Filed: Dec. 17, 2010
Latest Update: Feb. 21, 2020
Summary: 09-5079-ag Gjoni v. Holder BIA Nelson, IJ A099 592 066 A099 592 067 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 DATABA
Summary: 09-5079-ag Gjoni v. Holder BIA Nelson, IJ A099 592 066 A099 592 067 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 DATABAS..
More
09-5079-ag
Gjoni v. Holder
BIA
Nelson, IJ
A099 592 066
A099 592 067
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
4 New York, on the 17 th day of December, two thousand ten.
5
6 PRESENT:
7 ROGER J. MINER,
8 JOSEPH M. McLAUGHLIN,
9 JOSÉ A. CABRANES,
10 Circuit Judges.
11 _______________________________________
12
13 FRANC GJONI, ALME GJONI
14 Petitioners,
15
16 v. 09-5079-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONERS: Andrew P. Johnson, New York, New
24 York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Greg D. Mack, Senior
28 Litigation Counsel; Shahrzad Baghai,
1 Trial Attorney, Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Franc Gjoni and Alme Gjoni, 1 natives and citizens of
11 Albania, seek review of a November 12, 2009 order of the BIA
12 affirming the February 1, 2008 decision of Immigration Judge
13 (“IJ”) Barbara A. Nelson, which denied their applications
14 for asylum, withholding of removal, and relief under the
15 Convention Against Torture (“CAT”). In re Gjoni, Nos. A099
16 592 066/067 (B.I.A. Nov. 12, 2009), aff’g Nos. A099 592
17 066/067 (Immig. Ct. N.Y. City Feb. 1, 2008). We assume the
18 parties’ familiarity with the underlying facts and
19 procedural history in this case.
20 Under the circumstances of this case, we review the
21 decision of the IJ as supplemented by the BIA. See Yan Chen
22 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
23 applicable standards of review are well-established. See
1
This order refers solely to Franc Gjoni, as his
wife Alme was listed as a derivative applicant in his
application.
2
1 Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008);
2 Shu Wen Sun v. BIA,
510 F.3d 377, 379 (2d Cir. 2007).
3 The regulations require IJs to exercise the Attorney
4 General’s discretion to deny asylum to applicants who
5 establish eligibility based solely on past persecution when
6 the government establishes a fundamental change in
7 circumstances sufficient to rebut the presumption of a well-
8 founded fear of persecution. 8 C.F.R. § 1208.13(b)(1). The
9 agency must provide a reasoned basis for a finding that
10 changed country conditions rebut the presumption of a well-
11 founded fear of persecution where the petitioner suffered
12 past persecution. Niang v. Mukasey,
511 F.3d 138, 148-49
13 (2d Cir. 2007). In other words, “[a] showing of past
14 persecution sets up a rebuttable presumption of a well-
15 founded fear of future persecution, which is overcome only
16 if a preponderance of the evidence establishes that a change
17 in circumstances in the applicant’s country of nationality
18 has occurred such that the applicant’s fear is no longer
19 well-founded.” Jin Shui Qiu v. Ashcroft,
329 F.3d 140, 148
20 (2d Cir. 2003).
21 In this case, there has been an “indisputable
22 historical event” in Albania, Gjoni’s country of
3
1 nationality. Namely, the Socialist Party that persecuted
2 Gjoni is no longer in power and has not been since July
3 2005. See Hoxhallari v. Gonzales, 468 F.3d 179, 187-88 (2d
4 Cir. 2006) (per curiam). Furthermore, the agency relied on
5 both changed country circumstances and specific findings
6 based on record evidence in determining that Gjoni did not
7 have a well-founded fear of persecution. There is no
8 evidence that the new Albanian government is unable or
9 unwilling to protect Gjoni from the individuals who may
10 still wish to harm him. See Ivanishvili v. U.S. Dep’t of
11 Justice,
433 F.3d 332, 342 (2d Cir. 2006).
12 Additionally, it is not improper for the agency to
13 consider an applicant’s claim of a well-founded fear of
14 persecution diminished where, as here, similarly-situated
15 family members remain in his or her native country unharmed.
16 See Melgar de Torres v. Reno,
191 F.3d 307, 313 (2d Cir.
17 1999). Accordingly, substantial evidence supports the
18 agency’s finding that there has been a fundamental change in
19 circumstances in Albania, rebutting the presumption of a
20 well-founded fear of future persecution, and, moreover, that
21 Gjoni does not have an objectively reasonable fear of future
22 persecution, distinct from his past persecution.
4
1 Because Gjoni was unable to show the objective
2 likelihood of persecution needed to make out an asylum
3 claim, he was necessarily unable to meet the higher standard
4 required to succeed on a claim for withholding of removal.
5 See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006);
6 Gomez v. INS,
947 F.2d 660, 665 (2d Cir. 1991).
7 Furthermore, given the change in country conditions, Gjoni
8 has not demonstrated that he would be tortured, with the
9 government’s consent or acquiescence, in Albania. See 8
10 C.F.R. § 1208.17.
11 Although in certain circumstances, an IJ may grant
12 asylum to an applicant who has established past persecution,
13 but not a well-founded fear of future persecution, see 8
14 C.F.R. § 1208.13(b)(1)(iii); Wu Zheng Huang v. INS,
436 F.3d
15 89, 96 (2d Cir. 2006), this so-called “humanitarian asylum”
16 has been reserved for applicants who have suffered
17 “atrocious forms of persecution” or who may suffer “other
18 serious harm upon their return.” See 8 C.F.R.
19 § 1208.13(b)(1)(iii); Matter of Chen, 20 I. & N. Dec. 16, 19
20 (B.I.A. 1989). We have found that to merit a grant of
21 humanitarian asylum on the basis of severe past persecution,
22 an applicant must demonstrate “long-lasting physical or
23 mental effects of his persecution.” Omaro Jalloh v.
5
1 Gonzales, 498 F.3d 148, 152 (2d Cir. 2007). In this case,
2 the IJ reasonably concluded that while Gjoni’s past
3 persecution, including his arrests, detentions, and beatings
4 while detained which led to his hospitalization upon
5 release, was unfortunate, it was not so severe that he
6 merited a discretionary grant of humanitarian asylum,
7 considering the substantial changes in Albania. See
8
Hoxhallari, 468 F.3d at 184–85.
9 Gjoni does suffer from depression and post-traumatic
10 stress disorder; however, the IJ and the BIA did not err
11 when finding that these conditions alone were not enough to
12 merit the grant of humanitarian asylum. Moreover, there was
13 no medical evidence to demonstrate a causal connection
14 between Gjoni’s past persecution and seizure disorder. See
15 Matter of Chen, 20 I. & N. Dec. 16, 19 (B.I.A. 1989). The
16 IJ did not abuse her discretion in denying humanitarian
17 asylum. See 8 U.S.C. § 1252(b)(4)(D); Hoxhallari,
468 F.3d
18 at 184; Wu Zheng
Huang, 436 F.3d at 96.
19 For the foregoing reasons, the petition for review is
20 DENIED. As we have completed our review, any stay of
21 removal that the Court previously granted in this petition
22 is VACATED, and any pending motion for a stay of removal in
23 this petition is DISMISSED as moot. Any pending request for
6
1 oral argument in this petition is DENIED in accordance with
2 Federal Rule of Appellate Procedure 34(a)(2), and Second
3 Circuit Local Rule 34.1(b).
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
6
7
7
