Filed: Jun. 04, 2010
Latest Update: Feb. 21, 2020
Summary: 09-2914-ag Lushaj v. Holder BIA Sichel, IJ A097 966 139 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: 09-2914-ag Lushaj v. Holder BIA Sichel, IJ A097 966 139 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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09-2914-ag
Lushaj v. Holder
BIA
Sichel, IJ
A097 966 139
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 4 th day of June, two thousand ten.
PRESENT:
JON O. NEWMAN,
ROBERT A. KATZMANN,
PETER W. HALL,
Circuit Judges.
_______________________________________
LINDITA LUSHAJ,
Petitioner,
v. 09-2914-ag
NAC
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Howard Baker, New York, New York.
FOR RESPONDENT: Tony West, Asst. Atty. General, Luis
E. Perez, Senior Litigation Counsel,
Elizabeth D. Kurlan, Trial Atty.,
Office of Immigration Litigation,
Civil Division, United States Depart-
ment of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
review is DENIED.
Petitioner Lindita Lushaj, a native and citizen of
Albania, seeks review of a June 12, 2009, order of the BIA,
reversing the April 25, 2007, decision of Immigration Judge
(“IJ”) Helen Sichel, which had granted her application for
asylum. In re Lindita Lushaj, No. A097 966 139 (B.I.A. June
12, 2009), rev’g No. A097 966 139 (Immig. Ct. N.Y. City Apr.
25, 2007). We assume the parties’ familiarity with the
underlying facts and procedural history of the case.
Under the circumstances of this case, we review only the
decision of the BIA. See Yan Chen v. Gonzales, 417 F.3d 268,
271 (2d Cir. 2005). The applicable standards of review are
well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng
v. Holder,
562 F.3d 510, 513 (2d Cir. 2009).
As an initial matter, with respect to her claim of
persecution on account of membership in a recognized social
group, we decline to consider Lushaj’s unexhausted arguments
that she is a member of a particular social group composed of:
(1) “young women in Albania”; (2) “women who were previously
targeted for sex-trafficking by members of the Haklaj gang and
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who managed to escape and avoid capture”; and (3) “teenage or
young adult females from families well-known in the town of
Tropoje to have been pro-Democratic Party sympathizers and to
have been anti-communist and anti-Socialist Party opponents.”
See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20
(2d Cir. 2007). 1 Rather, we confine our review to the legal
theory Lushaj advanced before the BIA; namely, that: (1) the
IJ did not err in finding that she was a member of the
particular social group of women whom “members of the Haklaj
gang wished to kidnap . . . and force . . . into prostitution,
at least in part to punish [their] family members for their
political activities in Albania”; and (2) she had a well-
founded fear of future persecution based on an imputed
political opinion.
The BIA concluded that the IJ erred when she found Lushaj
to be a member of a particular social group. In the BIA’s
view, the IJ’s definition of Lushaj’s purported social group
was “circular” because it was based exclusively on the
persecution that its members suffered or feared. See Ucelo-
1
Before the BIA, Lushaj argued that she belonged to a group
comprised of “teenage or young adult desirable females from families
well-known in the town of Tropoje to have been pro-Democratic Party
sympathizers and to have been anti-communist and anti-Socialist Party
opponents.” Lushaj concedes that the BIA properly found the term
“desirable” is not sufficiently particular or well-defined. See Ucelo-
Gomez v. Gonzales, 509 F.3d 70, 73 (2d Cir. 2007).
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Gomez, 509 F.3d at 73 (citing Matter of A-M-E- & J-G-U-, 24 I.
& N. Dec. 69, 74 (B.I.A. 2007) (holding that a social group
cannot be defined exclusively by the fact that its members
have been subjected to harm.)). This view may well be
reasonable, and appears to be acknowledged by the petitioner,
at least with respect to her claim of past persecution. See
Brief for Petitioner at 18, 34. But it is also reasonable to
think that the BIA was somewhat misinterpreting the IJ’s
point, which may have been that Lushaj was a member of a group
of women identified by the political views of their families,
and that, as a member of this “group,” she had become a
potential target of the Haklaj gang. Even on this
interpretation, however, the “group” would not qualify as a
social group within the meaning of 8 U.S.C. § 1101(a)(42(A) in
the absence of any evidence that such a “group” was perceived
as a discrete group by Albanian society. See Matter of S-E-G-,
24 I. & N. Dec. 579, 586-87 (B.I.A. 2008).
The BIA also properly found that Lushaj failed to
demonstrate that any harm she suffered or feared was on
account of an imputed political opinion. Indeed, Lushaj
failed to support her claim with evidence indicating that the
Haklaj gang targeted her for any reason other than pecuniary
gain. See Melgar de Torres v. Reno, 191 F.3d 307, 314 n.3 (2d
-4-
Cir. 1999) (“[g]eneral violence in El Salvador does not
constitute persecution, nor can it form a basis for
petitioner’s well-founded fear of persecution”); see also Jian
Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (holding
that, absent solid support in the record, his fear was
“speculative at best”). Accordingly, substantial evidence
supports the agency’s conclusion that Lushaj failed to
demonstrate the requisite nexus to a protected ground. 8
U.S.C. § 1252(b)(4)(B).
Because the BIA reasonably found that Lushaj failed to
establish that any harm she suffered or feared bore a nexus to
a protected ground, it reasonably denied her application for
asylum and withholding of removal. See Paul v. Gonzales, 444
F.3d 148, 156 (2d Cir. 2006). Thus, we need not definitively
adjudicate Lushaj’s argument that she otherwise established
past persecution or a well-founded fear of future persecution,
although the BIA appears to have reasonably concluded that her
fears relate to a private gang motivated by pecuniary gain,
rather than to apprehended action by the Albanian government.
Furthermore, the BIA reasonably denied Lushaj’s claim for
relief under the Convention Against Torture because she failed
to provide any particularized evidence indicating that she
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more likely than not would be tortured if she returned to
Albania. See Wang v. Ashcroft, 320 F.3d 130, 143-44 (2d Cir.
2003).
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 Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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