         08-6084-ag
         Yero v. Holder
                                                                                        BIA
                                                                                Van Wyke, IJ
                                                                                A096 267 356
                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.     CITATION TO SUMMARY ORDERS
     FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
     AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.     IN A BRIEF OR OTHER PAPER IN WHICH A
     LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
     ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
     “(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
     TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
     BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
     PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
     HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
     ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
     DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.


 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 10 th day of December, two thousand                nine.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                        Chief Judge,
 9                ROGER J. MINER,
10                DEBRA ANN LIVINGSTON,
11                        Circuit Judges.
12       _______________________________________
13
14       MALICK YERO,
15                Petitioner,
16
17                        v.                                    08-6084-ag
18                                                              NAC
19       ERIC H. HOLDER, Jr., U.S. ATTORNEY
20       GENERAL, 1
21                  Respondent.
22       _______________________________________


                      1
                   Pursuant to Federal Rule of Appellate Procedure
             43(c)(2), Attorney General Eric H. Holder, Jr., is
             automatically substituted for former Attorney General
             Michael B. Mukasey as respondent in this case.
 1   FOR PETITIONER:           Douglas F. Broder, Lindsey N.
 2                             Plotnick, Catherine A. LaRose, K&L
 3                             Gates LLP, New York, New York.
 4
 5   FOR RESPONDENT:           Tony West, Assistant Attorney
 6                             General, Michael P. Lindemann,
 7                             Assistant Director, Christopher C.
 8                             Fuller, Senior Litigation Counsel,
 9                             Office of Immigration Litigation,
10                             Civil Division, United States
11                             Department of Justice, Washington,
12                             D.C.

1        UPON DUE CONSIDERATION of this petition for review of a

2    decision of the Board of Immigration Appeals (“BIA”), it is

3    hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

4    review is DENIED.

5        Petitioner Malick Yero, a native and citizen of

6    Mauritania, seeks review of a November 14, 2008 order of the

7    BIA vacating the October 28, 2004 decision of Immigration

8    Judge (“IJ”) William Van Wyke, granting Yero’s application

9    for asylum and denying his application for withholding of

10   removal.   In re Malick Yero, No. A096 267 356 (B.I.A. Nov.

11   14, 2008), vacating No. A096 267 356 (Immig. Ct. N.Y. City

12   Oct. 28, 2004).     We assume the parties’ familiarity with the

13   underlying facts and procedural history of the case.

14       When the BIA issues an independent decision on remand

15   from this Court, we review the BIA’s decision alone.     See



                                     2
1    Belortaja v. Gonzales, 484 F.3d 619, 622-23 (2d Cir. 2007)

2    (citing Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156,

3    159 (2d Cir. 2005)).     We review the agency’s factual

4    findings under the substantial evidence standard.     8 U.S.C.

5    § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90,

6    95 (2d Cir. 2008).     We review de novo questions of law and

7    the application of law to undisputed fact.     See, e.g.,

8    Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).

9        Contrary to Yero’s argument, the BIA did not violate

10   his due process rights by citing in its decision the 2005

11   State Department report on Mauritania, a more recent report

12   than the 2004 version that appeared in the record,

13   particularly where the 2005 report was not the sole basis

14   for denying Yero relief.     See Shao v. Mukasey, 546 F.3d 138,

15   166-68 (2d Cir. 2008); Burger v. Gonzales, 498 F.3d 131, 135

16   (2d Cir. 2007) (finding that “where administratively noticed

17   facts are the sole basis for the BIA’s reversal of an IJ’s

18   grant of asylum,” the BIA “err[s] by failing to give [the

19   petitioner] advance notice of its intention to consider

20   th[ese] extra-record fact[s].”).     Accordingly, although the

21   BIA is “strongly encourage[d] . . . to adopt procedures to

22   alert the parties of any agency intent to take judicial


                                     3
1    notice of extra-record facts and to afford them an

2    opportunity to be heard,” we find no error in its failure to

3    do so in this case. 2     Shao, 546 F.3d at 167 n.29.

4        The BIA did not conduct de novo review of the IJ’s

5    factual findings.       See 8 C.F.R. § 1003.1(d)(3)(i)

6    (prohibiting the BIA from conducting de novo review of

7    findings of fact).       The BIA’s decision observed that Yero

8    had not articulated “any particular political or religious

9    affiliations or beliefs for which he would be targeted for

10   harm.”       That statement was not inconsistent with the IJ’s

11   findings.       To the contrary, the IJ had found that, with

12   respect to his religion, Yero was “in part undecided, and he

13   feels at ease with being undecided,” and that although he

14   would allow people to characterize him as Christian, he

15   “maintains his own reservations that kept him from making a

16   commitment to a new religion.”        Additionally, with respect

17   to Yero’s political views, the IJ found that they were

18   related “to fundamental decency, human rights, justice, and

19   other large questions that political parties in their

20   various ways try to address,” even though Yero was “not



              2
             We note that the BIA’s claim to the 2005 report in
       its original decision was merely a “see also” cite.

                                       4
1    interested in political parties.”    The BIA’s findings were

2    thus entirely consistent with the IJ’s.      Having echoed the

3    IJ’s findings, the BIA was entitled to reach a different

4    determination regarding Yero’s ultimate eligibility for

5    relief.   See 8 C.F.R. § 1003.1(d)(3)(ii).

6        With respect to Yero’s argument that the BIA erred in

7    its eligibility determination, we are similarly unpersuaded.

8    Yero argues, essentially, that he reasonably fears

9    persecution because Mauritanian authorities will learn of

10   his religious and political views because he will “speak

11   out” about them.   The BIA rejected that claim as

12   impermissibly speculative.    Even assuming that Yero

13   subjectively fears future persecution, “[t]he objective

14   element requires establishment of ‘the context and

15   believability’ of the petitioner’s claim ‘through

16   presentation of reliable, specific, objective supporting

17   evidence.’”   Yang v. Gonzales, 478 F.3d 133, 140-41 (2d Cir.

18   2007) (citation omitted).    However, a fear is not

19   objectively reasonable if it lacks “solid support” in the

20   record and is merely “speculative at best.”      Jian Xing Huang

21   v. INS, 421 F.3d 125, 129 (2d Cir. 2005); see also Hongsheng

22   Leng v. Mukasey, 528 F.3d 135, 142-43 (2d Cir. 2008)


                                    5
1    (holding that the IJ had to determine whether the evidence

2    indicated that government authorities either were aware or

3    likely to become aware of the petitioner’s political

4    activities before determining that he was ineligible for

5    withholding of removal or CAT relief).   Here, Yero did not

6    show that authorities would become aware of his religious or

7    political views.   See Hongsheng Leng, 528 F.3d at 143.      Even

8    assuming that Mauritanian authorities would come to know

9    that Yero had rejected Islam, the State Department indicated

10   that non-Muslims were not punished for their beliefs, and

11   that “[t]he small number of known converts from Islam

12   suffered no social ostracism, and there were no reports of

13   societal or governmental attempts to punish them.”     See

14   Bureau of Democracy, Human Rights, and Labor, U.S. Dep’t of

15   State, Mauritania Int’l Religious Freedom Report 2004.

16   Furthermore, because there was no solid support in the

17   record for Yero’s assertion that he had a well-founded fear

18   of persecution, there is no merit to his argument that the

19   agency erroneously applied to his asylum application a

20   standard higher than a “reasonable possibility” of

21   persecution.   See Jian Xing Huang, 421 F.3d at 129.

22   Accordingly, the BIA properly concluded that Yero had not


                                   6
1    met his burden of proof in establishing his eligibility for

2    asylum.

3        Although, as the government argues, Yero failed to

4    challenge the IJ’s denial of his withholding of removal

5    claim in his appeal to the BIA, the BIA excused Yero’s

6    failure to exhaust when it explicitly found that he “failed

7    to meet the higher burdens for withholding of removal and

8    protection pursuant to the Convention Against Torture.”      See

9    Xian Tuan Ye v. DHS, 446 F.3d 289, 296-97 (2d Cir. 2006);

10   Waldron v. INS, 17 F.3d 511, 515 n.7 (2d Cir. 1994).

11   However, because Yero fails to challenge the BIA’s rejection

12   of his withholding of removal and CAT claims, and because

13   addressing this argument does not appear to be necessary to

14   avoid manifest injustice, we find that any such argument is

15   waived.   See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541

16   n.1, 545 n.7 (2d Cir. 2005).

17       For the foregoing reasons, the petition for review is

18   DENIED.   As we have completed our review, any stay of

19   removal that the Court previously granted in this petition

20   is VACATED, and any pending motion for a stay of removal in

21   this petition is DISMISSED as moot. Any pending request for

22   oral argument in this petition is DENIED in accordance with

                                    7
1   Federal Rule of Appellate Procedure 34(a)(2), and Second

2   Circuit Local Rule 34(b).

3                               FOR THE COURT:
4                               Catherine O’Hagan Wolfe, Clerk
5
6
7                               By:____________________________




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