         09-3396-ag
         Dieng v. Holder
                                                                                       BIA
                                                                                  Weisel, IJ
                                                                               A093 451 733
                            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 22nd day of October, two thousand ten.
 5
 6       PRESENT:
 7                JOSEPH M. McLAUGHLIN,
 8                JOSÉ A. CABRANES,
 9                RICHARD C. WESLEY,
10                       Circuit Judges.
11       _______________________________________
12
13       IBRAHIMA DIENG, ALSO KNOWN AS DIENG
14       IBRAHIMA,
15                 Petitioner,
16
17                         v.                                   09-3396-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL
21                Respondent.
22       ______________________________________
23
24       FOR PETITIONER:               Brian I. Kaplan, Goldberg & Kaplan,
25                                     LLP, New York, New York.
26
27       FOR RESPONDENT:               Tony West, Assistant Attorney
28                                     General; Cindy S. Ferrier, Senior
29                                     Litigation Counsel; R. Alexander
30                                     Goring, Trial Attorney, Office of
31                                     Immigration Litigation, Civil
32                                     Division, United States Department
33                                     of Justice, 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       Petitioner Ibrahima Dieng, a native and citizen of

 6   Senegal, seeks review of a July 17, 2009, order of the BIA

 7   affirming the July 7, 2008, decision of Immigration Judge

 8   (“IJ”) Robert D. Weisel denying Dieng’s application for

 9   asylum, withholding of removal, and relief under the

10   Convention Against Torture (“CAT”).   In re Ibrahima Dieng,

11   No. A093 451 733 (B.I.A. July 17, 2009), aff’g No. A093 451

12   733 (Immig. Ct. N.Y. City July 7, 2008).   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 review the

16   IJ’s decision as supplemented by the BIA’s decision.   See

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

18   applicable standards of review are well-established.

19   See 8 U.S.C. § 1252(b)(4)(B); Salimatou Bah v. Mukasey, 529

20   F.3d 99, 110 (2d Cir. 2008).

21       Although Dieng asserts that he has suffered

22   “persecution” and “torture,” based on his and his family’s


                                    2
 1   experience in Senegal, he does not meaningfully challenge

 2   the agency’s determination that he failed to establish past

 3   persecution.   As the agency noted, and Dieng does not

 4   dispute, Dieng was never harmed or mistreated while in

 5   Senegal.   His sole argument for past persecution is entirely

 6   based on the suffering and killing of his family members

 7   because of their suspected support for the MFDC.   However,

 8   “[a]s a general principle, an asylum applicant cannot claim

 9   past persecution based solely on harm that was inflicted on

10   a family member on account of that family member’s political

11   opinion or other protected characteristic.”   Tao Jiang v.

12   Gonzales, 500 F.3d 137, 141 (2d Cir. 2007).   Although we

13   have recognized that there may exist circumstances where

14   harm to an applicant’s family member in conjunction with

15   other factors may be sufficiently severe to amount to past

16   persecution, such as a young child witnessing severe harm to

17   their family members, see Jorge-Tzoc v. Gonzales, 435 F.3d

18   146, 150 (2d Cir. 2006), such circumstances do not exist

19   here.   Accordingly, no presumption applies and Dieng was

20   required to establish that he had a well-founded fear of

21   future persecution.


                                   3
 1       Substantial evidence supports the agency’s conclusion

 2   that Dieng failed to establish a likelihood of persecution

 3   upon his return to Senegal.   Although Dieng argues that the

 4   IJ failed to consider his testimony and evidence concerning

 5   the persecution of MFDC members, the record does not compel

 6   this conclusion.   See Xiao Ji Chen v. U.S. Dep’t of Justice,

 7   471 F.3d 315, 337 n.17 (2d Cir. 2006).    Indeed, the IJ

 8   credited Dieng’s testimony that his relatives were killed by

 9   the Senegalese authorities because of their perceived

10   support for the MFDC, but found that: (1) Dieng was not a

11   member of the MFDC; (2) Dieng did not participate in MFDC

12   activities; (3) Dieng was never threatened by the Senegalese

13   authorities at the time his relatives were killed; and

14   (4) despite Dieng’s testimony that Senegalese authorities

15   questioned his wife about his whereabouts, there was no

16   indication that the authorities were interested in him

17   because of his perceived involvement with the MFDC.     As the

18   record supports these findings, the IJ reasonably found that

19   Dieng had not met his burden of establishing a likelihood of

20   persecution upon his return to Senegal.

21       Dieng’s argument that the deaths of his relatives

22   establish that he too will be persecuted because of his


                                   4
 1   perceived support for the MFDC is not supported by the

 2   record.     As the IJ explained, Dieng himself was not involved

 3   with the MFDC and did not submit evidence to show that the

 4   government has particular suspicions of his involvement.

 5   His statements that soldiers have occupied his house and

 6   government authorities have asked his wife whether he is in

 7   the country do not compel the inference that the government

 8   now suspects Dieng of involvement with the MFDC.     See Siewe

 9   v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) (“Where the

10   evidence would support either of competing inferences, the

11   fact that this Court might have drawn one inference does not

12   entitle it to overturn the trial court’s choice of the

13   other.”).     Accordingly, substantial evidence supports the

14   IJ’s conclusion that Dieng failed to establish a likelihood

15   of persecution if he returned to Senegal.

16       Finally, because Dieng’s claim for CAT relief was based

17   on the same factual predicate as his claim for withholding

18   of removal, the agency did not err in denying CAT relief.

19   See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

20       For the foregoing reasons, the petition for review is

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

22   removal that the Court previously granted in this petition


                                     5
1   is VACATED, and any pending motion for a stay of removal in

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

3   oral argument in this petition is DENIED in accordance with

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

5   Circuit Local Rule 34.1(b).

6                                 FOR THE COURT:
7                                 Catherine O’Hagan Wolfe, Clerk
8
9




                                   6
