Filed: Mar. 16, 2011
Latest Update: Feb. 22, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 09-4368 _ SAMIR RADONIQI, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent _ On Petition for Review of an Order of the Board of Immigration Appeals (A094-044-990) Immigration Judge: Honorable Margaret R. Reichenberg _ Submitted Pursuant to Third Circuit LAR 34.1(a) March 10, 2011 Before: FUENTES, VANASKIE and NYGAARD, Circuit Judges (Opinion filed: March 16, 2011 ) _ OPINION _ PER CURIAM. Samir Radoniqi pe
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 09-4368 _ SAMIR RADONIQI, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent _ On Petition for Review of an Order of the Board of Immigration Appeals (A094-044-990) Immigration Judge: Honorable Margaret R. Reichenberg _ Submitted Pursuant to Third Circuit LAR 34.1(a) March 10, 2011 Before: FUENTES, VANASKIE and NYGAARD, Circuit Judges (Opinion filed: March 16, 2011 ) _ OPINION _ PER CURIAM. Samir Radoniqi pet..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-4368
___________
SAMIR RADONIQI,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(A094-044-990)
Immigration Judge: Honorable Margaret R. Reichenberg
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 10, 2011
Before: FUENTES, VANASKIE and NYGAARD, Circuit Judges
(Opinion filed: March 16, 2011 )
___________
OPINION
___________
PER CURIAM.
Samir Radoniqi petitions for review of a final order of removal entered by the
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Board of Immigration Appeals (“BIA”). We will deny the petition for review.
I.
In 2005, Radoniqi entered the United States on a non-immigrant visa as a business
visitor. Although he entered as a citizen of Serbia and Montenegro, he hails from the city
of Peje, in what it is now the nation of Kosovo. Radoniqi overstayed his visa, and the
Department of Homeland Security served a Notice to Appear. Radoniqi conceded his
removability for overstaying, and he sought asylum, withholding of removal, and
Convention Against Torture (“CAT”) relief. Radoniqi, presently age thirty-three, claims
that he suffered past persecution, both before and after the 1998-99 war in Kosovo, and
that he fears future persecution if returned to Kosovo.
Radoniqi alleges that Serbian police officers assaulted him approximately eleven
times between 1995 and 1998, usually at checkpoints as he traveled by bus to school.
The assaults resulted in minor injuries, although on one occasion Radoniqi suffered
broken ribs, and on a second occasion he suffered injury to his upper leg. Radoniqi
claims mixed Albanian and Bosnian ethnicity, and he contends that he was assaulted due
to his Albanian ethnicity.
In early 1999, shortly after the commencement of NATO bombing, the police
forced Radoniqi and his family to leave their home in Peje, compelling them to relocate
to Montenegro for several months. Upon return to Peje after the war ended in July 1999,
Radoniqi discovered that the family home had been burned.
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In 2002, Radoniqi joined the Democratic League of Kosovo (“LDK”), a political
party for which he distributed leaflets, provided financial support, and helped organize
meetings. He also worked for various non-governmental organizations (“NGOs”) after
the war, including an NGO that found foster homes for abandoned children. Radoniqi
claims that he began receiving threatening letters and phone calls from “Albanian
extremists,” who labeled him a traitor and demanded that he cease his LDK activities and
NGO work. In particular, he was harassed beginning in January 2005 by a man named
Muharem Berisha, a member of a rival political party who viewed Radoniqi as a Serb
sympathizer. Berisha and his associates threatened and assaulted Radoniqi on several
occasions in 2005. After the most serious incident, in which Radoniqi was beaten and
hospitalized overnight, Berisha was convicted of assault and sentenced to three months in
prison.
Radoniqi continued to receive threats from Berisha and his associates. He then
procured his visa to enter the United States and decided to seek asylum. (Radoniqi had
previously visited the United States in 2004 as a tourist but returned home.) Radoniqi’s
father continued to receive threats from Berisha after Radoniqi departed. Radoniqi fears
that he will be harmed by Albanian extremists if he returns to Kosovo.
The Immigration Judge (“IJ”) assumed the credibility of Radoniqi’s testimony and
denied relief. The IJ explained that Radoniqi “has described, really, two different worlds
in which he has lived,” the first being “pre-war in Kosovo with the Serbs in power and
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the Albanians were oppressed,” and the second “after this war where he was able to
become a member of a political party that was in a majority when he was there and to
obtain various jobs working for [NGOs].” A.R. at 20-21. As to the pre-war events, the IJ
concluded that, even if those events amounted to persecution, they do not support a
presumption of a well-founded fear of future persecution because Radoniqi’s fear of
returning to Kosovo is unrelated the harm that he suffered before the war. As to the post-
war events, the IJ concluded that those events did not amount to persecution, and, further,
that Radoniqi can relocate to another area to avoid future harm from Albanian extremists.
The IJ ordered removal to Kosovo.
The BIA dismissed Radoniqi’s appeal. It agreed with the IJ that, because
Radoniqi’s current fear of Albanian extremists is unrelated to the alleged incidents of past
persecution by Serbian police, he cannot benefit from a presumption of future
persecution. The BIA concluded that the post-war events did not rise to the level of past
persecution because Radoniqi failed to show that he was mistreated by the government or
by forces that the government was unable or unwilling to control. As to future
persecution, the BIA noted that Radoniqi failed on appeal to challenge the finding that he
can relocate to avoid future contact with Berisha or other extremists, and he failed to
show that relocating to a safe area in Kosovo would be unreasonable. The BIA also
determined that Radoniqi’s account of being beaten by Serbian police and displaced from
his home does not warrant a humanitarian grant of asylum in the exercise of discretion.
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Finally, the BIA concluded that Radoniqi failed to satisfy his burden for withholding of
removal, and it denied CAT relief because Radoniqi failed to show that it is more likely
than not that he would be tortured in Kosovo. Radoniqi timely filed a petition for review.
II.
We have jurisdiction under 8 U.S.C. § 1252(a)(1). Where, as here, the BIA issues
a decision on the merits, we review the BIA’s decision, although we will look to the IJ’s
analysis to the extent that the BIA deferred to or adopted it. See Chavarria v. Gonzalez,
446 F.3d 508, 515 (3d Cir. 2006). “We apply substantial evidence review to agency
findings of fact, departing from factual findings only where a reasonable adjudicator
would be compelled to arrive at a contrary conclusion.” Mendez-Reyes v. Att’y Gen.,
428 F.3d 187, 191 (3d Cir. 2005). We “uphold the findings of the BIA to the extent that
they are supported by reasonable, substantial and probative evidence on the record
considered as a whole[.]” Kayembe v. Ashcroft,
334 F.3d 231, 234 (3d Cir. 2003).
Radoniqi raises four arguments before this Court, which we will address in the
order presented in his brief. First, he contends that the IJ and the BIA erred in failing to
make an explicit determination regarding the credibility of his testimony. The BIA, like
the IJ, assumed the credibility of Radoniqi’s testimony and denied relief. That approach
was perfectly acceptable in this case. Indeed, Radoniqi himself argued in his brief to the
BIA that, because the IJ had deemed his testimony credible, the BIA “must accept the
testimony as true.” A.R. at 36. Radoniqi has shown no prejudice from the BIA’s doing
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so, and we are satisfied that “the absence of a finding on credibility is not significant to
the disposition of the case.” Kayembe, 334 F.3d at 235.
Second, Radoniqi contends that the IJ and the BIA erred by separating the
evidence supporting his claim of past persecution along the lines of pre-war and post-war
events. He argues that his experiences, both before and after the war, should have been
considered in the aggregate to assess whether the harm suffered rose to the level of
persecution. The record fails to support this argument.
Radoniqi testified before the IJ that he was harmed by Serbian police prior to the
war on account of his Albanian ethnicity, whereas after the war, he was harmed by
Berisha and his associates on account of his Bosnian ethnicity, political affiliation, and/or
the perception that he was a “traitor.” As the IJ aptly observed, Radoniqi described “two
different worlds in which he has lived.” The alleged persecutors after the war bore no
relationship to the persecutors before the war, and the events recounted by Radoniqi do
not form an unbroken chain of mistreatment. Rather, the record supports the IJ’s finding
that the war marked a break from the past in Radoniqi’s homeland.
We have held that, “in determining whether actual or threatened mistreatment
amounts to persecution, the cumulative effect of the applicant’s experience must be taken
into account because taking isolated incidents out of context may be misleading.” Cheng
v. Att’y Gen., 623 F.3d 175, 192 (3d Cir. 2010) (quotation marks and alterations
omitted). Here, the IJ and the BIA did not take Radoniqi’s experiences out of context,
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but rather analyzed the events from Radoniqi’s “two worlds” within the context in which
those events transpired in light of the circumstances that prevailed pre-war and post-war.
Further, as the BIA correctly observed, the pre-war events are unrelated to Radoniqi’s
current fear of Albanian extremists in Kosovo. On this record, we discern no reversible
error in the agency’s consideration of the evidence.
Third, Radoniqi argues that the BIA erred in failing to determine whether he
proved a well-founded fear of future persecution, suggesting that the BIA merely held
that he is not entitled to a presumption of a well-founded fear. However, the BIA
expressly ruled that Radoniqi “failed to demonstrate a well-founded fear of persecution
because he could avoid future persecution by relocating to another part of Kosovo.” A.R.
at 4 (citing 8 C.F.R. § 1208.13(b)(1)(i)(B)). The BIA explained that Radoniqi failed to
establish before the IJ that relocating to a safe area would be unreasonable. See 8 C.F.R.
1208.13(b)(2)(C)(ii) (“An applicant does not have a well-founded fear of persecution if
the applicant could avoid persecution by relocating to another part of the applicant’s
country of nationality … if under all the circumstances it would be reasonable to expect
the applicant to do so.”). Moreover, the BIA concluded that, because Radoniqi did not
contest the IJ’s finding regarding relocation on appeal, he waived appellate review. Thus,
contrary to Radoniqi’s suggestion, the BIA did make a finding in which it rejected his
claimed fear of future persecution. Further, and notwithstanding his waiver before the
BIA, Radoniqi has pointed to no record evidence that compels the conclusion that it
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would be unreasonable for him to relocate within Kosovo.
Fourth, and finally, Radoniqi argues that the BIA erred in holding that he is not
entitled to withholding of removal or CAT relief. The BIA denied withholding of
removal on the ground that, because Radoniqi failed to meet his burden of proof for
asylum, he necessarily failed to meet the higher burden of proof required for withholding.
The same holds true before this Court: because Radoniqi has demonstrated no error in
the BIA’s decision to deny asylum, he has not shown that he is eligible for withholding of
removal under the higher standard of proof that governs that relief. As to the separate
issue of CAT relief, the BIA concluded that Radoniqi failed to prove that it is more likely
than not that he would be tortured in Kosovo by, at the instigation of, or with the consent
or acquiescence of a public official or other person acting in an official capacity. While
Radoniqi maintains that he fears torture at the hands of Albanian extremists, he has not
shown that the government would be unwilling or unable to protect him. In the past, on
the one occasion when Radoniqi complained to the police about the actions of Berisha
and his associates, Berisha was arrested and convicted of assault. Substantial evidence
supports the denial of CAT relief.
III.
For the foregoing reasons, we will deny the petition for review.
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