     13-3349
     Faili v.Lynch
                                                                                       BIA
                                                                                 Laforest IJ
                                                                               A098 977 380
                                                                               A098 977 381
                          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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   18th day of December, two thousand fifteen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            PETER W. HALL,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   HOJATOLLAH FAILI, KADRINUR SEVAL
14   FAILI,
15            Petitioners,
16
17                   v.                                              13-3349
18                                                                   NAC
19
20   LORETTA E. LYNCH, UNITED STATES
21   ATTORNEY GENERAL,
22            Respondent.
23   _____________________________________
24
25   FOR PETITIONER:                     Joshua E. Bardavid, New York, New
26                                       York.
1    FOR RESPONDENT:            Stuart F. Delery, Assistant Attorney
2                               General; Anthony C. Payne, Senior
3                               Litigation Counsel; Liza S. Murcia,
4                               Attorney, Office of Immigration
5                               Litigation, Washington, D.C.
6
7         UPON DUE CONSIDERATION of this petition for review of a

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

9    ORDERED, ADJUDGED, AND DECREED that the petition for review is

10   DENIED.

11        Petitioners Hojatollah Faili, a native of Iran and citizen

12   of Iran and Turkey, and his wife, Kadrinur Seval Faili, a native

13   and citizen of Turkey, seek review of an August 12, 2013,

14   decision of the BIA affirming a September 14, 2011, decision

15   of   an   Immigration   Judge     (“IJ”)   denying   Petitioners’

16   applications for asylum, withholding of removal, and relief

17   under the Convention Against Torture (“CAT”).    In re Hojatollah

18   Faili, Kadrinur Seval Faili, Nos. A098 977 380/381 (B.I.A. Aug.

19   12, 2013), aff’g Nos. A098 977 380/381 (Immig. Ct. N.Y. City

20   Sept. 14, 2011).   We assume the parties’ familiarity with the

21   underlying facts and procedural history in this case.

22        Petitioners do not challenge the agency’s denial of asylum

23   or withholding of removal.      Accordingly, the only portion of

                                      2
1    the agency’s decision that is before this Court is the denial

2    of deferral of removal to Turkey under the CAT.      See Yueqing

3    Zhang v. Gonzales, 426 F.3d 540, 542 n.1, 546 n.7 (2d Cir. 2005).

4    Petitioners stated two bases for deferral of removal to Turkey:

5    a fear of torture by the Iranian government because Mr. Faili

6    had cooperated with the DEA, and a fear of torture by drug

7    smugglers that Mr. Faili helped convict.

8         Petitioners have not exhausted this claim to the extent

9    that they allege a fear of torture in Turkey at the hands of

10   the Iranian government.      Petitioners must raise specific

11   issues with the BIA before raising them in this Court.       See

12   Foster v. INS, 376 F.3d 75, 77-78 (2d Cir. 2004).          Issue

13   exhaustion is mandatory where, as here, the Government points

14   out that the issue was not properly raised below.      Lin Zhong

15   v. U.S. Dep’t of Justice, 480 F.3d 104, 107 n.1 (2d Cir. 2007).

16   Petitioners failed to exhaust this particular CAT claim before

17   the BIA.   Their brief stated only that “these individuals that

18   were arrested are very dangerous and have strong ties to the

19   government of Turkey, as well as Iran,” and did not argue that

20   the Iranian government would reach them in Turkey and torture

                                    3
1    them.    Accordingly, we decline to consider this basis for CAT

2    deferral and address the merits of the claim only as to

3    Petitioners’ fear of drug smugglers.

4          As an initial matter, the BIA’s decision is far from clear

5    as to CAT deferral.         Although the BIA acknowledged that a CAT

6    claim was raised and that Mr. Faili was granted deferral of

7    removal to Iran, it did not mention CAT relief with respect to

8    Turkey.        Thus   the   BIA   may       have   overlooked   this   claim.

9    Nevertheless, remand would be futile because the BIA affirmed

10   the     IJ’s    adverse     credibility        determination,     which    is

11   dispositive of the CAT claim.               Xiao Ji Chen v. U.S. Dep’t of

12   Justice, 471 F.3d 315, 338 (2d Cir. 2006).

13         Deferral of removal under the CAT is a mandatory form of

14   relief that requires the applicant to show that he would more

15   likely than not be tortured in the proposed country of removal.

16   8 C.F.R. §§ 1208.16(c), 1208.17; Khouzam v. Ashcroft, 361 F.3d

17   161, 168 (2d Cir. 2004).          Not all harm rises to the level of

18   torture; rather, it is an “‘extreme form of cruel and inhuman

19   treatment and does not include lesser forms of cruel, inhuman

20   or degrading treatment or punishment that do not amount to

                                             4
1    torture.’”    San Chung Jo v. Gonzales, 458 F.3d 104, 109 (2d Cir.

2    2006)   (quoting    8    C.F.R.    § 1208.18(a)(2)).        Torture   also

3    requires that “government officials know of or remain willfully

4    blind to an act and thereafter breach their legal responsibility

5    to prevent it.”     Khouzam, 361 F.3d at 171.

6        The IJ denied deferral of removal to Turkey for two reasons:

7    the adverse credibility finding and lack of evidence that the

8    Turkish   government          would   acquiesce     to   any    torture.

9    Petitioners    do       not    challenge   the    adverse    credibility

10   determination and it stands as a valid basis for the denial of

11   CAT relief.   Yueqing Zhang, 426 F.3d at 542 n.1, 546 n.7; Shunfu

12   Li v. Mukasey, 529 F.3d 141, 146-47 (2d Cir. 2008) (concluding

13   that unchallenged credibility findings stand as valid basis for

14   the determination).           “[A] petition for CAT relief may fail

15   because of an adverse credibility ruling rendered in the asylum

16   context where the factual basis for the alien’s CAT claim was

17   the same as that rejected in his asylum petition.”               Paul v.

18   Gonzales, 444 F.3d 148, 157 (2d Cir. 2009).

19       The Faili’s contend that their CAT claim can be established

20   independently of the credibility determination because of the

                                           5
1    objective evidence that Mr. Faili was a DEA informant.       This

2    objective evidence does not overcome the credibility problems

3    relating to their alleged fear of drug smugglers.       Mr. Faili

4    was found not credible with respect to a number of facts

5    involving his work with the DEA and alleged fear of harm in

6    Turkey on that basis.      Mr. Faili and the DEA agents gave

7    conflicting testimony about the number of threats that Mr. Faili

8    received and reported, and about who threatened him.    Mr. Faili

9    claims that a Turkish newspaper article revealed his status as

10   an informant; but he failed to corroborate that claim by a copy

11   of the article or by evidence that he tried to locate it.     Mr.

12   Faili said one of the DEA agents “definitely” saw the article,

13   but that agent   could not recall it.   And Mrs. Faili was evasive

14   when asked about her father’s testimony that “there is nothing

15   to fear in Turkey.”      First she said her father must have

16   misunderstood, then she said she disagreed with him without

17   explaining why her view should be credited.          Because the

18   agency’s adverse credibility determination relates to the facts

19   and circumstances underlying the CAT claim, specifically

20   whether the alleged fear was credible,     Mr. Faili’s status as

                                     6
1    a DEA informant does not alone warrant CAT deferral.   See Paul,

2    444 F.3d at 157.

3         Moreover, as the IJ also found, Petitioners otherwise

4    failed to establish that they would be tortured “at the

5    instigation of, or with the consent and acquiescence of a public

6    official.”   8 C.F.R. § 1208.18(a).   One   DEA agent testified

7    that the Turkish police increased patrols around Mr. Faili’s

8    residence in response to his report of a threatening phone call

9    from his sister-in-law.    The Failis have offered no evidence

10   to support their speculation have offered no evidence to support

11   their speculation that the Turkish government will no longer

12   offer them protection because Mr. Faili is no longer a DEA

13   informant.   Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156,

14   160 (2d Cir. 2005) (denying CAT relief because petitioner

15   offered “no additional particularized evidence”); Mu-Xing Wang

16   v. Ashcroft, 320 F.3d 130, 144 (2d Cir. 2003) (denying CAT relief

17   where petitioner “in no way established that someone in his

18   particular alleged circumstances is more likely than not to be

19   tortured” (emphasis in original)).




                                    7
1        For the foregoing reasons, the petition for review is

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

3    that the Court previously granted in this petition is VACATED,

4    and any pending motion for a stay of removal in this petition

5    is DISMISSED as moot.    Any pending request for oral argument

6    in this petition is DENIED in accordance with Federal Rule of

7    Appellate Procedure 34(a)(2), and Second Circuit Local Rule

8    34.1(b).

 9                                 FOR THE COURT:
10                                 Catherine O=Hagan Wolfe, Clerk




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