         11-3141-ag
         Diombera v. Holder
                                                                                       BIA
                                                                                 Brennan, IJ
                                                                               A093 426 594
                               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 3rd day of May, two thousand twelve.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                RALPH K. WINTER,
 9                DENNY CHIN,
10                     Circuit Judges.
11       _______________________________________
12
13       YOUNOUSS DIOMBERA,
14                Petitioner,
15
16                            v.                                11-3141-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:                Gary J. Yerman, New York, New York.
24
25       FOR RESPONDENT:                Tony West, Assistant Attorney
26                                      General; Ernesto H. Molina, Jr.,
27                                      Assistant Director; D. Nicholas
28                                      Harling, Trial Attorney, Office of
29                                      Immigration Litigation, United
30                                      States Department of Justice,
31                                      Washington, D.C.
 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       Younouss Diombera, a native and citizen of Mali, seeks

 6   review of a July 6, 2011, order of the BIA, affirming the

 7   September 29, 2009, decision of Immigration Judge (“IJ”)

 8   Noel A. Brennan, which denied his application for asylum,

 9   withholding of removal, and relief under the Convention

10   Against Torture (“CAT”).   In re Younouss Diombera, No. A093

11   426 594 (B.I.A. July 6, 2011), aff’g No. A093 426 594

12   (Immig. Ct. N.Y. City Sept. 29, 2009). We assume the

13   parties’ familiarity with the underlying facts and

14   procedural history in this case.

15       Under the circumstances of this case, we have reviewed

16   both the IJ’s and BIA’s decisions.     See Zaman v. Mukasey,

17   514 F.3d 233, 237 (2d Cir. 2008).    The applicable standards

18   of review are well-established.     See 8 U.S.C.

19   § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513

20   (2d Cir. 2009).

21       The agency reasonably concluded that Diombera failed to

22   establish that he suffered past persecution as his claim of

23   persecution was entirely based on the female genital

                                   2
 1   mutilation (“FGM”) to which his wife had been subjected.

 2   See Tao Jiang v. Gonzales, 500 F.3d 137, 141 (2d Cir. 2007)

 3   (stating that    “[a]s a general principle, an asylum

 4   applicant cannot claim past persecution based solely on harm

 5   that was inflicted on a family member on account of that

 6   family member’s political opinion or other protected

 7   characteristic”); Shi Liang Lin v. U.S. Dep’t of Justice,

 8   494 F.3d 296, 308 (2d Cir. 2007) (concluding “that the

 9   statutory scheme unambiguously dictates that applicants can

10   become candidates for asylum relief only based on

11   persecution that they themselves have suffered”).

12       We have has recognized, however, that when an

13   “applicant’s family member was harmed as a means targeting

14   the applicant on some protected ground, that harm may

15   constitute persecution of the applicant.”       Tao Jiang, 500

16   F.3d at 141.    Moreover, we have recognized that, even where

17   the persecutor “neither directly harmed the applicant nor

18   harmed the family member in order to target the applicant,”

19   the harm to an applicant’s family member in conjunction with

20   other factors may be sufficiently severe to amount to past

21   persecution of the applicant.       Id. at 142 (citing Jorge-Tzoc

22   v. Gonzales, 435 F.3d 146, 150 (2d Cir. 2006)).      In such


                                     3
 1   cases, however, the applicant, inter alia, must have been

 2   “within the zone of risk when the family member was harmed,

 3   and suffered some continuing hardship after the incident.”

 4   Id. at 141-42.

 5       Here, the BIA reasonably found that Diombera failed to

 6   establish past persecution based solely on the harm suffered

 7   by his wife.     First, as the BIA noted, nothing in the record

 8   suggested that Diombera’s wife had been subjected to FGM as

 9   a means of targeting Diombera on account of a protected

10   ground, as Diombera testified that his wife’s family forced

11   his wife to undergo the FGM procedure for a second time

12   specifically because they believed that the first FGM

13   procedure (which was performed when his wife was a child)

14   was not done correctly.     See Tao Jiang, 500 F.3d at 141.

15   Moreover, Diombera was not in the “zone of risk” when his

16   wife’s family subjected her to FGM, as he concedes that he

17   did not directly witness the procedure.     Furthermore,

18   Diombera failed to present any evidence that he had suffered

19   lasting physical, emotional, or psychological hardship

20   following the FGM procedure.     See Jorge-Tzoc, 435 F.3d at

21   150; Tao Jiang, 500 F.3d at 141-42.     Finally, contrary to

22   Diombera’s argument, any emotional or psychological harm

23   that Diombera may have suffered as a result of his wife


                                     4
 1   having been subjected to FGM does not in itself constitute

 2   persecution of Diombera. Tao Jiang, 500 F.3d at 141-43

 3   (finding no past persecution where forced abortion resulted

 4   in illness and diminished health to petitioner’s mother,

 5   imposing “anguish . . . and    . . .   economic loss” to him).

 6          Absent past persecution, an applicant may establish

 7   eligibility for asylum by showing that he subjectively fears

 8   persecution on account of an enumerated ground and that his

 9   fear is objectively reasonable.    See Ramsameachire v.

10   Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).     In support of

11   his claim of a well-founded fear, Diombera argues only that

12   he and his wife desire to have more children, and that he

13   would oppose any attempts to subject his future daughter to

14   FGM.    As the BIA found, Diombera’s fear that he would be

15   harmed while trying to protect a daughter who had not yet

16   been born is too speculative to be objectively reasonable.

17   See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005)

18   (finding that an asylum applicant could not base a well-

19   founded fear that he might be subjected to persecution on

20   his desire to have more children in violation of China’s

21   family planning policy because the fear was “speculative”);

22   Lecaj v. Holder, 616 F.3d 111, 117 (2d Cir. 2010) (finding

23   that a “speculative” anxiety does not make a fear of future

24   persecution objectively reasonable).     Therefore, the agency
                                    5
 1   did not err in finding that Diombera failed to demonstrate a

 2   well-founded fear of persecution.     See Ramsameachire, 357

 3   F.3d at 178.

 4       Because Diombera failed to establish past persecution

 5   or a well-founded fear of future persecution on account of a

 6   protected ground, the agency did not err in denying

 7   Diombera’s application for asylum.    Because he failed to

 8   meet the burden of asylum, Diombera necessarily failed to

 9   meet the higher burdens for withholding of removal and CAT

10   relief, as those claims were based on the same factual

11   predicate.     See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

12   2006).

13       For the foregoing reasons, the petition for review is

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

15   removal that the Court previously granted in this petition

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

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

18   oral argument in this petition is DENIED in accordance with

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

20   Circuit Local Rule 34.1(b).

21                                 FOR THE COURT:
22                                 Catherine O’Hagan Wolfe, Clerk
23




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