08-4556-ag
Strumi v. Holder
BIA
Straus, IJ
A095 476 744
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 11 th day of February, two thousand ten.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 PIERRE N. LEVAL,
10 PETER W. HALL,
11 Circuit Judges.
12 ______________________________________
13
14 RONALD STRUMI,
15 Petitioner,
16
17 v. 08-4556-ag
18 NAC
19 ERIC H. HOLDER JR., ATTORNEY GENERAL, 1
20 Respondent.
21
22 ______________________________________
23 FOR PETITIONER: Glenn T. Terk, Wethersfield,
24 Connecticut.
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
2 FOR RESPONDENT: Tony West, Assistant Attorney
3 General; Richard M. Evans, Assistant
4 Director; Benjamin J. Zeitlin, Trial
5 Attorney, United States Department
6 of Justice, Office of Immigration
7 Litigation, Washington, D.C.
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED, that the petition for review
11 is DENIED.
12 Ronald Strumi, a native and citizen of Albania, seeks
13 review of an August 20, 2008 order of the BIA dismissing his
14 appeal from the January 4, 2007 decision of Immigration
15 Judge (“IJ”) Michael W. Straus, which denied his application
16 for asylum, withholding of removal, and relief under the
17 Convention Against Torture (“CAT”), and seeks a stay of the
18 voluntary departure period. In re Ronald Strumi, No. 095
19 476 744 (B.I.A. Aug. 20, 2008), aff’g No. 095 476 744
20 (Immig. Ct. Hartford Jan. 4, 2007). We assume the parties’
21 familiarity with the underlying facts and procedural history
22 in this case.
23 When the BIA affirms the IJ’s decision in some respects
24 but not others, this Court reviews the IJ’s decision as
25 modified by the BIA’s decision, i.e., minus the arguments
2
1 for denying relief that were rejected by the BIA. See Xue
2 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d
3 Cir. 2005). We review the agency’s factual findings under
4 the substantial evidence standard. See 8 U.S.C.
5 § 1252(b)(4)(B), Corovic v. Mukasey, 519 F.3d 90, 95 (2d
6 Cir. 2008). We review de novo questions of law and the
7 application of law to undisputed fact. See, e.g., Salimatou
8 Bah v. Mukasey, 529 F.3d 99, 100 (2d Cir. 2008).
9 Substantial evidence supports the agency’s conclusion
10 that conditions in Albania have fundamentally changed such
11 that Strumi does not have a well-founded fear of persecution
12 despite his showing of past persecution. See 8 C.F.R.
13 § 1208.13(b)(1)(i); see also Hoxhallari v. Gonzales, 468
14 F.3d 179, 187 (2d Cir. 2006) (per curiam) (affirming
15 agency’s finding that an applicant was ineligible for asylum
16 and withholding of removal based on material political
17 changes in Albania). Strumi argues that the agency erred in
18 relying upon two State Department reports to find that
19 conditions in Albania had fundamentally changed given that
20 he had presented evidence demonstrating the contrary, and
21 that the agency failed to make an individualized
22 determination as to how the changed circumstances would
23 specifically affect him.
3
1 However, as this Court has previously found, “there is
2 no doubt that there has been a fundamental change in the
3 political structure and government of Albania.” Hoxhallari,
4 468 F.3d at 188. Moreover, the agency did conduct an
5 individualized analysis as to how the fundamental change in
6 Albania affected Strumi’s particular claim, which was based
7 on the expression of his political opinion. Accordingly,
8 the agency reasonably determined that the Government had
9 successfully rebutted the presumption of a well-founded fear
10 of persecution with a showing of a fundamental change in
11 circumstances in Albania. See 8 U.S.C. § 1252(b)(4)(B);
12 8 C.F.R. § 1208.13(b)(1)(i).
13 The agency also did not abuse its discretion in
14 concluding that Strumi did not warrant a grant of
15 “humanitarian asylum.” See 8 C.F.R. § 1208.13(b)(1)(iii)
16 (providing that an applicant “may be granted asylum, in the
17 exercise of the decision-maker’s discretion” even in the
18 absence of a well-founded fear of persecution); 8 U.S.C.
19 § 1252(b)(4)(D) (providing that we may overturn a
20 discretionary denial of asylum only if it is “manifestly
21 contrary to the law and an abuse of discretion”); Wu Zheng
22 Huang v. INS, 436 F.3d 89, 96 (2d Cir. 2006). Humanitarian
4
1 asylum has been reserved for applicants who have suffered
2 “atrocious forms of persecution.” Matter of Chen, 20 I.&N.
3 Dec. 16, 19 (BIA 1989). This Court has found that an
4 applicant must demonstrate “long-lasting physical or mental
5 effects of his persecution” in order to warrant a
6 humanitarian grant of asylum. Omaro Jalloh v. Gonzales, 498
7 F.3d 148, 152 (2d Cir. 2007). While Strumi was subject to
8 physical assaults and death threats by security forces, we
9 cannot find that the agency acted arbitrarily or
10 capriciously in determining that this mistreatment did not
11 rise to the extreme level required for humanitarian asylum.
12 See id; see also Hoxhallari, 468 F.3d at 184 (upholding the
13 denial of humanitarian asylum to a supporter of the
14 Democratic Party in Albania who had been beaten and harassed
15 on six occasions).
16 We are also unpersuaded by Strumi’s due process claim
17 based on the IJ’s alleged bias against him. While the IJ
18 expressed his belief that Strumi was not a truthful witness,
19 he nonetheless acknowledged that in light of the BIA’s
20 order, he was required to presume that Strumi had endured
21 past persecution. Moreover, the BIA explicitly disavowed
22 the IJ’s remarks as to Strumi’s credibility. In these
5
1 circumstances, we do not find that Strumi received anything
2 less than a full and fair opportunity to present his claims.
3 See Ali v. Mukasey, 529 F.3d 478, 490 (2d Cir. 2008);
4 Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir. 2008).
5 Finally, Strumi has waived any challenge the agency’s
6 denial of his application for withholding of removal and CAT
7 relief. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541
8 n.7 (2d Cir. 2005).
9 For the foregoing reasons, the petition for review is
10 DENIED. In addition, Strumi’s motion for a stay of the
11 voluntary departure period is DENIED. See Thapa v.
12 Gonzales, 460 F.3d 323, 334 (2d Cir. 2006). As we have
13 completed our review, any stay of removal that the Court
14 previously granted in this petition is VACATED, and any
15 pending motion for a stay of removal in this petition is
16 DISMISSED as moot. Any pending request for oral argument in
17 this petition is DENIED in accordance with Federal Rule of
18 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
19 34(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
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