12-1627
Spahi v. Holder
BIA
Burr, IJ
A079 316 318
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 Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 17th day of July, two thousand thirteen.
PRESENT:
JON O. NEWMAN,
PIERRE N. LEVAL,
JOSÉ A. CABRANES,
Circuit Judges.
_____________________________________
REZART SPAHI,
Petitioner,
12-1627
v. NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Saul C. Brown, New York, NY.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; Cindy S. Ferrier,
Assistant Director; Michele Y. F.
Sarko, Attorney, Office of
Immigration Litigation, Civil
Division, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner, Rezart Spahi, a native and citizen of
Albania, seeks review of an March 29, 2012, decision of the
BIA affirming the April 17, 2010, decision of Immigration
Judge (“IJ”) Sarah M. Burr denying his application for
asylum. In re Rezart Spahi, No. A079 316 318 (B.I.A. March
29, 2012), aff’g No. A079 316 318 (Immig. Ct. N.Y. City
Apr. 17, 2010). We assume the parties’ familiarity with the
underlying facts and procedural history of the case.
Under the circumstances of this case, we have reviewed
the IJ’s decision as modified and supplemented by the BIA.
See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005);
Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522
(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, we lack jurisdiction to consider Spahi’s unexhausted
argument that he is entitled to humanitarian asylum. See
8 U.S.C. § 1252(d)(1); Karaj v. Gonzales, 462 F.3d 113, 119
(2d Cir. 2006). Additionally, because the BIA assumed that
2
Spahi established that he suffered past persecution on
account of a protected ground, we make the same assumption
and need not reach Spahi’s challenges to the IJ’s past
persecution findings. See Xue Hong Yang, 426 F.3d at 522.
Spahi contends that he established a well-founded fear
of persecution based on evidence that members of the
Albanian Socialist Party persecuted him due to his pro-
democracy views. Although, because the BIA assumed past
persecution, Spahi was presumed to have a well-founded fear
of persecution, the agency reasonably found that the
government rebutted that presumption by establishing that
the circumstances in Albania have fundamentally changed.
See 8 C.F.R. § 1208.13(b)(1). According to various articles
and State Department Human Rights reports on which the
agency relied, the Albanian government has been moving
towards democratization, fostering electoral reforms, and
undergoing peaceful transitions between governments. The
reports also note that the Democratic Party, which Spahi
supports, gained control of the Albanian Parliament in 2005
and 2009 and established coalition governments with other
major political parties.
Contrary to Spahi’s assertions, the Socialist Party’s
continued control of local governments and sporadic pre-
3
election violence that led to the deaths of a few prominent
government officials do not negate this fundamental change
in interparty relations. Moreover, his fear that a plot
devised against him over a decade ago will be carried out
upon his return to Albania is speculative. Absent
contradictory evidence that the Socialist Party targets
members of the majority Democratic Party, the IJ reasonably
relied on these reports to conclude that Spahi no longer has
a well-founded fear of persecution. See 8 U.S.C.
§ 1252(b)(4)(B) (providing that an IJ’s factual findings
will be upheld unless a reasonable adjudicator would be
compelled to conclude to the contrary); Hoxhallari v.
Gonzales, 468 F.3d 179, 185-86 (2d Cir. 2006) (finding
material change in Albania when State Department reports
identify Albania as moving away from Communism and towards
democratization).
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
4
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
5