         09-2737-ag
         Gundogdu v. Holder
                                                                                       BIA
                                                                                    Reid, IJ
                                                                               A099 759 992
                               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 27 th day of May, two thousand ten.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                PETER W. HALL,
 9                DENNY CHIN,
10                   Circuit Judges.
11       _______________________________________
12
13       ISMAIL GUNDOGDU,
14                Petitioner,
15
16                            v.                                09-2737-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       ____________________________________________________________
22
23       FOR PETITIONER:                Jay Ho Lee, New York, New York.
24
25       FOR RESPONDENT:        Tony West, Assistant Attorney
26                              General; Shelley R. Goad, Assistant
27                              Director; Dalin R. Holyoak, Trial
28                              Attorney, Office of Immigration
29                              Litigation, United States Department
30                              of Justice, Washington, D.C.
31            UPON DUE CONSIDERATION of this petition for review of a
32       Board of Immigration Appeals (“BIA”) decision, it is hereby
 1   ORDERED, ADJUDGED, AND DECREED, that the petition for review
 2   is DENIED.
 3
 4        Ismail Gundogdu, a native and citizen of Turkey, seeks
 5   review of a May 29, 2009, order of the BIA affirming the May
 6   5, 2008, decision of Immigration Judge (“IJ”) John B. Reid,
 7   which denied his application for asylum, withholding of
 8   removal, and relief under the Convention Against Torture
 9   (“CAT”). In re Ismail Gundogdu, No. A099 759 992 (B.I.A.
10   May 29, 2009), aff’g No. A099 759 992 (Immig. Ct. Batavia
11   May 5, 2008). We assume the parties’ familiarity with the
12   underlying facts and procedural history in this case.
13
14        Under the circumstances of this case, we review the
15   IJ’s decision as supplemented by the BIA’s decision. See
16   Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
17   applicable standards of review are well-established. See 8
18   U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of
19   Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007).

20   I.   CAT Relief

21        Contrary to the government’s argument, we find that
22   Gundogdu sufficiently exhausted his CAT claim before the
23   BIA. See 8 U.S.C. § 1252(d)(1 (providing that this Court
24   “may review a final order of removal only if . . . the alien
25   has exhausted all administrative remedies available to the
26   alien as of right”). In his appeal brief, Gundogdu cited
27   the CAT standard and made arguments specific to CAT relief.
28   Although these arguments were somewhat conclusory, the BIA,
29   nonetheless, addressed the IJ’s denial of Gundogdu’s CAT
30   claim, finding that he had presented no “persuasive
31   arguments on appeal.” Under these circumstances, we find
32   that Gundogdu exhausted his challenge to the IJ’s denial of
33   CAT relief. See 8 U.S.C. § 1252(d)(1) ; see also Waldron v.
34   INS, 17 F.3d 511, 515 n.7 (2d Cir. 1994) (finding that if
35   the BIA addresses issues not raised by a petitioner, those
36   issues may be considered exhausted and may be reviewed by
37   this Court). Nonetheless, that challenge fails.
38
39        Contrary to Gundogdu’s argument, the record does not
40   demonstrate that the agency failed to consider his testimony
41   or the evidence he submitted in finding him ineligible for
42   CAT relief. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471

                                  2
 1   F.3d 315, 338 n.17 . Gundogdu claimed to fear torture at the
 2   hands of both the Turkish government and the mafia. With
 3   respect to Gundogdu’s fear that he would be imprisoned in
 4   Turkey and tortured in prison, this Court has found it to be
 5   insufficient to establish eligibility for CAT relief claims
 6   such as this one when the applicant fears being imprisoned
 7   in the designated country for violating a generally
 8   applicable law but presents only generalized evidence that
 9   torture occurs in the prisons there. See Mu Xiang Lin v.
10   U.S. Dep’t of Justice, 432 F.3d 156, 159-60 (2d Cir. 2005);
11   Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 143-44 (2d Cir.
12   2003).
13
14        With respect to Gundogdu’s fear of the mafia, the
15   agency reasonably determined that the particular single
16   beating Gundogdu endured did not rise to the level of
17   torture. See Kyaw Zwar Tun v. INS, 445 F.3d 554, 567 (2d
18   Cir. 2006). Thus, even assuming that Gundogdu was likely to
19   experience the same mistreatment in the future, that
20   mistreatment by the mafia would not give rise to a
21   meritorious CAT claim. See 8 C.F.R. §§ 1208.16(c), 1208.17.
22
23   II.   Due Process Claim
24
25        Before the BIA, Gundogdu argued that the IJ did not
26   afford him an adequate opportunity to obtain counsel because
27   he failed to take into account the fact that Gundogdu was
28   incarcerated during his proceedings and was unable to speak
29   English . In his brief to this Court, however, he argues
30   that he suffers from mental illness, and that it should have
31   been apparent to the IJ that he was unable knowingly to
32   waive his right to counsel and represent himself. The
33   Government correctly asserts that this argument is “entirely
34   new.” Accordingly, we decline to consider it. 1 See Lin
35   Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 124 (2d Cir.


             1
            We note that although the BIA is without
       jurisdiction to consider constitutional arguments, it
       does have jurisdiction to consider challenges to the
       procedural fairness of removal proceedings. Thus, any
       such challenge must be raised to the BIA in order to be
       preserved. See United States v. Gonzalez-Roque, 301 F.3d
       39, 47-48 (2d Cir. 2002)

                                  3
 1   2007) (describing the issue exhaustion requirement as an
 2   “affirmative defense subject to waiver”).
 3
 4        To the extent Gundogdu continues to advance the more
 5   general argument that the IJ violated his due process rights
 6   by not affording him an adequate opportunity to obtain an
 7   attorney, that argument fails. In the immigration context,
 8   due process requires that the alien be afforded a full
 9   opportunity to present his claims. See Burger v. Gonzales,
10   498 F.3d 131, 134 (2d Cir. 2007) . Here, the IJ fully
11   explained to Gundogdu what was occurring at every step of
12   the proceedings. He also granted Gundogdu numerous
13   continuances to obtain counsel and to have his evidence
14   translated. At the merits hearing, Gundogdu explained that
15   he had been beaten by the mafia in Turkey and feared future
16   harm because he still owed money to the mafia. He further
17   claimed that he would also be imprisoned for aiding a friend
18   in fraudulently obtaining health insurance, and for
19   illegally obtaining a second passport. Under these
20   circumstances, we find that Gundogdu was given a full and
21   fair opportunity to present his claim. See Michel v. INS,
22   206 F.3d 253, 259 (2d Cir. 2000) (concluding that because
23   the IJ ensured the applicant was fully apprised of what was
24   taking place during the course of his proceedings and
25   continued the proceedings several times to afford the
26   applicant an opportunity to submit complete and accurate
27   information, “the IJ acted, procedurally, exactly as we hope
28   that an IJ would . . . .”); see also Burger, 498 F.3d at
29   134.
30
31        For the foregoing reasons, the petition for review is
32   DENIED. As we have completed our review, any stay of
33   removal that the Court previously granted in this petition
34   is VACATED, and any pending motion for a stay of removal in
35   this petition is DISMISSED as moot. Any pending request for
36   oral argument in this petition is DENIED in accordance with
37   Federal Rule of Appellate Procedure 34(a)(2), and Second
38   Circuit Local Rule 34.1(b).
39
40                              FOR THE COURT:
41                              Catherine O’Hagan Wolfe, Clerk
42
43




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