, any stay of

11   removal that the Court previously granted in this petition

12   is VACATED, and any pending motion for a stay of removal in

13   this petition is DISMISSED as moot.    Any pending request for

14   oral argument in this petition is DENIED in accordance with

15   Federal Rule of Appellate Procedure 34(a)(2), and Second

16   Circuit Local Rule 34.1(b).

17                                 FOR THE COURT:
18                                 Catherine O’Hagan Wolfe, Clerk
19
20
21




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