08-6007-ag
Alla v. Holder
BIA
Hom, IJ
A077 633 143
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 22 nd day of February, two thousand ten.
PRESENT:
ROBERT D. SACK,
REENA RAGGI,
GERARD E. LYNCH,
Circuit Judges.
______________________________________
ERMIR ALLA, also known as LUC,
Petitioner,
v. 08-6007-ag
NAC
ERIC H. HOLDER, JR., 1
UNITED STATES ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Andrew P. Johnson, New York, New York.
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 the respondent in this case.
FOR RESPONDENT: Tony West, Assistant Attorney General;
Luis E. Perez, Senior Litigation
Counsel; Edward Durant, Trial
Attorney, Office of Immigration
Litigation, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED, that the petition for review
is DENIED.
Ermir Alla, a native and citizen of Albania, seeks review
of a November 10, 2008 order of the BIA affirming the March 2,
2007 decision of Immigration Judge (“IJ”) Sandy K. Hom, which
denied his application for asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”). In re
Ermir Alla, No. A077 633 143 (BIA Nov. 10, 2008), aff’g No.
A077 633 143 (Immig. Ct. N.Y. City Mar. 2, 2007). Where, as
here, the BIA affirms the IJ’s decision in some respects but
not others, we review the IJ’s decision as modified. See Xue
Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.
2005). We review the agency’s factual findings for substantial
evidence, and we review de novo legal conclusions and the
application of law to undisputed fact. See Weng v. Holder, 562
F.3d 510, 513 (2d Cir. 2009). In applying these standards, we
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assume the parties’ familiarity with the underlying facts and
procedural history.
Substantial evidence supports the BIA’s conclusion that,
even if Alla demonstrated past persecution based on a protected
ground, and was therefore entitled to a presumption of a well-
founded fear of future persecution, see Baba v. Holder, 569
F.3d 79, 86 (2d Cir. 2009), the government rebutted that
presumption by showing that the political situation in Albania
has changed fundamentally. As the BIA observed, the record
included a March 2006 U.S. State Department report describing
“no indications of systemic political persecution in Albania”
and noting that the Democratic Party displaced the Socialist
Party, to which Alla’s alleged persecutor belongs, in 2005.
See Hoxhallari v. Gonzales, 468 F.3d 179, 186 (2d Cir. 2006)
(noting this court’s “considerable deference” to State
Department country condition reports, citing “substantial
change in circumstances” in Albania, and rejecting claimed fear
of future persecution based on membership in Albanian
Democratic party). Thus, we need not reach Alla’s contention
that the BIA erred by rejecting his claim of past persecution
based on its conclusion that the harm he suffered was “in the
nature of personal animosity.” Nor do we address Alla’s
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contention that the BIA erred by failing to review the IJ’s
adverse credibility determination; rather, we construe the
BIA’s opinion as assuming Alla’s credibility. Because Alla is
unable to meet his burden of proof for asylum, his withholding
of removal and CAT claims necessarily fail. See Paul v.
Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument in
this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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