Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
9-14-2005
Sapunzhiu v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3525
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 04-3525
FISNIK SAPUNZHIU,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
Respondent
Petition for Review of the Order
of the Board of Immigration Appeals
(A95-471-607)
Submitted Under Third Circuit LAR 34.1(a)
September 12, 2005
Before: SLOVITER, BARRY and SMITH, Circuit Judges
(Filed September 14, 2005)
OPINION
SLOVITER, Circuit Judge.
Fisnik Sapunxhiu,1 a native and citizen of the Federal Republic of Yugoslavia,
seeks review of a final order issued by the Board of Immigration Appeals (“BIA”) on
August 2, 2004, reversing the Immigration Judge’s (“IJ’s”) grant of asylum. This court
has jurisdiction pursuant to 8 U.S.C. § 1252(a). Although we find the events to which
Sapunxhiu testified to have been truly unconscionable, for the reasons stated below we
will deny the petition for review.
I.
Because the parties are familiar with the factual and procedural background of this
case, we refer only to those facts that are pertinent to our disposition. Fisnik Sapunxhiu
arrived in the United States on August 7, 2001, on a non-immigrant visa. In June 2002,
he applied for asylum and withholding of removal. He was interviewed by the INS2 and
referred to the Immigration Court. On September 23, 2002, the INS issued a Notice to
Appear (“NTA”) charging him as removable under § 237(a)(1)(B) of the Immigration
1
We will refer to Petitioner as Sapunxhiu, as that is the
name used by the IJ, the BIA, and all the immigration documents.
The cover of Petitioner’s brief, as well as the Government’s brief,
spell the name with a ‘z’ instead of an ‘x.’
2
Effective March 2003, the Immigration and Naturalization
Service (“INS”) ceased to exist as an independent agency within
the Department of Justice, and its functions were transferred to the
Bureau of Citizenship and Immigration Services within the
Department of Homeland Security. The BIA remains within the
Department of Justice. Homeland Security Act of 2002, 6 U.S.C.
§§ 271, 291.
2
and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(1)(B), for overstaying his visa.
Sapunxhiu appeared before the IJ on October 8, 2002, admitted the charges in the
NTA and conceded removability. He also renewed his request for asylum and
withholding of removal, and asked for voluntary departure in the alternative.
During the subsequent merits hearing, Sapunxhiu testified about the incident that
gave rise to his application. On the morning of May 2, 1999, Serbian soldiers broke into
his home and demanded money. The soldiers tried to force Sapunxhiu to admit that he
was a member of the Kosovo Liberation Army (“KLA”), even though he had never been
a member of the KLA and was only fifteen years old at the time. Sapunxhiu and his
parents were beaten, and his sister forced into another room where she was raped. His
family could only wait helplessly, held at gunpoint by other soldiers. When the soldiers
returned with Sapunxhiu’s sister, they gave the family ten minutes to leave Kosovo.
Sapunxhiu’s mother gathered what she could, and the family boarded a bus that
took them to Albania. After living with a host family for about two months, they
returned to Kosovo. Sapunxhiu testified that over the next two years he experienced
depression so severe that he had trouble forming relationships and distanced himself
from his family. Though he tried to seek mental help, his father refused to send him to a
doctor for fear of the stigma.
In addition to his own testimony, Sapunxhiu offered corroborating evidence
including testimony and a psychiatric evaluation by Dr. Damon Delston, an expert on
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Posttraumatic Stress Disorder (“PTSD”), a State Department Country Report on Human
Rights Practices, and an Amnesty International Report. Dr. Delston interviewed
Sapunxhiu and diagnosed him with PTSD-Chronic, concluding that placing Sapunxhiu
“in a milieu that reminds him of past trauma” would exacerbate symptoms that are
currently in abeyance. App. at 192. Dr. Delston also testified that Sapunxhiu was in
denial and could be treated with psychotherapy.
After the hearing, the IJ issued an oral opinion granting Sapunxhiu withholding of
removal and asylum pending the completion of security checks. Once the security checks
were completed, the IJ formally granted relief.
In her opinion, the IJ found that Sapunxhiu met his burden of proof to show past
persecution. The IJ also found that the INS demonstrated, by a preponderance of the
evidence, changed country conditions in Kosovo which rebutted the presumption arising
from past persecution and found that Sapunxhiu no longer had a well-founded fear of
persecution. However, the IJ also found that Sapunxhiu had demonstrated compelling
reasons for being unwilling or unable to return to Yugoslavia as a result of the severity of
his past persecution, which caused his PT-SD. The IJ granted the relief sought.
The INS appealed to the BIA, which reversed the IJ’s decision in a per curiam
order on August 2, 2004, and granted Sapunxhiu thirty days voluntary departure. This
appeal followed.
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II.
Where the BIA conducts an independent analysis of the record, the Court reviews
only the BIA’s decision. Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir. 2003). We
review the BIA’s findings of fact for substantial evidence and uphold unless a
“reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. §
1252(b)(4)(B) (emphasis added); Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003) (en
banc). We review the BIA’s discretionary denial of asylum under 8 U.S.C. § 1158(a) for
abuse of discretion, and will uphold unless it is manifestly contrary to the law. 8 U.S.C. §
1252(b)(4)(D).
III.
The BIA agreed with the IJ’s finding that Sapunxhiu had established past
persecution, and that the INS had successfully rebutted the resulting presumption of a
well-founded fear of future persecution. However, the BIA, in an opinion by a single
judge, reversed after finding that the IJ erred in granting relief based on the so-called
humanitarian exception. See 8 C.F.R. § 1208.13(b)(3)(iii)(A) (2004). The BIA
concluded that Sapunxhiu failed to meet his burden of proof to show that persecution rose
to the level of the compelling reasons standard.
Sapunxhiu first argues that the BIA strayed from its case law in denying relief by
requiring that the petitioner suffered a permanent disability from his past persecution.
However, the BIA never made an explicit finding that the denial of relief was based on
5
the lack of a permanent disability. Rather, the decision was founded on prior BIA
decisions which required a level of persecution beyond that experienced by Sapunxhiu;
the lack of a permanent disability was not dispositive. The BIA supported its decision in
this case by citation and discussion of its earlier precedent.
Sapunxhiu also argues that the BIA did not provide a rational explanation of why
his past persecution was not severe enough to warrant a grant of humanitarian asylum.
However, the BIA not only explained why Sapunxhiu failed to show compelling reasons,
but it cited cases in support of its decision. The decision briefly recounted the facts of the
instant case and concluded that the persecution did not meet the standard of Matter of
Chen, 20 I. & N. Dec. 16 (BIA 1989), where the applicant’s suffering began at the age of
eight and continued into adulthood, or Matter of B-, 21 I. & N. Dec. 66 (BIA 1995),
where the applicant was detained for thirteen months and endured four months of
involuntary military service, in addition to physical torture and psychological abuse. The
BIA’s decision that Sapunxhiu’s suffering did not rise to the level of the petitioners in
those cases was not unreasonable. There is nothing in the record that suggests the BIA’s
factual findings were not supported by substantial evidence, or that the BIA abused its
discretion in reversing the IJ’s discretionary grant of asylum.
Finally, Sapunxhiu argues that the BIA failed to follow its own precedent by not
considering the discretionary factors that warrant a favorable adjudication of his claim.
The BIA has determined that such factors are to be considered “in past persecution cases
6
where a well-founded fear of persecution is presumed to exist because country conditions
have not been shown to have changed or in cases where the ‘compelling reasons’
requirement has been satisfied.” Matter of N-M-A, 22 I. & N. Dec. 312, 325 n.7 (BIA
1998). Here, there was a conceded change in country conditions. In addition, these
factors have no bearing on the determination of whether Sapunxhiu met the compelling
reasons requirement. Thus, Sapunxhiu’s contention that the BIA erroneously failed to
consider discretionary factors is based on a misinterpretation of the BIA’s language.
It follows that although we may have decided this case differently, we are bound to
uphold the BIA’s decision.
IV.
For the above reasons, Sapunxhiu’s petition for review will be denied.
7