     16-4201
     Taher v. Sessions
                                                                                   BIA
                                                                               Kolbe, IJ
                                                                           A043 550 073
                              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
 2   for the Second Circuit, held at the Thurgood Marshall United
 3   States Courthouse, 40 Foley Square, in the City of New York,
 4   on the 13th day of March, two thousand eighteen.
 5
 6   PRESENT:
 7            ROBERT A. KATZMANN,
 8                 Chief Judge,
 9            DEBRA ANN LIVINGSTON,
10            SUSAN L. CARNEY,
11                 Circuit Judges.
12   _____________________________________
13
14   MOHAMED FAITHEL TAHER,
15            Petitioner,
16
17                       v.                                      16-4201
18                                                               NAC
19   JEFFERSON B. SESSIONS III,
20   UNITED STATES ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                     Melinda M. Basaran, Paterson, NJ.
25
26   FOR RESPONDENT:                     Chad A. Readler, Acting Assistant
27                                       Attorney General; Linda S.
28                                       Wernery, Assistant Director;
29                                       Janice K. Redfern, Senior
30                                       Litigation Counsel, Office of
31                                       Immigration Litigation, United
32                                       States Department of Justice,
33                                       Washington, DC.
1        UPON DUE CONSIDERATION of this petition for review of a

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

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

4    is DENIED.

5        Petitioner Mohamed Faithel Taher, a native and citizen

6    of Yemen, seeks review of a November 22, 2016 decision of

7    the BIA affirming a June 7, 2016 decision of an Immigration

8    Judge (“IJ”) pretermitting Taher’s applications for asylum,

9    a waiver of inadmissibility, and cancellation of removal,

10   and denying his applications for withholding of removal and

11   relief under the Convention Against Torture (“CAT”).       In re

12   Mohamed Faithel Taher, No. A 043 550 073 (B.I.A. Nov. 22,

13   2016), aff’g No. A 043 550 073 (Immig. Ct. N.Y. City June

14   7, 2016).    We assume the parties’ familiarity with the

15   underlying facts and procedural history in this case.

16       Our jurisdiction to review Taher’s final order of

17   removal is limited to “constitutional claims or questions

18   of law.”    8 U.S.C. § 1252(a)(2)(C), (D).   We review de novo

19   Taher’s legal challenge to the agency’s aggravated felony

20   determination.    Pierre v. Holder, 588 F.3d 767, 772 (2d

21   Cir. 2009).   We conclude that the agency correctly found

22   that Taher’s conviction is an aggravated felony that bars

                                    2
1    him from receiving relief in the form of asylum, waiver of

2    inadmissibility, and cancellation of removal.

3        Contrary to Taher’s position, because the aggravated

4    felony determination related solely to the denial of

5    relief, not the charge of removability, he bore the burden

6    of establishing his eligibility for relief from removal.

7    See 8 U.S.C. §§ 1158(b)(1)(B)(i), 1229a(c)(4)(A); 8 C.F.R.

8    §§ 1240.8(d), 1208.13(a).   An aggravated felony conviction

9    precludes him from receiving relief in the form of asylum,

10   waiver of inadmissibility under 8 U.S.C. § 1182(h), and

11   cancellation of removal.    See 8 U.S.C.

12   §§ 1158(b)(2)(A)(ii), (b)(2)(B)(i), 1182(h), 1229b(a)(3).

13   Taher failed to demonstrate that his 2015 conviction for

14   conspiracy to commit food stamp fraud was not an aggravated

15   felony under 8 U.S.C. § 1101(a)(43)(M)(i) & (U). He does

16   not and, indeed, cannot reasonably dispute that his

17   conviction involved fraud or deceit or that it was a

18   conspiracy conviction.   He challenges the agency’s

19   aggravated felony determination only on the ground that the

20   record did not show a loss in excess of $10,000 as required

21   for a conviction to meet the statutory definition of a

22   fraud aggravated felony.    8 U.S.C.   1101(a)(43)(M)(i).   The

                                    3
1    agency properly relied on the $120,000 restitution award to

2    determine that the loss amount related to his conviction

3    exceeded $10,000.    See Nijhawan v. Holder, 557 U.S. 29, 36-

4    40, 42-43 (2009) (applying the “circumstance specific

5    approach” in analyzing whether applicant was removable and

6    finding “nothing unfair” in agency’s reliance on criminal

7    sentencing documents, including parties’ stipulation and

8    court’s restitution order).    Accordingly, the only relief

9    potentially available to Taher was withholding of removal

10   and under the CAT.   As discussed below, however, Taher has

11   not shown any error in the agency’s denial of those forms

12   of relief.

13       As discussed above, our jurisdiction is limited to

14   reviewing constitutional claims and questions of law.    8

15   U.S.C. § 1252(a)(2)(C), (D).       To qualify for withholding

16   of removal, an applicant must establish that, if removed to

17   the country proposed by the government, he will more likely

18   than not be persecuted on the basis of one of five

19   statutory grounds: “race, religion, nationality, membership

20   in a particular social group, or political opinion.”    8

21   U.S.C. § 1231(b)(3)(A); see 8 C.F.R. § 1208.16(b); Y.C. v.

22   Holder, 741 F.3d 324, 332-33 (2d Cir. 2013).    That he may

                                    4
1    be subjected there to “[g]enerally harsh conditions shared

2    by many others” does not amount to persecution.   Matter of

3    Sanchez & Escobar, 19 I. & N. Dec. 276, 284 (B.I.A. 1985)

4    (finding that harm resulting from countrywide civil strife

5    is not persecution on account of one of the five enumerated

6    grounds); see Melgar de Torres v. Reno, 191 F.3d 307, 314

7    n.3 (2d Cir. 1999) (“General violence . . . does not

8    constitute persecution, nor can it form a basis for

9    petitioner’s . . . fear of persecution.”).   Accordingly,

10   the ongoing war in Yemen does not alone provide an adequate

11   basis for authorizing relief from removal.

12       Taher has not otherwise met his burden to show that he

13   would more likely than not be subject to harm on account of

14   a protected ground (particular social group, religion, or

15   imputed political opinion).    Jin Shui Qiu v. Ashcroft, 329

16   F.3d 140, 146 n.2 (2d Cir. 2003) (“[W]e review de novo the

17   question of law regarding what evidence will suffice to

18   carry an asylum applicant’s burden of proof.”), overruled

19   on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice,

20   494 F.3d 296 (2d Cir. 2007).   Taher did not demonstrate

21   that Yemeni society perceives his purported particular

22   social group of “former United States detainees who have

                                    5
1    been detained for a lengthy period of time” to be socially

2    distinct, particularly as he proffered no country

3    conditions evidence regarding the treatment in Yemen of

4    former U.S. detainees.     See Paloka v. Holder, 762 F.3d 191,

5    196 (2d Cir. 2014) (recognizing that a proposed particular

6    social group must be “defined with particularity” and

7    “socially distinct within the society in question”).    His

8    statement, through counsel, that he believes he could be

9    perceived as supporting or spying for the United States due

10   to his prolonged period of detention is not enough absent

11   any objective basis for his belief that such individuals

12   are singled out.   Jian Xing Huang v. U.S. INS, 421 F.3d

13   125, 129 (2d Cir. 2005) (“In the absence of solid support

14   in the record” a fear of persecution is not objectively

15   reasonable and is “speculative at best.”); Melgar de

16   Torres, 191 F.3d at 311.

17       Similarly, Taher did not carry his burden to establish

18   the requisite nexus between any harm feared by him in Yemen

19   and his status as a “Sunni Muslim with a neutral stance”

20   regarding an ongoing civil war.     He presented no evidence

21   apart from his own testimony that he wished to remain

22   neutral. This record did not demonstrate that he would be

                                     6
1    targeted on the basis of that political opinion.      See INS

2    v. Elias-Zacarias, 502 U.S. 478, 482 (1992) (holding that

3    it is insufficient that the persecutor act from “a

4    generalized political motive” (internal quotation marks

5    omitted)).   Taher’s argument that the agency

6    mischaracterized his claim of imputed political opinion is

7    belied by the record.   As the BIA noted in rejecting this

8    argument, the IJ explicitly considered Taher’s “neutral

9    stance” as a claim of imputed political opinion and Taher’s

10   counsel agreed on the record that the IJ properly

11   characterized the claim.

12       Our jurisdiction to review the agency’s denial of CAT

13   relief based on an applicant’s CIMT conviction is similarly

14   limited to constitutional claims and questions of law.

15   8 U.S.C. § 1252(a)(2)(C), (D); Ortiz-Franco v. Holder, 782

16   F.3d 81, 83 (2d Cir. 2015).   An applicant for CAT relief

17   must establish that he will “more likely than not” be

18   tortured.    8 C.F.R. §§ 1208.16(c)(2), 1208.17(a); Khouzam

19   v. Ashcroft, 361 F.3d 161, 168 (2d Cir. 2004).   In

20   assessing the likelihood of torture, “all evidence relevant

21   to the possibility of future torture shall be considered,

22   including, but not limited to . . . relevant information

                                    7
1    regarding conditions in the country of removal.”    8 C.F.R.

2    § 1208.16(c)(3)(iv).   To satisfy the applicable burden of

3    proof, an applicant for CAT relief must establish that

4    “someone in his particular alleged circumstances is more

5    likely than not to be tortured.”     Mu-Xing Wang v. Ashcroft,

6    320 F.3d 130, 144 (2d Cir. 2003) (emphasis omitted).

7        The agency did not commit an error of law in finding

8    that Taher failed to show that he would more likely than

9    not face torture if returned to Yemen.    Taher argued that

10   he will suffer deprivations and possible violence due to

11   the ongoing civil war, but becoming enmeshed in wartime

12   violence does not, as a matter of law, constitute torture.

13   See 8 C.F.R. § 1208.18(a)(5) (“In order to constitute

14   torture, an act must be specifically intended to inflict

15   severe physical or mental pain or suffering.”); Mu-Xing

16   Wang, 320 F.3d at 134.   The agency did not fail to consider

17   any evidence that Taher submitted.    The agency does not

18   need to “expressly parse or refute on the record each

19   individual argument or piece of evidence offered by the

20   petitioner.” Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d

21   Cir. 2006) (internal quotation marks omitted).    Taher does

22   not identify what evidence not mentioned by the agency

                                   8
1    would show he would likely be targeted for torture.    Nor

2    does he address the observation that his family members

3    remain in Yemen and, although they had to relocate, they

4    have not been tortured. Melgar de Torres, 191 F.3d at 313

5    (explaining that the ability of family members to remain

6    unharmed “cuts against” finding objective basis for harm).

7        For the foregoing reasons, the petition for review is

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

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

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

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

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

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

14   34.1(b).

15                       FOR THE COURT:
16                       Catherine O’Hagan Wolfe, Clerk of Court




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