08-1458-ag
Djokic v. Holder
BIA
Bain, IJ
A079 319 095
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 29 th day of March, two thousand ten.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 GUIDO CALABRESI,
10 DEBRA ANN LIVINGSTON,
11 Circuit Judges.
12 _______________________________________
13
14 JASMINA DJOKIC,
15 Petitioner,
16
17 v. 08-1458-ag
18 NAC
19 ERIC H. HOLDER, JR., 1 UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 ____________________________________________________________
23
24
25
1
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric. H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
1 FOR PETITIONER: Robert M. Birach, Detroit, Michigan.
2
3 FOR RESPONDENT: Tony West, Assistant Attorney
4 General; James E. Grimes, Senior
5 Litigation Counsel; Janice K.
6 Redfern, Senior Litigation Counsel,
7 Office of Immigration Litigation,
8 United States Department of Justice,
9 Washington, D.C.
10
11 UPON DUE CONSIDERATION of this petition for review of a
12 Board of Immigration Appeals (“BIA”) decision, it is hereby
13 ORDERED, ADJUDGED, AND DECREED, that the petition for review
14 is DENIED.
15 Jasmina Djokic, a native and citizen of the former
16 Yugoslavia, seeks review of a February 27, 2008 order of the
17 BIA affirming the November 28, 2006 decision of Immigration
18 Judge (“IJ”) Terry Bain, which denied her application for
19 asylum, withholding of removal, and relief under the
20 Convention Against Torture (“CAT”). In re Jasmina Djokic,
21 No. A079 319 095 (B.I.A. Feb. 27, 2008), aff’g No. A079 319
22 095 (Immig. Ct. N.Y. City Nov. 28, 2006). We assume the
23 parties’ familiarity with the underlying facts and
24 procedural history in this case.
25 Under the circumstances of this case, we review the
26 decision of the IJ as supplemented by the BIA. See Yan Chen
27 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
2
1 applicable standards of review are well-established.
2 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep't of
3 Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007).
4 The agency determined that, although she experienced
5 past persecution, conditions in Montenegro have changed to
6 the extent that Djokic no longer has a well-founded fear of
7 persecution. 8 C.F.R. § 1208.13(b)(1) . The agency is
8 required to provide a reasoned basis for such a finding.
9 See Niang v. Mukasey, 511 F.3d 138, 148-49 (2d Cir. 2007).
10 Here, the IJ examined the record and reasonably determined
11 that Djokic’s fear of persecution was not objectively well-
12 founded, for the following reasons. Since Montenegro
13 separated from Serbia, conditions for ethnic Albanians had
14 improved. Although Djokic may be subject to harassment and
15 discrimination, any adverse treatment would not rise to the
16 level of persecution. Given the IJ’s review of the record,
17 substantial evidence supports her finding that any
18 presumption of a well-founded fear of persecution was
19 successfully rebutted. See 8 U.S.C. § 1252(b)(4)(B) ;
20 Hoxhallari v. Gonzales, 468 F.3d 179, 184 (2d Cir. 2006).
21 But see Alibasic v. Mukasey, 547 F.3d 78, 81-82, 84-87 (2d
22 Cir. 2008) (finding that the BIA erred in reversing the IJ’s
23 grant of asylum based on the same evidence).
3
1 Even absent a well-founded fear of future persecution,
2 the agency may grant asylum based on the severity of past
3 persecution. 8 C.F.R. § 1208.13(b)(1)(iii)(A) (providing
4 that to be eligible for humanitarian asylum, a petitioner
5 must demonstrate “compelling reasons for being unwilling or
6 unable to return . . . [that] aris[e] out of the severity of
7 the past persecution”). There is no abuse of discretion in
8 the BIA’s conclusion, based on the facts found by the IJ,
9 that Djokic did not endure the type of atrocious persecution
10 for which humanitarian asylum is reserved. 2 See Mirzoyan v.
11 Gonzales, 457 F.3d 217, 220 (2d Cir. 2006) (stating that
12 humanitarian asylum is reserved for “certain rare cases”);
13 Jalloh v. Gonzales, 498 F.3d 148, 151 (2d Cir. 2007) (per
14 curiam) ; Matter of Chen, 20 I. & N. Dec. 16, 19 (B.I.A.
15 1989).
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
2
Despite Djokic’s argument to the contrary, we do
not find that the BIA acted ultra vires in finding her
ineligible for humanitarian asylum. See 8 C.F.R.
§ 1003.1(d)(3)(ii) (providing that the BIA may review de
novo “questions of law, discretion, and judgment and all
other issues in appeals from decisions of immigration
judges”).
4
1 is VACATED, and any pending motion for a stay of removal in
2 this petition is DISMISSED as moot. Any pending request for
3 oral argument in this petition is DENIED in accordance with
4 Federal Rule of Appellate Procedure 34(a)(2), and Second
5 Circuit Local Rule 34.1(b).
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
8
9
10
5