09-3038-ag
Vushaj v. Attorney General
BIA
Abrams, IJ
A094 927 369
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 September, two thousand ten.
5
6 PRESENT:
7 REENA RAGGI,
8 RICHARD C. WESLEY,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _________________________________
12 ______________________________________
13
14 VILSON VUSHAJ,
15 Petitioner,
16
17 v. 09-3038-ag
18
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONER: Sam Gjoni, New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Aviva L. Poczter, Senior
28 Litigation Counsel; Nehal H. Kamani,
29 Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
1 Washington, D.C.
2 UPON DUE CONSIDERATION of this petition for review of a
3 Board of Immigration Appeals (“BIA”) decision, it is hereby
4 ORDERED, ADJUDGED, AND DECREED that the petition for review
5 is DENIED.
6 Vilson Vushaj-Cekoj, a native and citizen of Albania,
7 seeks review of a July 7, 2009, order of the BIA affirming
8 the November 15, 2007, decision of Immigration Judge (“IJ”)
9 Steven R. Abrams denying his application for asylum,
10 withholding of removal, and relief under the Convention
11 Against Torture (“CAT”). In re Vilson Vushaj-Cekoj, No.
12 A094 927 369 (B.I.A. July 7, 2009), aff’g No. A094 927 369
13 (Immig. Ct. N.Y. City Nov. 15, 2007). We assume the
14 parties’ familiarity with the underlying facts and
15 procedural history in this case.
16 Under the circumstances of this case, we review the
17 IJ’s decision as modified by the BIA decision. See Xue Hong
18 Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.
19 2005). We review the agency’s factual findings under the
20 substantial evidence standard, treating them as “conclusive
21 unless any reasonable adjudicator would be compelled to
22 conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see
23 also Diallo v. INS, 232 F.3d 279, 287 (2d Cir. 2000) (“We
2
1 reverse [the BIA] only if no reasonable fact-finder could
2 have failed to find the past persecution or fear of future
3 persecution necessary to sustain the petitioner’s burden.”).
4 We need not decide whether the agency erred in finding
5 that petitioner failed to establish past persecution based
6 on his allegations of a brief detention and relatively minor
7 beating for his support of the Democratic Party before the
8 2005 election, along with anonymous letters directing him to
9 leave the party. Cf. Beskovic v. Gonzales, 467 F.3d 223,
10 226 (2d Cir. 2009) ("The BIA must . . . be keenly sensitive
11 to the fact that a ‘minor beating' or, for that matter, any
12 physical degradation designed to cause pain, humiliation, or
13 other suffering may rise to the level of persecution if it
14 occurred in the context of an arrest or detention on the
15 basis of a protected ground."); but see Ivanishvili v. U.S.
16 Dep’t of Justice, 433 F.3d 332, 342 (2d Cir. 2006)
17 (“[P]ersecution does not encompass mere harassment.”); Gui
18 Ci Pan v. U.S. Att’y Gen., 449 F.3d 408, 412 (2d Cir. 2006)
19 (noting that “[t]his Court, and others, previously have
20 rejected . . . claims involving ‘unfulfilled’ threats” as
21 constituting past persecution). Given the changed country
22 conditions alluded to by the agency – that the Democratic
3
1 Party, with which petitioner was affiliated, won the
2 election in 2005 and has been in power ever since – the
3 agency reasonably determined that petitioner failed to
4 establish a well-founded fear of future persecution. See
5 Hoxhallari v. Gonzales, 468 F.3d 179, 187 (2d Cir. 2006)
6 (noting that while petitioner “may have a subjective fear of
7 future persecution based on his Democratic Party affiliation
8 . . . the IJ’s perfunctory finding of changed conditions in
9 Albania is adequate.”); see also Latifi v. Gonzales, 430
10 F.3d 103, 106 n.1 (2d Cir. 2005) (“[W]e take judicial notice
11 of the fact that the Democratic Party returned to power in
12 Albania through general elections in July [2005].”).
13 Petitioner’s claim for asylum accordingly fails, and
14 Petitioner does not challenge the agency’s denial of his
15 application for withholding of removal or CAT relief.
16 For the foregoing reasons, the petition for review is
17 DENIED. As we have completed our review, any stay of
18 removal that the Court previously granted in this petition
19 is VACATED, and any pending motion for a stay of removal in
20 this petition is DISMISSED as moot.
21
22
4
1 FOR THE COURT:
2 Catherine O’Hagan Wolfe, Clerk
3
4 ____
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