    11-1193-ag
    Banda v. Holder
                                                                                   BIA
                                                                              Straus, IJ
                                                                          A076 197 107



                       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.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 1st day of June, two thousand twelve.

    PRESENT:
             JON O. NEWMAN,
             REENA RAGGI,
             PETER W. HALL,
                  Circuit Judges.
    _____________________________________

    MIRRIEM JALAFI BANDA,
             Petitioner,
                      v.                                   11-1193-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:         Glenn T. Terk, Wethersfield, CT.
    FOR RESPONDENT:         Tony West, Assistant Attorney General;
                            Richard M. Evans, Assistant Director;
                            Allen W. Hausman, Senior Litigation
                            Counsel, Office of Immigration
                            Litigation, Civil Division, United States
                            Department of Justice, Washington, D.C.
    UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

    Petitioner Mirriem Jalafi Banda, a native and citizen

of Malawi, seeks review of a March 1, 2011, order of the BIA

affirming the March 19, 2009, decision of Immigration Judge

(“IJ”) Michael W. Straus denying her application for asylum,

withholding of removal, and relief under the Convention

Against Torture (“CAT”).   In re Mirriem Jalafi Banda, No.

A076 197 107 (B.I.A. Mar. 1, 2011), aff’g No. A076 197 107

(Immig. Ct. Hartford Mar. 19, 2009).   We assume the parties’

familiarity with the underlying facts and procedural history

in this case.

    Under the circumstances of this case, we have reviewed

the IJ’s decision as supplemented by the BIA.    See Yan Chen

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

applicable standards of review are well-established.     See 8

U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,

513 (2d Cir. 2009).

    Before the agency, Banda argued that she would be

tortured and persecuted based on her marriage to a man who

had been tortured by the Malawian government under the

                              2
dictatorship of President Hastings Kamuzu Banda.   The IJ

denied her claim, noting that the dictatorship had ended and

the dictator’s supporters no longer controlled the Malawian

central government.

    Banda now argues that the IJ erred in his analysis

because he did not consider her claim that because Malawi is

a tribal society, her husband’s enemies are still powerful

in the part of Malawi that she is from.   This argument is

unavailing because both the IJ and the BIA explicitly

addressed this claim.   The agency concluded that Banda did

not have a well-founded fear of future persecution because

twenty years had passed since her husband was tortured,

there was no evidence that anyone in Malawi was still

interested in him, and neither he nor Banda were involved in

contemporary Malawian politics.   We defer to the agency’s

assessment of the record.   See Castro v. Holder, 597 F.3d

93, 99 (2d Cir. 2010) ("The agency’s findings of fact are

‘conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.’” (quoting 8 U.S.C.

§ 1252(b)(4)(B)).

    Banda also argues that she will be harmed because of

the general violence, torture, and gender discrimination in

Malawi.   However, we will not address this argument because


                              3
she did not raise it before the BIA.   Lin Zhong v. U.S.

Dep’t of Justice, 480 F.3d 104, 107 n.1, 122 (2d Cir. 2007)

(reaffirming that this Court “may consider only those issues

that formed the basis for [the BIA’s] decision”).

    In sum, substantial evidence supports the agency's

determination that Banda did not establish her eligibility

for asylum or withholding of removal by demonstrating a

well-founded fear of future persecution.   See Ramsameachire

v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).     Because

Banda’s claim for CAT relief was based on the same factual

predicate as her claim for asylum–her fear of persecution

based on her marriage–the agency also did not err in denying

CAT relief.   See Paul v. Gonzales, 444 F.3d 148, 156 (2d

Cir. 2006).

    We note that Banda’s husband, who has HIV, has acquired

permanent resident status and has filed a petition on her

behalf, presumably an I-130 petition for an alien relative,

which, if granted, would allow her to adjust to permanent

resident status when a visa becomes available.     Banda and

her husband are parents of a U.S. citizen child.     Thus,

Banda, who has been in this country since 1992, has

compelling equities to avoid or at least delay removal to

Malawi.

                              4
    Various administrative forms of relief appear to be

worth serious consideration.    The Executive Branch might

delay removal, as a matter of discretion, pending decision

by USCIS on the pending petition to adjust status.     Or the

BIA could reopen sua sponte and continue the removal

proceeding pending the USCIS decision.    Or the Government

might agree to jointly file a motion to reopen, which would

avoid the time limit on a motion to reopen.    Having denied

the petition for review, we have no jurisdiction to require

any specific further action, but we would appreciate being

advised on whatever steps Executive Branch officials might

take in view of Banda’s circumstances.

    For the foregoing reasons, the petition for review is

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

removal that the Court previously granted in this petition

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

this petition is DISMISSED as moot.    Any pending request for

oral argument in this petition is DENIED in accordance with

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

Circuit Local Rule 34.1(b).

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




                               5
