Filed: Aug. 23, 2012
Latest Update: Mar. 26, 2017
Summary: 11-5162 Gega v. Holder BIA Straus, I.J. A200 082 837 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 NO
Summary: 11-5162 Gega v. Holder BIA Straus, I.J. A200 082 837 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 NOT..
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11-5162
Gega v. Holder
BIA
Straus, I.J.
A200 082 837
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 New
4 York, on the 23rd day of August, two thousand twelve.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 BARRINGTON D. PARKER,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11
12
13 LEONARD GEGA,
14 Petitioner,
15
16 v. 11-5162
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21
22
23 FOR PETITIONER: Elyssa N. Williams, Formica Williams,
24 P.C., New Haven, Connecticut.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; Mary Jane Candaux, Assistant
28 Director; Laura M.L. Maroldy, Trial
29 Attorney, Office of Immigration
30 Litigation, United States Department of
31 Justice, Washington, D.C.
32
1
2 UPON DUE CONSIDERATION of this petition for review of a
3 Board of Immigration Appeals (“BIA”) decision, it is hereby
4 ORDERED, ADJUDGED, AND DECREED that the petition for review is
5 DISMISSED in part AND DENIED in part.
6 Petitioner Leonard Gega, a native and citizen of Albania,
7 seeks review of a November 16, 2011, decision of the BIA
8 affirming the June 14, 2010, decision of Immigration Judge
9 (“IJ”) Michael W. Straus denying his application for asylum,
10 withholding of removal and relief under the Convention Against
11 Torture (“CAT”). In re Leonard Gega, No. A200 082 837 (B.I.A.
12 Nov. 16, 2011), aff’g No. A200 082 837 (Immig. Ct. Hartford
13 June 14, 2010). We assume the parties’ familiarity with the
14 underlying facts and procedural history of the case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision as modified by the BIA decision. See Xue
17 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.
18 2005). The applicable standards of review are well-
19 established. See 8 U.S.C. § 1252(b)(4)(B); see also Chuilu
20 Liu v. Holder,
575 F.3d 193, 196 (2d Cir. 2009).
21 Title 8, Section 1158(a)(3) of the United States Code
22 provides that no court shall have jurisdiction to review the
23 agency’s finding that an asylum application was untimely under
2
1 8 U.S.C. § 1158(a)(2)(B), or its finding of neither changed
2 nor extraordinary circumstances excusing the untimeliness
3 under 8 U.S.C. § 1158(a)(2)(D). While the courts retain
4 jurisdiction, under 8 U.S.C. § 1252(a)(2)(D), to review
5 constitutional claims and “questions of law,” in this case,
6 Gega has challenged only purely factual determinations and the
7 agency’s exercise of discretion. Therefore, we lack
8 jurisdiction to review the agency’s denial of asylum. See
9 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329-31
10 (2d Cir. 2006).
11 Substantial evidence supports the agency’s conclusion
12 that, even if Gega suffered past persecution in Albania,
13 fundamental changes in conditions in that country rebut the
14 presumption that he has a well-founded fear of future
15 persecution. See 8 C.F.R. § 1208.13(b). As noted by the BIA,
16 the 2006 Asylum Profile reflects that the Democratic Party –
17 rather than the communists– is in power in Albania, and that
18 “there are no indications of systemic political persecution”
19 there. Gega himself testified that the Democratic Party
20 controls the police, and that the members of the Zyberi family
21 who had previously threatened him were no longer members of
22 the national or local police force. Further, Gega testified
3
1 that his father and five siblings remain in Albania without
2 harm. See Matter of A-E-M-, 21 I. & N. Dec. 1157, 1160 (BIA
3 1998) (finding that an applicant’s claim of future persecution
4 was undercut by the fact that his co-applicant and other
5 relatives remained in Peru without harm after he left).
6 Gega argues that the agency erred in concluding that
7 fundamental changes in Albania rebut the presumption that he
8 has a well-founded fear of future persecution on the basis of
9 religious persecution he experienced in Albania, rather than
10 persecution motivated by his political opinion. Gega,
11 however, points to nothing in the record that supports his
12 claim that he would experience religious persecution if he
13 returned to Albania. Absent “solid support” in the record
14 that his fear is objectively reasonable, Gega’s claim that he
15 fears future persecution is “speculative at best.” Jian Xing
16 Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (per curiam).
17 Finally, because Gega offered no other evidence that he
18 would likely be tortured in Albania, the agency did not err in
19 denying his application for CAT relief as that claim was based
20 on the same factual predicate as his asylum and withholding of
21 removal claims. See Paul v. Gonzales,
444 F.3d 148, 156-57
22 (2d Cir. 2006).
4
1 For the foregoing reasons, the petition for review is
2 DISMISSED in part and DENIED in part. As we have completed
3 our review, any stay of removal that the Court previously
4 granted in this petition is VACATED, and any pending motion
5 for a stay of removal in this petition is DISMISSED as moot.
6 Any pending request for oral argument in this petition is
7 DENIED in accordance with Federal Rule of Appellate Procedure
8 34(a)(2), and Second Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
11
12
13
14
5
