    09-2956-ag
    Haidara v. Holder
                                                                                  BIA
                                                                             Morace, IJ
                                                                          A095 571 761
                         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.


         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 22 nd day of July, two thousand ten.

    PRESENT:
             GUIDO CALABRESI,
             ROBERT A. KATZMANN,
             REENA RAGGI,
                    Circuit Judges.
    _______________________________________

    SEYDOU HAIDARA,
             Petitioner,

                        v.                                 09-2956-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _______________________________________

    FOR PETITIONER:               Ronald S. Salomon, New York, N.Y.

    FOR RESPONDENT:               Tony West, Assistant Attorney
                                  General; Susan K. Houser, Senior
                                  Litigation Counsel; W. Daniel Shieh,
                                  Trial Attorney, Office of
                                  Immigration Litigation, United
                                  States Department of Justice,
                                  Washington, D.C.
    UPON DUE CONSIDERATION of this petition for review of a

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

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

is DENIED.

    Seydou Haidara, a native and citizen of Sierra Leone,

seeks review of a June 11, 2009, order of the BIA affirming

the November 13, 2007, decision of Immigration Judge (“IJ”)

Phillip Morace, which denied his application for asylum,

withholding of removal, and relief under the Convention

Against Torture (“CAT”).     In re Seydou Haidara, No. A095 571

761 (B.I.A. June 11, 2009), aff’g No. A095 571 761 (Immig.

Ct. N.Y. City Nov. 13, 2007).       We assume the parties’

familiarity with the underlying facts and procedural history

in this case.

    Under the circumstances of this case, where the BIA

adopted the decision of the IJ and merely supplemented it,

we review the IJ’s decision as supplemented by the BIA’s

decision.     See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d

Cir. 2005).     We review an IJ’s factual findings, including

adverse credibility determinations, under the substantial

evidence standard.     See 8 U.S.C. § 1252(b)(4)(B); see also

Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).        We



                                2
review de novo questions of law and the BIA’s application of

law to undisputed facts.     Yanquin Weng, 562 F.3d at 513.

    Petitioners must raise to the BIA the specific issues

they later raise in this Court.     See Foster v. INS, 376 F.3d

75, 78 (2d Cir. 2004).     While not jurisdictional, this

judicially-imposed exhaustion requirement is mandatory.       Lin

Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d

Cir. 2007).   Here, Haidara failed to challenge the IJ’s

dispositive adverse credibility determination on appeal to

the BIA, and the Government has raised his failure to

exhaust in its brief to this Court.     Accordingly, we decline

to consider this dispositive finding. 1   See id. at 124

(describing the issue exhaustion requirement as an

“affirmative defense subject to waiver.”).



       1
        We note that Haidara was represented by the same
  attorney before the BIA as well as this Court. We are
  not in a position to determine here whether Haidara would
  succeed on a claim for ineffective assistance of counsel
  given the extremely stringent procedural requirements of
  In re Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988); see
  also In re Compean, 25 I. & N. Dec. 1 (A.G. 2009)(Lozada
  controls until such time, if any, as the Department of
  Justice establishes a superseding framework for review).
  But it appears to us, at minimum, that counsel fell short
  of his responsibilities to his client by failing to raise
  Haidara’s claims before the BIA, resulting in Haidara’s
  failure to exhaust these claims and foreclosing our
  review. We therefore instruct counsel specifically to
  call our concerns to Haidara’s personal attention so that
  he is able to assess what further action he might pursue.

                                3
    For the foregoing reasons, the petition for review is

DENIED.

                           FOR THE COURT:
                           Catherine O’Hagan Wolfe, Clerk




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