09-1132-ag
Simoni v. Holder
BIA
Abrams, IJ
A077 353 685
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 12 th day of March, two thousand ten.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 JOSEPH M. McLAUGHLIN,
10 GERARD E. LYNCH,
11 Circuit Judges.
12 _______________________________________
13
14 GENTIAN SIMONI,
15 Petitioner,
16
17 v. 09-1132-ag
18 NAC
19 ERIC H. HOLDER, Jr., U.S. ATTORNEY
20 GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Sokol Braha, New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General, Blair T. O’Connor,
28 Assistant Director, Juria L. Jones,
29 Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED, that the petition for review
4 is DENIED.
5 Gentian Simoni, a native and citizen of Albania, seeks
6 review of a March 4, 2009, order of the BIA, affirming the
7 January 12, 2007, decision of Immigration Judge (“IJ”)
8 Steven R. Abrams, which denied his application for asylum,
9 withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Gentian Simoni, No. A077 353
11 685 (B.I.A. Mar. 4, 2009), aff’g No. A077 353 685 (Immig.
12 Ct. N.Y. City Jan. 12, 2007). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 Under the circumstances of this case, we review both
16 the BIA’s and IJ’s opinions. See Yan Chen v. Gonzales, 417
17 F.3d 268, 271 (2d Cir. 2005). The applicable standards of
18 review are well-established. See 8 U.S.C. § 1252(b)(4)(B);
19 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
20 Although the IJ found that Simoni had suffered past
21 persecution as a result of his association with the
22 Democratic Party, he reasonably concluded that conditions in
2
1 Albania have changed sufficiently such that Simoni’s fear of
2 persecution is no longer objectively well-founded. See
3 8 C.F.R. § 1208.13(b)(1)(i)(A) ; Hoxhallari v. Gonzales, 468
4 F.3d 179, 184 (2d Cir. 2006) . As the BIA explained, even
5 though the Democratic Party was in power when Simoni was
6 persecuted in 1996, the Democratic Party lost control in
7 1997 after a period of unrest, and returned to power after
8 elections in 2005. The finding of substantially changed
9 country conditions since 1996 is thus well-supported in the
10 record. See Hoxhallari, 468 F.3d at 187. Furthermore, we
11 find no support in the record for Simoni’s argument that the
12 IJ failed to consider all of the country conditions evidence
13 in the record. S ee Xiao Ji Chen v. U.S. Dep’t of Justice,
14 471 F.3d 315, 338 n.17 (2d Cir. 2006).
15 Simoni further argues that the agency erred in failing
16 to grant him humanitarian asylum based on the severity of
17 the 1996 persecution. On appeal to the BIA, however, Simoni
18 argued that the agency should grant him humanitarian relief
19 based on incidents that occurred after 1996. The BIA did
20 not reach this argument because it affirmed the IJ’s
21 rejection of the post-1996 allegations on credibility
22 grounds. Thus, to the extent that Simoni now asserts that
3
1 he is eligible for humanitarian asylum based on his May 1996
2 persecution, we decline to review that unexhausted argument.
3 See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 123-24
4 (2d Cir. 2007).
5 Before this Court, Simoni again argues that the agency
6 should have granted him humanitarian asylum based on the
7 later incidents of persecution he alleged. Yet, even
8 assuming his credibility, it is plain that Simoni did not
9 suffer the type of “atrocious” persecution for which
10 humanitarian asylum is reserved. See Matter of Chen, 20 I.
11 & N. Dec. 16, 19-20 (BIA 1989); see also Jalloh v. Gonzales,
12 498 F.3d 148, 151 (2d Cir. 2007) . Indeed, Simoni has never
13 argued that he suffers the long-lasting physical or mental
14 effects that would support humanitarian asylum. See Jalloh,
15 498 F.3d at 151.
16 Accordingly, the agency properly denied Simoni’s
17 application for asylum.
18 Because Simoni failed to challenge the IJ’s denial of
19 his applications for withholding of removal and CAT relief
20 either before the BIA or this Court, we deem any such
21 arguments waived. See Yueqing Zhang v. Gonzales, 426 F.3d
22 540, 541 n.1, 545 n.7 (2d Cir. 2005).
4
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2), and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
11
12
13
14
5