09-2307-ag
Gashi v. Holder
BIA
Bain, IJ
A098 283 805
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 29 th day of June, two thousand ten.
PRESENT:
JON O. NEWMAN,
ROBERT A. KATZMANN,
PETER W. HALL,
Circuit Judges.
____________________________________
FATMIR GASHI,
Petitioner,
v. 09-2307-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL
Respondent.
___________________________________
FOR PETITIONER: Glenn H. Bank, New York, New York.
FOR RESPONDENT: Michael F. Hertz, Deputy Assistant Attorney
General, Civil Division; Carl H. McIntyre,
Assistant Director; T. Bo Stanton, Attor-
ney, 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 Fatmir Gashi, a native of Yugoslavia and a
citizen of Kosovo, seeks review of a May 6, 2009, order of the
BIA reversing the July 13, 2006, decision of Immigration Judge
(“IJ”) Terry Bain granting Gashi’s application for asylum. In
re Fatmir Gashi, No. A098 283 805 (B.I.A. May 6, 2009), rev’g
No. A098 283 805 (Immig. Ct. N.Y. City July 13, 2006). We
assume the parties’ familiarity with the underlying facts and
procedural history in this case.
Under the circumstances of this case, we review only the
decision of the BIA. 1 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); see also
Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d
Cir. 2007); Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d
Cir. 2008).
1
We note, however, that the IJ’s decision contains no discussion of
the Government’s substantial evidence offered to rebut the presumption
of future persecution. The IJ stated only, “The Government has not
rebutted this presumption.”
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In its decision, the BIA found that even assuming Gashi
had suffered past persecution, any presumption of a likelihood
of future persecution had been rebutted. When an applicant
for asylum has been found to have suffered past persecution,
the presumption of a well-founded fear of future persecution
may be rebutted if the BIA finds that there has been a
fundamental change in circumstances such that the applicant’s
life or freedom would no longer be threatened in the country
of removal on account of one of the five statutory grounds.
8 C.F.R. §§ 1208.16(b)(1)(i)(A), 1208.13(b)(1)(i)(A). The BIA
has elaborated that the presumption may be rebutted if, in the
applicant’s country, the offending government has been
overthrown and no longer wields influence, the new leadership
does not “harbor the same animosities as the old,” or human
rights practices have improved. See In re N-M-A, 22 I & N Dec.
312, 320-21 (BIA 1998); In re O-Z-, 22 I & N Dec. 23, 26-27
(BIA 1998). We find no error in the agency’s conclusion that
the government successfully rebutted any presumption of
persecution because the background materials and testimony
showed that: (1) U.N. and Kosovar forces are “able and
willing” to protect the legal rights of Albanians; and (2)
Gashi’s family remained unharmed in Kosovo. See Alibasic v.
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Mukasey, 547 F.3d 78, 86-87 (2d Cir. 2008).
As an initial matter, we find unavailing Gashi’s
assertion that because the BIA agreed with the government’s
position, it necessarily failed to conduct an independent
review of his claims.
Gashi also argues that the BIA’s finding regarding
changed country conditions in Kosovo is erroneous because the
BIA ignored evidence in the record demonstrating that Kosovo
continues to suffer from ethnic tension between Serbs and
Albanians. However, the BIA did not dispute that ethnic
tension continues to plague Kosovo, but noted that most of the
violence is now directed at ethnic Serbs and that Kosovar
authorities have actively pursued police officers for their
roles in the 2004 riots. Moreover, the BIA reasonably found
that Gashi’s claim of a well-founded fear of future
persecution was diminished by the fact that his family members
remained in Kosovo unharmed. See Melgar de Torres v. Reno,
191 F.3d 307, 313 (2d Cir. 1999). In light of these findings,
the BIA reasonably determined that the government met its
burden of proof.
Although Gashi argues that the BIA placed undue weight on
the Department of State country conditions reports, we accord
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deference to the agency’s evaluation of documentary evidence.
See Xiao Ji Chen v. United States Dep’t of Justice, 471 F.3d
315, 324 (2d Cir. 2006). Gashi’s argument that the BIA failed
to consider his testimony and documentary evidence is
similarly unavailing, as the record does not compellingly
suggest that the BIA ignored any material evidence that he
submitted in support of his claim. See Jian Hui Shao v.
Mukasey, 546 F.3d 138, 169 (2d Cir. 2008). To the extent
Gashi argues the BIA failed to conduct the requisite minimal
level of analysis, we find the BIA’s discussion of both
Gashi’s past persecution and the increased efforts on the part
of Kosovar authorities to apprehend those responsible for the
2004 riots sufficient to enable us to conduct our review. See
Alibasic, 547 F.3d at 86-87.
Finally, Gashi’s argument that the BIA violated his due
process rights by taking judicial notice of changed country
conditions in Kosovo is without merit. The BIA did not take
notice of any documents outside the administrative record,
but rather determined that the country conditions evidence
submitted before the IJ did not demonstrate a basis for an
objectively reasonable fear of future persecution. See 8
C.F.R. § 1003.1(d)(3); Alibasic, 547 F.3d at 85. Because the
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BIA’s decision was supported by substantial evidence,
inasmuch as Gashi’s claim for withholding of removal and CAT
relief share the same factual predicate as his claim for
asylum, the agency’s finding is fatal to those claims as
well. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
2006).
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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