Selmani v. Mukasey
Opinion of the Court
SUMMARY ORDER
Enver Selmani, a native and citizen of Macedonia, seeks review of a March 26, 2007 order of the BIA affirming the August 29, 2005 decision of Immigration Judge (“IJ”) Michael W. Strauss, which denied his applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Enver Selmani, No. A98 399 421 (B.I.A. Mar. 26, 2007), aff'g No. A98 399 421 (Immig. Ct. Hartford, Conn. Aug. 29, 2005). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA does not expressly “adopt” the I J’s decision, but its brief opinion closely tracks the IJ’s reasoning, the
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), overruled in part on other grounds by Shi Liang Lin v. U.S. Dept. of Justice, 494 F.3d 296, 305 (2d Cir. 2007). 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). We review de novo questions of law and the application of law to undisputed fact. See, e.g., Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir. 2003).
We conclude that remand is appropriate in this case because the BIA erred in relying on our opinion in Ai Feng Yuan v. U.S. Dep’t of Justice, 416 F.3d 192, 198 (2d Cir. 2005), overruled in part on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305 (2d Cir. 2007), for the proposition that the “single incident” of “detention and beating” that Selmani described was “insufficient to establish ‘past persecution’ as a matter of law.” In Ai Feng Yuan, we found that an applicant who was briefly detained—but not beaten or mistreated—did not suffer harm amounting to persecution. See Ai Feng Yuan, 416 F.3d at 195, 198. In Beskovic v. Gonzales, 467 F.3d 223 (2d Cir. 2006), however, we noted “confusion ... attributable to dicta in Ai Feng Yuan ” regarding the “standard for assessing past persecution claims that involve allegations of physical harm inflicted on a detainee by government officials.” We stated that “Yuan’s dicta is of no assistance ... where physical mistreatment occurs during detention.” Id. at 226 n. 3. Additionally, we clarified that “while the difference between harassment and persecution is necessarily one of degree, the degree must be assessed with regard to the context in which the mistreatment occurs.” Id. at 226 (quoting Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332 (2d Cir. 2006)) (internal citation omitted).
Here, the BIA appears to have misconstrued our holding in Ai Feng Yuan to support a conclusion that Selmani’s claim that he was beaten while in detention must
For the foregoing reasons, the petition for review is GRANTED, the BIA’s decision is VACATED and the case is REMANDED for further proceedings consistent with this order. 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(d)(1).
. By failing to challenge with specificity the BIA’s denial of his application for CAT relief, Selmani has waived any such claim. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n. 7 (2d Cir. 2005) (emphasizing that, ”[i]ssues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal").
. Unlike the IJ, the BIA did not make the alternate finding that, even had Selmani suffered past persecution and was thus entitled to presumption of a well-founded fear of future persecution, the Government had demonstrated fundamentally changed circumstances such that his fear was no longer well-founded. 8 C.F.R. § 208.13(b). Likewise, the BIA declined to reach the IJ’s adverse credibility finding. Accordingly, there are no independent grounds on which we could affirm the BIA’s decision. See Beskovic, 467 F.3d at 227.
Reference
- Full Case Name
- Enver SELMANI v. Michael B. MUKASEY, United States Attorney General
- Status
- Published