         09-1990-ag
         Diallo v. Holder
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A098 635 172


                             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 30 th day of March, two thousand ten.
 5
 6       PRESENT:
 7                 Ralph K. Winter,
 8                 José A. Cabranes,
 9                 Reena Raggi,
10                     Circuit Judges.
11       _______________________________________
12
13       THIERNO DIALLO,
14                Petitioner,
15
16                          v.                                  09-1990-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               Thierno Diallo, pro se, Brooklyn,
24                                     New York.
   1
   2   FOR RESPONDENT:           Tony West, Assistant Attorney
   3                             General; Emily Anne Radford,
   4                             Assistant Director; Jesse D. Lorenz,
   5                             Trial Attorney, Office of
   6                             Immigration Litigation, Civil
   7                             Division, United States Department
   8                             of Justice, Washington, D.C.
   9
  10       UPON DUE CONSIDERATION of this petition for review of a

  11   Board of Immigration Appeals (“BIA”) decision, it is hereby

  12   ORDERED, ADJUDGED, AND DECREED that the petition for review

  13   is DENIED in part and DISMISSED in part.

14         The Petitioner, Thierno Diallo, a native and citizen of

15     Guinea, seeks review of an April 13, 2009, order of the BIA

16     affirming the August 20, 2007, decision of Immigration Judge

17     (“IJ”) Barbara A. Nelson pretermitting his application for

18     asylum, and denying his application for withholding of

19     removal and relief under the Convention Against Torture

20     (“CAT”).     In re Diallo, No. A098 635 172 (B.I.A. Apr. 13,

21     2009), aff’g No. A098 635 172 (Immig. Ct. N.Y. City Aug. 20,

22     2007).     We assume the parties’ familiarity with the

23     underlying facts and procedural history in this case.

24         Under the circumstances of this case, we review the

25     IJ’s decision as supplemented by the BIA.     See Yan Chen v.

26     Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).     The applicable

27     standards of review are well-established.     Corovic v.



                                       2
 1   Mukasey, 519 F.3d 90, 95 (2d Cir. 2008); Salimatou Bah v.

 2   Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).

 3       Following Diallo’s merits hearing, the IJ pretermitted

 4   his untimely application for asylum and found him not

 5   credible with respect to his withholding of removal and CAT

 6   claims.       Diallo did not challenge these findings with any

 7   specificity on appeal to the BIA, a fact the BIA noted in

 8   its decision.       In his brief before this Court, Diallo for

 9   the first time challenges the IJ’s pretermission of his

10   untimely asylum application and several of the bases for the

11   IJ’s adverse credibility determination.         We deem these

12   arguments unexhausted and will not consider them. 1       See 8

13   U.S.C. § 1252(d)(1); Lin Zhong v. U.S. Dep’t of Justice, 480

14   F.3d 104, 107 (2d Cir. 2007).         Although we may properly

15   consider arguments not raised before the BIA if the BIA

16   nonetheless addressed them, see Xian Tuan Ye v. DHS, 446



               1
             We lack jurisdiction to consider Diallo’s
       unexhausted challenge to the IJ’s pretermission of his
       untimely asylum application, and dismiss the petition for
       review to that extent. See 8 U.S.C. 1252(d)(1).
       Although Diallo’s failure to challenge the IJ’s adverse
       credibility determination before the BIA implicates the
       mandatory (but non-jurisdictional) issue exhaustion
       requirement, see Lin Zhong v. U.S. Dep’t of Justice, 480
       F.3d 104, 119-20 (2d Cir. 2007), we decline to consider
       his arguments.

                                       3
 1   F.3d 289, 296-97 (2d Cir. 2006), we find that the BIA’s mere

 2   reiteration of these findings was insufficient to excuse

 3   Diallo’s failure to challenge them.     See Steevenez v.

 4   Gonzales, 476 F.3d 114, 117 (2d Cir. 2007).

 5       Diallo’s failure to exhaust is fatal to his petition

 6   for review.

 7       For the foregoing reasons, the petition for review is

 8   DENIED in part and DISMISSED in part.     As we have completed

 9   our review, any stay of removal that the Court previously

10   granted in this petition is VACATED, and any pending motion

11   for a stay of removal in this petition is DISMISSED as moot.

12   Any pending request for oral argument in this petition is

13   DENIED in accordance with Federal Rule of Appellate

14   Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
15
16
17                              FOR THE COURT:
18                              Catherine O’Hagan Wolfe, Clerk
19
20




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