         08-3685-ag
         Kinaj-Gjuraj v. Holder
                                                                                       BIA
                                                                                   Lamb, IJ
                                                                                A98 719 009
                                  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 1 st day of February, two thousand ten.
 5
 6       PRESENT:
 7                 ROSEMARY S. POOLER,
 8                 ROBERT D. SACK,
 9                 DEBRA ANN LIVINGSTON,
10                              Circuit Judges.
11       _______________________________________
12
13       LIZABETH KINAJ-GJURAJ,
14                Petitioner,
15
16                          v.                                  08-3685-ag
17                                                              NAC
18       ERIC H. HOLDER, Jr., ATTORNEY GENERAL, 1
19                Respondent.
20       _______________________________________
21
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23
24
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                       1
                   Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
             Attorney General Eric H. Holder, Jr., is automatically substituted
             for former Attorney General Michael B. Mukasey as respondent in this
             case.
 1   FOR PETITIONER:        Andrew P. Johnson, New York, New
 2                          York.
 3
 4   FOR RESPONDENT:        Michael F. Hertz, Acting Assistant
 5                          Attorney General, Stephen J. Flynn,
 6                          Assistant Director, Arthur L. Rabin,
 7                          Attorney, Office of Immigration
 8                          Litigation, Civil Division, United
 9                          States Department of Justice,
10                          Washington, D.C.
11
12       UPON DUE CONSIDERATION of this petition for review of a

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

14   hereby ORDERED, ADJUDGED, AND DECREED that the petition for

15   review is DENIED.

16       Petitioner Lizabeth Kinaj-Gjuraj, a native and citizen

17   of Albania, seeks review of a June 27, 2008 order of the BIA

18   affirming the April 25, 2007 decision of Immigration Judge

19   (“IJ”) Elizabeth Lamb, denying her applications for asylum,

20   withholding of removal, and relief under the Convention

21   Against Torture (“CAT”).   In re Kinaj-Gjuraj, No. A98 719

22   009 (B.I.A. Jun. 27, 2008), aff’g No. A98 719 009 (Immig.

23   Ct. N.Y. City Apr. 25, 2007).       We assume the parties’

24   familiarity with the underlying facts and procedural history

25   of the case.

26       When the BIA adopts the decision of the IJ and

27   supplements the IJ’s decision, we review the decision of the

28   IJ as supplemented by the BIA.       See Yan Chen v. Gonzales,

29   417 F.3d 268, 271 (2d Cir. 2005).       We review the agency’s



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1    factual findings, including adverse credibility

2    determinations, under the substantial evidence standard.

3    8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519

4    F.3d 90, 95 (2d Cir. 2008).   We review de novo questions of

5    law and the application of law to undisputed fact.     See,

6    e.g., Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.

7    2008).

8        We decline to review Kinaj-Gjuraj’s argument that she

9    is eligible for asylum and withholding of removal when, as

10   the Government asserts and the BIA noted in its decision,

11   Kinaj-Gjuraj failed to raise before the BIA any challenge to

12   the IJ’s finding that her claim bore no nexus to a protected

13   ground.   See Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004)

14   (per curiam) (holding that petitioners must raise to the BIA

15   specific issues they later raise in this Court); Lin Zhong

16   v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20, 124 (2d Cir.

17   2007) (stating that, while not a jurisdictional issue, this

18   judicially imposed exhaustion requirement is mandatory and

19   an “affirmative defense subject to waiver”).    Because an

20   applicant for asylum and withholding of removal must

21   demonstrate that the persecution she suffered or fears is on

22   account of her race, religion, nationality, political

23   opinion, or particular social group, 8 U.S.C.

24   §§ 1101(a)(42), 1231(b)(3), Kinaj-Gjuraj’s failure to


                                   3
1    exhaust is fatal to both her asylum and withholding of

2    removal claims.   See Steevenez v. Gonzales, 476 F.3d 114,

3    118 (2d Cir. 2007) (finding that, where a petitioner fails

4    to challenge a finding that constitutes a ground, in and of

5    itself, on which an IJ’s denial of relief was based, that

6    failure to exhaust may be fatal to his petition for review).

7        Finally, we find no basis upon which to disturb the

8    agency’s finding that Kinaj-Gjuraj failed to show that the

9    Albanian government would acquiesce in her torture at the

10   hands of human traffickers.    As the IJ observed, she never

11   reported the alleged kidnapings to the police.    Moreover,

12   the country condition evidence she submitted did not

13   constitute particularized evidence that Kinaj-Gjuraj will

14   more likely than not be tortured if returned to Albania.

15   See Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 143-44 (2d Cir.

16   2003).

17       For the foregoing reasons, the petition for review is

18   DENIED.   As we have completed our review, the pending motion

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

20                                 FOR THE COURT:
21                                 Catherine O’Hagan Wolfe, Clerk
22
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