         09-3302-ag
         Kazmi v. Holder
                                                                                        BIA
                                                                                   Straus, IJ
                                                                               A079 076 416
                            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 9 th day of August, two thousand ten.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                DEBRA ANN LIVINGSTON,
 9                DENNY CHIN,
10                        Circuit Judges.
11       _______________________________________
12
13       ZAIN UL ABIDIN KAZMI,
14                Petitioner,
15
16                         v.                                   09-3302-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., U.S. ATTORNEY
19       GENERAL, JANET NAPOLITANO, SECRETARY
20       OF U.S. DEPARTMENT OF HOMELAND
21       SECURITY,
22                 Respondents.
23       ______________________________________
24
25       FOR PETITIONER:               Kevin E. Dehghani, New Haven,
26                                     Connecticut.
27
28       FOR RESPONDENTS:              Tony West, Assistant Attorney
29                                     General; Jennifer Levings, Senior
1                           Litigation Counsel; Tim Ramnitz,
2                           Attorney, Office of Immigration
3                           Litigation, Washington D.C.
4
5        UPON DUE CONSIDERATION of this petition for review of a

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

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

8    is DENIED.

9        Petitioner Zain Ul Abidin Kazmi, a native and citizen

10   of Pakistan, seeks review of the July 9, 2009, order of the

11   BIA affirming the November 8, 2007, decision of Immigration

12   Judge (“IJ”) Michael W. Straus denying his application for

13   asylum, withholding of removal, and relief under the

14   Convention Against Torture (“CAT”).    In Zain Ul Abidin

15   Kazmi, No. A079 076 416 (B.I.A. July 9, 2009), aff’g No.

16   A079 076 416 (Immig. Ct. Hartford, CT Nov. 8, 2007).       We

17   assume the parties’ familiarity with the underlying facts

18   and procedural history in this case.

19       Because the BIA affirmed and supplemented the IJ’s

20   decision, we review both the IJ’s and BIA’s decisions.          See

21   Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).          The

22   applicable standards of review are well-established.

23   See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562

24   F.3d 510, 513 (2d Cir. 2009).


                                     2
1        Title 8, Section 1158(a)(3) of the United States Code

2    provides that no court shall have jurisdiction to review the

3    agency’s finding that an asylum application was untimely

4    under 8 U.S.C. § 1158(a)(2)(B), or its finding of neither

5    changed nor extraordinary circumstances excusing the

6    untimeliness under 8 U.S.C. § 1158(a)(2)(D).

7    Notwithstanding that provision, however, we retain

8    jurisdiction to review constitutional claims and “questions

9    of law.”   8 U.S.C. § 1252(a)(2)(D).   Kazmi argues that the

10   BIA committed legal error by failing to address his

11   challenge to the IJ’s pretermission of his asylum

12   application.   However, the BIA explicitly found that Kazmi

13   “failed to file an application for asylum within one year of

14   last entry, and failed to show extraordinary circumstances

15   relating to the delay, or changes in country conditions or

16   [Kazmi’s] circumstances that materially affected his

17   eligibility for asylum.”   To the extent Kazmi seeks to

18   challenge this finding, we are without jurisdiction to

19   consider it.   See 8 U.S.C. § 1158(a)(3).   Nor has Kazmi

20   raised a constitutional claim or question of law sufficient

21   to fall under § 1252(a)(2)(D).

22       The BIA also did not err in finding that Kazmi failed



                                   3
1    to establish a well-founded fear of persecution if returned

2    to Pakistan.     Kazmi waived any challenge to the BIA’s

3    finding that he could safely relocate within Pakistan by

4    failing to raise the issue in his opening brief.       This is

5    true despite Kazmi’s brief discussion of the BIA’s internal

6    relocation finding in his reply brief.       See F.T.C. v. Verity

7    Int’l, Ltd., 443 F.3d 48, 65 (2d Cir. 2006) (issues raised

8    for the first time in a reply brief are deemed waived).

9    That finding was alone dispositive of his claim for

10   withholding of removal.     See Steevenez v. Gonzales, 476 F.3d

11   114, 117-18 (2d Cir. 2007); see also 8 C.F.R.

12   § 1208.16(b)(3)(i).     Therefore, because the BIA reasonably

13   found that Kazmi failed to establish a well-founded fear of

14   persecution, it did not err in denying his claim for CAT

15   relief because both claims were based on the same factual

16   predicate.     See Xue Hong Yang v. U.S. Dep’t of Justice, 426

17   F.3d 520, 523 (2d Cir. 2005).       In any event, the BIA

18   reasonably found that Kazmi presented no evidence that he

19   would be tortured by or with the acquiescence of the

20   Pakistani government.     See 8 C.F.R. § 1208.18(a)(1).

21       For the foregoing reasons, the petition for review is

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

23   removal that the Court previously granted in this petition

                                     4
1   is VACATED, and any pending motion for a stay of removal in

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

3   oral argument in this petition is DENIED in accordance with

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

5   Circuit Local Rule 34.1(b).

6                                 FOR THE COURT:
7                                 Catherine O’Hagan Wolfe, Clerk
8
9




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