Al-Shaibi V. Immigration & Naturalization Service
Opinion of the Court
SUMMARY ORDER
Qasem Mosa Al-Shaibi, a native and citizen of Yemen, seeks review of a December 16, 2002 order of the BIA summarily affirming immigration judge (“IJ”) Philip Montante’s October 20, 1997 decision denying Al-Shaibi’s applications for asylum and withholding of deportation. In re Qasem Mosa Al-Shaibi, No. A74 773 403 (B.I.A. Dec. 16, 2002), aff'g A74 773 403 (Immig. Ct. Buffalo, New York Oct. 20, 1997). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
When the BIA summarily affirms the decision of the IJ without issuing an opinion, see 8 C.F.R. § 1003.1(e)(4), this Court reviews the IJ’s decision as the final agency determination. See, e.g., Twum v. INS, 411 F.3d 54, 58 (2d Cir. 2005). We review the agency’s factual findings under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see, e.g., Zhou Yun Zhang v. INS, 386 F.3d 66, 73 & n. 7 (2d Cir. 2004). However, we will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir. 2005); Tian-Yong Chen v. INS, 359 F.3d 121, 129 (2d Cir. 2004); see also Xiao Ji Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 158-60 (2d Cir. 2006) (agreeing with this principle, but avoiding remand, in spite of deficiencies in an adverse credibility determination, because it could be confidently predicted that the IJ would adhere to the decision were the case remanded).
We will not review Al-Shaibi’s CAT claim because these arguments have not been exhausted at the administrative level. See 8 U.S.C. § 1252(d)(1); see generally Gill v. INS, 420 F.3d 82, 86-87 (2d Cir. 2005) (explaining that, in the absence of manifest injustice, petitioners must administratively exhaust the categories of relief they are claiming).
For the foregoing reasons, the petition for review is DENIED. Having 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 DENIED 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(d)(1).
Reference
- Full Case Name
- Qasem Mosa AL-SHAIBI v. IMMIGRATION AND NATURALIZATION SERVICE
- Status
- Published