Filed: Oct. 21, 2010
Latest Update: Feb. 21, 2020
Summary: 09-2920-ag Markaj v. Holder BIA Abrams, IJ A096 263 931 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
Summary: 09-2920-ag Markaj v. Holder BIA Abrams, IJ A096 263 931 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 ..
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09-2920-ag
Markaj v. Holder
BIA
Abrams, IJ
A096 263 931
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 21st day of October, two thousand ten.
PRESENT:
REENA RAGGI,
GERARD E. LYNCH,
DENNY CHIN,
Circuit Judges.
_______________________________________
DENADA MARKAJ,
Petitioner,
v. 09-2920-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL
Respondent.
______________________________________
FOR PETITIONER: Joshua E. Bardavid, New York,
New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Melissa Neiman-Kelting,
Senior Litigation Counsel; Stefanie
Notarino Hennes, Trial Attorney,
Office of Immigration Litigation,
Civil Division, United States
Department of Justice, Washington,
D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review is
DENIED.
Petitioner Denada Markaj, a native and citizen of
Albania, seeks review of an June 29, 2009 order of the BIA
affirming the November 19, 2007 decision of Immigration Judge
(“IJ”) Steven R. Abrams denying Markaj’s application for
relief under the Convention Against Torture (“CAT”). In re
Denada Markaj, No. A096 263 931 (B.I.A. June 29, 2009), aff’g
No. A096 263 931 (Immig. Ct. N.Y. City Nov. 19, 2007). We
assume the parties’ familiarity with the underlying facts and
procedural history in this case.
Under the circumstances of this case, we review the IJ’s
decision as supplemented by the BIA’s decision. See Yan Chen
v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the
BIA’s factual findings under the substantial evidence
standard, including those underlying the immigration court’s
determination that an alien has failed to satisfy her burden
of proof, and treat those findings as conclusive unless a
reasonable adjudicator would be compelled to conclude to the
contrary. 8 U.S.C. § 1252(b)(4)(B); Chuilu Liu v. Holder, 575
2
F.3d 193, 196 (2d Cir. 2009).
Substantial evidence supports the BIA’s determination
that Markaj failed to demonstrate that it was “more likely
than not” that she would be subject to torture, 8 C.F.R.
§ 1208.16(c), “by or at the instigation of or with the consent
or acquiescence of a public official or other person acting in
an official capacity” in Albania, id. § 1208.18(a)(1). De La
Rosa v. Holder,
598 F.3d 103, 109 (2d Cir. 2010). While the
record reflects that trafficking of women for sexual
exploitation occurs in Albania,1 and that some police officers
may be involved in trafficking-related corruption, Markaj has
failed to show that Albanian government officials or other
persons acting in an official capacity acquiesce in such
practices. In reaching this conclusion, the IJ relied on the
2006 U.S. Department of State Country Report on Human Rights
Practices for Albania (“Country Report”), which indicates that
Albania’s laws prohibit human trafficking and that law
enforcement officials are making progress in arresting and
prosecuting human traffickers. The IJ specifically noted the
Country Report’s observations that Albania has: (1) developed
1
For purposes of the CAT analysis, the IJ assumed
that abduction, forcing a girl into a trafficking ring,
and selling her into sexual slavery would constitute
torture.
3
a human trafficking strategy and action plan based on United
Nations guidelines that are intended to prevent recruitment
of, and to provide protection for, potential victims; (2)
outlined an approach for prosecuting traffickers; and
(3) arrested and convicted some traffickers. The Country
Report further indicates that during 2006, in contrast to
prior years, there were no reported cases of direct police
involvement in human trafficking in Albania. Based on this
evidence, the agency reasonably determined that the Albanian
government does not acquiesce in trafficking of women.
Although Markaj argues that the agency erroneously
credited the Country Report over the affidavit of her expert,
Bernd Fischer (the “Fischer Affidavit”), she has failed to
show that the record compels a result contrary to that reached
by the agency. We generally defer to the agency’s evaluation
of documentary evidence, Xiao Ji Chen v. U.S. Dep’t of
Justice, 471 F.3d 315, 341-42 (2d Cir. 2006), and we have
observed that U.S. State Department reports are ordinarily
probative, see Tu Lin v. Gonzales,
446 F.3d 395, 400 (2d Cir.
2006). Here, the IJ found that the Fischer Affidavit did not
address, much less contradict, the Country Report’s
observations regarding the Albanian government’s efforts to
4
combat human trafficking. We identify no error in this
conclusion. Furthermore, given the Country Report’s
observation that there were no reported cases of direct police
involvement in human trafficking in Albania during 2006, and
that the Albanian government has successfully prosecuted at
least some traffickers, Markaj’s assertion that police
involvement undermines government efforts to combat human
trafficking does not compel a finding of government
acquiescence. Accordingly, the IJ’s denial of CAT relief was
not erroneous.
To the extent Markaj faults the BIA for not specifically
discussing the Fischer Affidavit, the agency was under no
obligation to do so.2 See Jian Hui Shao v. Mukasey, 546 F.3d
138, 169 (2d Cir. 2008) (“[W]e do not demand that the BIA
expressly parse or refute on the record each individual
argument or piece of evidence offered by the petitioner.”)
(internal quotation marks omitted). Moreover, the BIA
decision does not stand alone, but rather supplements the IJ’s
2
While the government argues that Markaj failed to
exhaust her claim that the agency did not adequately
consider the Fischer Affidavit, Markaj did challenge the
IJ’s determination that she failed to establish a
likelihood that she would be subjected to human
trafficking, and we will not hold a petitioner to “the
exact contours of [her] argument below.” See Gill v.
INS, 420 F.3d 82, 86 (2d Cir. 2005).
5
decision, which did explicitly address Markaj’s arguments
concerning the Fischer Affidavit. See Yan Chen v. Gonzales,
417 F.3d at 271. Thus, the agency adequately considered the
documents supporting Markaj’s CAT claim.
For the foregoing reasons, the petition for review is
DENIED. As we have 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 DISMISSED as moot. Any pending request for oral argument
in this petition is DENIED in accordance with the Federal Rule
of Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
6
