12-4631 (L)
Boraj v. Holder
BIA
Gordon-Uruakpa, IJ
A087 560 858
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
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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
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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 18th day of March, two thousand fourteen.
PRESENT:
JOSÉ A. CABRANES,
GERARD E. LYNCH,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
QAMIL BORAJ,
Petitioner,
v. 12-4631 (Lead);
13-728 (Con)
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Michael P. DiRaimondo, DiRaimondo &
Masi, LLP, Melville, NY.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; Leslie McKay, Assistant
Director; Sara J. Bergene, Trial
Attorney, Office of Immigration
Litigation, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of these petitions for review of
decisions of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED that the petition for
review in Dkt. No. 12-4631 (L) is GRANTED in part and DENIED
in part and the petition for review in Dkt. No. 13-728 (Con)
is DISMISSED as moot.
Petitioner Qamil Boraj, a native and citizen of
Albania, seeks review of a November 14, 2012, order of the
BIA, denying withholding of removal and reversing the April
7, 2011, decision of an Immigration Judge (“IJ”), which
granted asylum and relief under the Convention Against
Torture (“CAT”), In re Qamil Boraj, No. A087 560 858 (B.I.A.
Nov. 14, 2012), rev’g No. A087 560 858 (Immig. Ct. N.Y. City
Apr. 7, 2011), and a February 15, 2013, decision of the BIA
denying his timely motion to reopen, In re Qamil Boraj, No.
A087 560 858 (B.I.A. Feb. 15, 2013). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
I. Petition for Review in Dkt. No. 12-4631 (L)
Under the circumstances of this case, we review only
the decision of the BIA. 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); Yanqin
Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
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A. Economic Persecution
The BIA correctly concluded that Boraj had not
established that his termination from the police department
constituted a severe economic disadvantage amounting to
economic persecution. In Guan Shan Liao v. U.S. Dep’t of
Justice, 293 F.3d 61(2d Cir. 2002), we noted that “an asylum
applicant must offer some proof that he suffered a
‘deliberate imposition of substantial economic
disadvantage.’” Id. at 70 (quoting Chan v. INS, 195 F. 3d
198 (4th Cir. 1998)). There, Guan failed to meet that
standard because he offered “[n]o testimony or other
evidence . . . regarding [his] income in China, his net
worth at the time of the fines, or any other facts that
would make it possible[] to evaluate his personal financial
circumstances in relation to the fines.” Id. Here, Boraj
failed to present any testimony or evidence bearing on his
personal financial situation or his subsequent private
sector employment from which to assess the economic impact
of his termination. His evidentiary proffer was therefore
insufficient to sustain the IJ’s finding of severe economic
harm. See Guan Shan Liao, 293 F.3d at 70 (“Absent this sort
of proof, we cannot assess whether or not the fines
constituted a substantial disadvantage to him.”).
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B. Asylum & Withholding of Removal Due to Fear of Gangs
Because the IJ erroneously granted Boraj asylum based
on his claim of economic persecution, the IJ did not address
Boraj’s alternative claim that he was eligible for asylum or
withholding of removal on the basis of his fear of
persecution by gangs. Rather than remand the matter for
further fact finding by the IJ, the BIA denied relief based
on its own determinations that Albanian authorities were not
unwilling or unable to control the gang members Boraj
feared, and that Boraj was targeted by the gangs as criminal
retaliation for his actions against them as a police
officer, rather than on a account of his membership in a
particular social group. Such independent fact-finding by
the BIA violates 8 C.F.R. § 1003.1(d)(3)(iv), which provides
that “[e]xcept for taking administrative notice of commonly
known facts such as current events or the contents of
official documents, the Board will not engage in factfinding
in the course of deciding appeals.” See also Xian Tuan Ye v.
Dep’t of Homeland Sec., 446 F.3d 289, 296 (2d Cir. 2006)
(“[T]he BIA may only review the IJ’s factual findings to
determine whether they are clearly erroneous, and may not
engage in fact-finding, other than taking administrative
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notice of commonly known facts”); 8 C.F.R. § 1003.1(d)(3)(i)
(“The Board will not engage in de novo review of findings of
fact determined by an immigration judge.”).
The BIA’s fact-finding here is particularly troubling
because it ignored several of the IJ’s conclusions including
(1) that Boraj’s alleged persecutor, Adrian Malasi,
successfully bribed a prosecutor and secured release even
though he was arrested for threatening Boraj’s life at
gunpoint, (2) that four of the six other police officers in
his unit had been murdered in Albania, and (3) that Boraj
credibly testified that gang leader Lester Aliko had also
sought to recruit Boraj into Aliko’s criminal organization.
Those facts might support a conclusion that Malasi and Aliko
targeted Boraj for his perceived membership in a political
or social group, and the BIA erred by not allowing the IJ to
conduct this contextual analysis in the first instance.
In sum, although we express no view regarding the
ultimate merits of Boraj’s claim, we vacate the BIA’s denial
of asylum and withholding of removal on the basis of Boraj’s
fear of persecution by gangs with instruction to remand to
the IJ for consideration of this alternative ground for
asylum. See 8 C.F.R. § 1003.1(d)(3)(i), (iv); Xian Tuan
Ye, 446 F.3d at 296.
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Because substantial time has elapsed since the November
2010 merits hearing, the parties should be afforded the
opportunity to supplement the record with recent evidence of
country conditions on remand. See Secaida-Rosales v.
I.N.S., 331 F.3d 297, 312-13 (2d Cir. 2003) (holding that
because a significant amount of time had passed since the
IJ’s initial ruling, the record should be supplemented with
evidence of current country conditions on remand), overruled
in part on other grounds by Xiu Xia Lin v. Mukasey, 534 F.3d
162 (2d Cir. 2008).
C. CAT Relief
The BIA concluded that the IJ erred in granting CAT
relief because Boraj had not established that Albanian
authorities would acquiesce in his prospective torture by
gang members. See Khouzam v. Ashcroft, 361 F.3d 161, 168
(2d Cir. 2004). As with the BIA’s treatment of the record
supporting Boraj’s claim for asylum, this finding was
predicated on an improper de novo review of the IJ’s factual
determinations. See 8 C.F.R. § 1003.1(d)(3)(i), (iv); Xian
Tuan Ye, 446 F.3d at 296. The IJ concluded that Boraj had
established governmental acquiescence because Malasi
successfully bribed the prosecutor’s office to release him
after he was arrested for threatening Boraj’s life at
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gunpoint and the State Department’s Country Reports
indicated that “police corruption and impunity persisted in
Albania.” The BIA substituted its own view of the country
conditions evidence for that of the IJ based solely on an
abstract review of the country conditions evidence without
regard to Boraj’s credible testimony concerning Malasi’s
bribes to the prosecutor’s office and the murder of four of
the six other police officers in his unit. As we noted in
Delgado v. Mukasey, 508 F.3d 702(2d Cir. 2007), the BIA
commits error when it “deal[s] with [a claim of] fear of
future persecution entirely in the abstract.” Id. at 706.
II. Petition for Review in Dkt. No. 13-728 (Con)
Because we have already concluded that Boraj should be
permitted to supplement the record with current evidence of
country conditions as a consequence of the partial grant of
his petition in No. 12-4631, his challenge to the BIA’s
subsequent denial of reopening is moot. See Arizonans for
Official English v. Arizona, 520 U.S. 43, 67 (1997).
For the foregoing reasons, the petition for review in
Dkt. No. 12-4631 (L) is DENIED in part, as it relates to the
BIA’s economic persecution finding, and GRANTED in part, as
it relates to the BIA’s denial of asylum, withholding of
removal, and CAT relief due to Boraj’s fear of persecution
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by gangs. The petition for review in Dkt. No. 13-728 (Con)
is DISMISSED as moot. Boraj’s pending request for oral
argument in these petitions 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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