Filed: Jun. 21, 2016
Latest Update: Mar. 02, 2020
Summary: 14-4590 Jushi v. Lynch BIA Sichel, IJ A097 485 962 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 NOTA
Summary: 14-4590 Jushi v. Lynch BIA Sichel, IJ A097 485 962 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 NOTAT..
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14-4590
Jushi v. Lynch
BIA
Sichel, IJ
A097 485 962
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
TO 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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 21st day of June, two thousand sixteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 ROBERT D. SACK,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 GJOVALIN JUSHI,
14 Petitioner,
15
16 v. 14-4590
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Aleksander Boleslaw Milch, Hebrew
24 Immigrant Aid Society, New York,
25 New York.
26
27 FOR RESPONDENT: Benjamin C. Mizer, Principal
28 Deputy Assistant Attorney General;
29 Cindy S. Ferrier, Assistant
30 Director; Joseph A. O’Connell,
31 Attorney, Office of Immigration
32 Litigation, United States
33 Department of Justice, Washington,
34 D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Gjovalin Jushi, a native and citizen of
6 Albania, seeks review of a December 3, 2014, decision of the
7 BIA affirming the May 10, 2012, decision of an Immigration
8 Judge (“IJ”) denying Jushi’s application for asylum,
9 withholding of removal, and relief under the Convention
10 Against Torture (“CAT”), and denying in the first instance
11 Jushi’s motion to remand. In re Gjovalin Jushi, No. A097
12 485 962 (B.I.A. Dec. 3, 2014), aff’g No. A097 485 962
13 (Immig. Ct. N.Y. City May 10, 2010). We assume the parties’
14 familiarity with the underlying facts and procedural history
15 in this case.
16 We have reviewed the IJ’s decision as supplemented by
17 the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
18 Cir. 2005). The applicable standards of review are well
19 established. See Li Yong Cao v. U.S. Dep’t of Justice, 421
20 F.3d 149, 156 (2d Cir. 2005).
21 Asylum, Withholding of Removal, and CAT Relief
22 The agency reasonably found that, although Jushi had
23 suffered persecution in Albania on account of his membership
2
1 in the Democratic Party (“DP”), the Government had rebutted
2 the resulting presumption of a well-founded fear of future
3 persecution. The Government may rebut the presumption of a
4 well-founded fear of future persecution arising from past
5 persecution by showing a fundamental change in conditions in
6 the country in which the asylum applicant suffered past
7 persecution such that the applicant’s fear of persecution is
8 no longer well founded. 8 C.F.R. § 1208.13(b)(1)(i)(A); see
9 also Lecaj v. Holder, 616 F.3d 111, 115 (2d Cir. 2010). The
10 presumption may be rebutted if, in the applicant’s country,
11 the offending government has been overthrown and no longer
12 wields influence, the new leadership does not “harbor the
13 same animosities as the old,” or human rights practices have
14 improved. In re N-M-A, 22 I & N Dec. 312, 320-21 (B.I.A.
15 1998). A perfunctory finding of changed conditions is
16 sufficient “where (as [in Albania]) changed conditions
17 evidently prevail in a country that is the subject of an
18 appreciable proportion of asylum claims (and, as a result,
19 we can safely assume that IJs have developed considerable
20 expertise related to that country’s current conditions).”
21 Hoxhallari v. Gonzales,
468 F.3d 179, 187 (2d Cir. 2006).
22 The agency did not err in concluding that, at the time
23 of Jushi’s 2010 hearing, conditions in Albania had
3
1 fundamentally changed since he last suffered harm in 2001
2 such that he no longer had a well-founded fear of
3 persecution.1 See id. at 185-88 & n.4. The IJ acknowledged
4 that the U.S. State Department’s Country Reports on Human
5 Rights Practices issued between 1998 and 2001 indicated that
6 the Albanian government, led by the Socialist Party (“SP”),
7 conducted politically motivated arrests and perpetrated
8 numerous acts of violence against DP members during the
9 period Jushi suffered harm. The IJ reasonably found that,
10 in contrast, the 2009 and 2010 Country Reports did not
11 reflect the continuation of that violence, and, in fact,
12 stated that there were no reports of politically motivated
13 killings, disappearances, or prisoners during the reporting
14 years. Furthermore, Jushi admitted that the 2005 elections
15 “were calm” and that the DP had won elections in both 2005
16 and 2009.
17 Contrary to Jushi’s argument, the IJ did not err in
18 relying on the 2009 and 2010 Country Reports rather than the
19 affidavit of Dr. Bernd Fischer, an expert on Albania,
20 particularly given that the affidavit discussed conditions
1 Although Jushi’s application asserted that he was arrested
in 2002 and subjected to a “rough interrogation,” he did not
testify as to that arrest or interrogation and thus, as the
IJ did, we treat his 2001 arrest as the last incident of
harm suffered in Albania.
4
1 through the beginning of 2008 only and thus was not as
2 current as the Country Reports. See Xiao Ji Chen v. U.S.
3 Dep’t of State, 471 F.3d 315, 341-42 (2d Cir. 2006).
4 Furthermore, at Jushi’s 2010 merits hearing, Dr. Fischer
5 admitted that the DP’s assumption of power in 2005 had
6 “mitigate[d] the circumstances to a certain extent,” and
7 failed to provide any specific examples to support his
8 conclusory assertion of continued political violence.
9 Accordingly, the agency did not err in finding a fundamental
10 change in conditions in Albania such that Jushi no longer
11 had a well-founded fear of persecution. See Jian Hui Shao
12 v. Mukasey,
546 F.3d 138, 171-72 (2d Cir. 2008) (noting that
13 the Court does not “attempt to resolve conflicts in record
14 evidence, a task largely within the discretion of the
15 agency”).
16 Jushi’s argument that there is a pattern or practice of
17 persecution against DP members in Albania fails for two
18 reasons. First, he did not argue a pattern or practice of
19 persecution before the agency. See Lin Zhong v. U.S. Dep’t
20 of Justice,
480 F.3d 104, 122 (2d Cir. 2006). Second, the
21 agency’s conclusion that there has been a fundamental change
22 in conditions such that DP supporters are not regularly
23 targeted for political reasons necessarily precludes a
5
1 finding of systemic persecution of DP supporters. See 8
2 C.F.R. § 1208.13(b)(1)(i)(A). Because the agency reasonably
3 concluded that Jushi did not have a well-founded fear of
4 persecution on account of his DP membership, it did not err
5 in denying asylum, withholding of removal, and CAT relief
6 because all three claims were based on the same factual
7 predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d
8 Cir. 2006).2
9 Motion to Remand
10 “A motion to remand that relies on newly available
11 evidence is held to the substantive requirements of a motion
12 to reopen.” Li Yong
Cao, 421 F.3d at 156. A movant seeking
13 a remand to submit new evidence must “present material,
14 previously unavailable evidence and that evidence, if
15 credited, [must] establish the [movant’s] prima facie
16 eligibility for asylum.”
Id. at 158. The BIA did not err
17 in concluding that Jushi failed to establish his prima facie
18 eligibility for asylum and related relief, i.e., a realistic
2
The BIA erred in finding CAT relief waived. The IJ denied
CAT relief based on Jushi’s failure to satisfy the burden for
asylum and thus his challenge to the IJ’s denial of asylum
necessarily included a challenge to the denial of CAT relief.
Nevertheless, it would be futile to remand to correct the
BIA’s error because the agency’s findings as to asylum were
dispositive of the CAT claim. See Xiao Ji Chen, 471 F.3d at
339.
6
1 chance of obtaining that relief. See Jian Hui Shao, 546
2 F.3d at 168.
3 The BIA acknowledged that Jushi’s new evidence
4 demonstrated that the SP won the 2013 elections in Albania,
5 that the relationship between the SP and DP remained tense,
6 that police had arrested a DP member, and that there were
7 incidents of violence surrounding the elections.
8 Nevertheless, the BIA reasonably determined that this
9 evidence did not establish Jushi’s prima facie eligibility
10 for asylum because it did not describe police harassment,
11 arrests, and murders of DP members such as existed at the
12 time police targeted Jushi from 1998 to 2001. In fact,
13 Jushi’s evidence described the 2013 elections as “generally
14 peaceful” and “calm,” aside from a shootout, in which a SP
15 member was killed and a DP candidate injured. Moreover, the
16 one reported arrest of a DP member occurred after that
17 individual’s involvement in a physical altercation.
18 Furthermore, contrary to Jushi’s contention, his wife’s
19 letter did not demonstrate that the police continued to
20 threaten Jushi. She stated that unknown individuals had
21 threatened her on account of Jushi’s political activities,
22 but failed to provide any dates or details regarding those
23 threats. See
id. at 172 (finding no error in the BIA’s
7
1 conclusion that it could not infer a possibility of
2 persecution from reports of persecution that lack details).
3 Accordingly, because Jushi’s evidence did not show that
4 the police had resumed targeting DP members for arrest,
5 harassment, and murder, the BIA reasonably concluded that
6 Jushi had not established his prima facie eligibility for
7 relief and thus did not abuse its discretion in denying his
8 motion to remand. See Li Yong Cao, 421 F.3d at 156.
9 For the foregoing reasons, the petition for review is
10 DENIED.
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
13
14
15
8
