         08-5197-ag (L); 08-5206-ag (Con)
         Ba v. Holder
                                                                                       BIA
                                                                                   Chew, IJ
                                                                               A098 975 322
                                                                               A098 975 321
                                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 26 th day of January, two thousand ten.
 5
 6       PRESENT:
 7                JOSEPH M. McLAUGHLIN,
 8                JOSÉ A. CABRANES,
 9                DEBRA ANN LIVINGSTON,
10                         Circuit Judges.
11       _________________________________________
12
13       DIANY BA AND MOUSSA KANTE,
14                Petitioners,
15                                                               08-5197-ag (L);
16                         v.                                    08-5206-ag (Con)
17                                                               NAC
18
19       ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL, 1
20                Respondent.
21       _________________________________________
22
23       FOR PETITIONER:                     Theodore Vialet, New York, New York.
24

                  1
              Pursuant to Federal Rule of Appellate Procedure
         43(c)(2), United States Attorney General Eric H. Holder,
         Jr., is substituted for former Attorney General Michael B.
         Mukasey as Respondent in this case.
1    FOR RESPONDENT:          Tony West, Assistant Attorney
2                             General, Mark C. Walters, Senior
3                             Litigation Counsel, Zoe J. Heller,
4                             Office of Immigration Litigation,
5                             Civil Division, United States
6                             Department of Justice, Washington,
7                             D.C.
8
9        UPON DUE CONSIDERATION of these petitions for review of

10   two Board of Immigration Appeals (“BIA”) decisions, it is

11   hereby ORDERED, ADJUDGED, AND DECREED, that the petitions

12   for review are DENIED in part and DISMISSED in part.

13       Petitioner Diany Ba, a native and citizen of France and

14   Mali, and Petitioner Moussa Kante, a native and citizen of

15   Mali, seek review of the September 24, 2008 orders of the

16   BIA affirming the February 1, 2007 decision of Immigration

17   Judge (“IJ”) George T. Chew, denying their applications for

18   asylum, withholding of removal, and relief under the

19   Convention Against Torture (“CAT”), and Kante’s application

20   for cancellation of removal under 8 U.S.C. § 1229b.    In re

21   Diany Ba, No. A098 975 322 (B.I.A. Sept. 24, 2008), In re

22   Moussa Kante, No. A098 975 321 (B.I.A. Sept. 24, 2008),

23   aff’g No. A098 975 321, A098 975 322 (Immig. Ct. N.Y. City

24   Feb. 1, 2007).    We assume the parties’ familiarity with the

25   underlying facts and procedural history of the case.

26       Under the circumstances of this case, we review the


                                    2
1    decision of the IJ as supplemented by the BIA.     See Yan Chen

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

3    applicable standards of review are well-established.

4    8 U.S.C. § 1252(b)(4)(B); Salimatou Bah v. Mukasey, 529 F.3d

5    99, 110 (2d Cir. 2008).

6    I.   Diany Ba, Docket No. 08-5197-ag

7         Substantial evidence supports the agency’s conclusion

8    that Ba failed to establish that she has a well founded fear

9    of persecution in Mali or France based on her inter-caste

10   marriage.   In support of that finding, the agency reasonably

11   relied on the lack of sufficient corroborating evidence

12   regarding the caste system in Mali.     Diallo v. INS, 232 F.3d

13   279, 284 (2d Cir. 2000).   Furthermore, the agency did not

14   err in declining to give weight to the Wikipedia article

15   describing the caste system in Africa.     See Xiao Ji Chen v.

16   U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006)

17   (citing Asociacion de Compositores y Editores de Musica

18   Latino Americana v. Copyright Royalty Tribunal, 854 F.2d 10,

19   13 (2d Cir.1988)).   Because Ba was unable to meet her burden

20   to establish her eligibility for asylum, she was necessarily

21   unable to meet the higher standard required to succeed on a

22   claim for withholding of removal.     See Paul v. Gonzales, 444

23   F.3d 148, 156 (2d Cir. 2006).

                                     3
1    II.   Moussa Kante, Docket No. 08-5206-ag

2          A.   Asylum, Withholding of Removal, and CAT Relief 2

3          Substantial evidence supports the agency’s conclusion

4    that “country conditions in Mali are such that the

5    respondent’s life or freedom would not be threatened upon

6    return.”    In support of that finding, the agency reasonably

7    relied on the 2005 U.S. Department of State Report on Human

8    Rights Practices in Mali.    See Tu Lin v. Gonzales, 446 F.3d

9    395, 400 (2d Cir. 2006).    In addition, the IJ reasonably

10   noted that Kante has not lived in Mali since 1994 and failed

11   to submit any evidence to show that he continues to be

12   politically involved with the Union Democratique du Peuple

13   Malien political party since his arrival in the United

14   States.    See Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104

15   (2d Cir. 2005).    Accordingly, the agency did not err when it

16   concluded that Kante failed to establish his eligibility for

17   withholding of removal.

18



           2
          In his appeal to the BIA, Kante failed to challenge
     the IJ's pretermission of his application for asylum or
     argue his well-founded fear of persecution based on his
     inter-caste marriage. Thus, we decline to consider these
     issues because Kante failed to exhaust them before the
     agency. Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104,
     124 (2d Cir.2007).

                                    4
1    B.   Cancellation of Removal

2         Lastly, Kante’s argument that the IJ failed to

3    acknowledge evidence relevant to hardship does not present a

4    constitutional claim or question of law because the IJ, in

5    fact, noted country conditions in Mali and the health

6    conditions of Kante’s United States citizen children.     De La

7    Vega v. Gonzales, 436 F.3d 141, 144 (2d Cir. 2006).     Thus,

8    we lack jurisdiction to review the agency’s denial of

9    Kante’s application for cancellation of removal based on its

10   discretionary determination that he failed to demonstrate

11   “exceptional and extremely unusual hardship” under 8 U.S.C.

12   § 1229b(b)(1)(D).   See 8 U.S.C. § 1252(a)(2)(B)(i).

13        For the foregoing reasons, Ba’s petition for review is

14   DENIED, and Kante’s petition for review is DENIED in part

15   and DISMISSED in part.   As we have completed our review, any

16   stay of removal that the Court previously granted in these

17   petitions is VACATED, and any pending motions for a stay of

18   removal in these petitions are DISMISSED as moot. Any

19   pending requests for oral argument in these petitions are

20   DENIED in accordance with Federal Rule of Appellate

21   Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

22                                  FOR THE COURT:
23                                  Catherine O’Hagan Wolfe, Clerk
24
25
26
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