09-1392-ag
Bushati v. Holder
BIA
Abrams, IJ
A099 682 922
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 18 th day of February, two thousand ten.
5
6 PRESENT:
7 ROBERT D. SACK,
8 PETER W. HALL,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11
12 _______________________________________
13
14 GERT BUSHATI,
15 Petitioner,
16
17 v. 09-1392-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Linda L. Foster, Fresh Meadows, New
25 York.
26
1 FOR RESPONDENT: Tony West, Assistant Attorney
2 General, Civil Division; Barry J.
3 Pettinato, Assistant Director;
4 Katharine E. Clark, Trial Attorney,
5 Office of Immigration Litigation,
6 United States Department of Justice,
7 Washington, D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED, that the petition for review
12 is DENIED.
13 Gert Bushati, a native and citizen of Albania, seeks
14 review of a March 10, 2009, order of the BIA affirming the
15 March 8, 2007, decision of Immigration Judge (“IJ”) Steven
16 R. Abrams, which denied his application for asylum,
17 withholding of removal, and relief under the Convention
18 Against Torture (“CAT”). In re Gert Bushati, No. A099 682
19 922 (B.I.A. Mar. 10, 2009), aff’g No. A099 682 922 (Immig.
20 Ct. N.Y. City Mar. 8, 2007). We assume the parties’
21 familiarity with the underlying facts and procedural history
22 in this case.
23 As an initial matter, we have jurisdiction under
24 8 U.S.C. § 1252(a)(1) to review the denial of relief in
25 “asylum-only” proceedings. See Kanacevic v. INS, 448 F.3d
26 129, 134 (2d Cir. 2006). We review the decision of the IJ
2
1 as supplemented by the BIA. See Yan Chen v. Gonzales, 417
2 F.3d 268, 271 (2d Cir. 2005). The applicable standards of
3 review are well-established. See Bah v. Mukasey, 529 F.3d
4 99, 110 (2d Cir. 2008); Manzur v. U.S. Dep't of Homeland
5 Sec., 494 F.3d 281, 289 (2d Cir. 2007).
6 Contrary to Bushati’s argument, substantial evidence
7 supports the agency’s finding that he did not sufficiently
8 establish that his attackers were government agents or
9 individuals the government is unable or unwilling to
10 control. See Matter of Acosta, 19 I. & N. Dec. 211, 222
11 (BIA 1985); accord Ivanishvili v. U.S. Dep’t of Justice, 433
12 F.3d 332, 342 (2d Cir. 2006). Bushati presented evidence
13 that he was attacked by men wearing masks, but that his
14 attackers had no other physical indicia of being police
15 officers. The affidavit corroborating these attacks states
16 that the attackers’ identity and the reasons for their
17 actions could not be discerned. Therefore, the agency
18 reasonably found such evidence did not establish that his
19 attackers were Albanian police officers, and the record does
20 not compel the contrary conclusion. See 8 U.S.C.
21 § 1252(b)(4)(B) (noting that a court of appeals may overturn
22 administrative findings of fact only if any reasonable
3
1 factfinder would be compelled to conclude to the contrary).
2 Because Bushati failed to challenge the IJ’s finding
3 that he did not establish a pattern or practice of
4 persecution of ethnic Chams in Albania before the BIA, we
5 find that he has failed to exhaust his administrative
6 remedies. See Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004).
7 We also find that because Bushati failed to establish past
8 persecution, he is entitled to neither a presumption of a
9 well-founded fear of persecution, see 8 C.F.R.
10 § 1208.13(b)(1), nor humanitarian asylum, see Matter of
11 Chen, 20 I. & N. Dec. 16, 19 (BIA 1989). Moreover, the
12 agency reasonably found based on the evidence before it that
13 any well-founded fear Bushati may have is undermined by the
14 fact that his family remains in Albania unharmed. See
15 Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999).
16 Finally, we are without authority to consider the
17 evidence Bushati submitted to the Court. See 8 U.S.C.
18 § 1252(b)(4)(A) (“[T]he court of appeals shall decide the
19 petition only on the administrative record on which the
20 order of removal is based.”). Additionally, we decline to
21 remand to the BIA for consideration of this evidence where,
22 inter alia, Bushati failed to submit it to the agency. See
4
1 Xiao Xing Ni v. Gonzales, 494 F.3d 260, 269 (2d Cir. 2007).
2 Because Bushati was unable to show the objective
3 likelihood of persecution needed to make out an asylum
4 claim, he was necessarily unable to meet the higher standard
5 required to succeed on a claim for withholding of removal.
6 See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
7 Bushati has failed to challenge sufficiently the agency’s
8 denial of his application for CAT relief before this Court.
9 See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545
10 n.7 (2d Cir. 2005).
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of
13 removal that the Court previously granted in this petition
14 is VACATED, and any pending motion for a stay of removal in
15 this petition is DISMISSED as moot. Any pending request for
16 oral argument in this petition is DENIED in accordance with
17 Federal Rule of Appellate Procedure 34(a)(2), and Second
18 Circuit Local Rule 34(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
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