Hyska v. Sessions

16-599 (L)
Hyska v. Sessions
BIA
Montante, IJ
A096 267 268

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 TO 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 Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
6th day of October, two thousand seventeen.

PRESENT:
JON O. NEWMAN,
REENA RAGGI,
PETER W. HALL,
Circuit Judges.
_____________________________________

IRISI HYSKA,
Petitioner,

v. 16-599(L),
16-3086 (Con)
NAC
JEFFREY B. SESSIONS III, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________

FOR PETITIONER: Michael P. DiRaimondo, Marialaina L.
Masi, Stacy A. Huber, DiRaimondo &
Masi, LLP, Melville, NY.

FOR RESPONDENT: Joyce C. Branda, Deputy Assistant
Attorney General; Janette L. Allen,
Senior Litigation Counsel; Jennifer
A. Bowen, Trial Attorney, Office of
 Immigration Litigation, United
States Department of Justice,
Washington, DC.

UPON DUE CONSIDERATION of these petitions for review of

Board of Immigration Appeals (“BIA”) decisions, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petitions for review

are DENIED.

In the lead petition, petitioner Irisi Hyska, a native and

citizen of Albania, seeks review of a February 5, 2016, decision

of the BIA affirming a March 25, 2015, decision of an Immigration

Judge (“IJ”) denying Hyska’s application for cancellation of

removal. In re Irisi Hyska, No. A096 267 268 (B.I.A. Feb. 5,

2016), aff’g No. A096 267 268 (Immig. Ct. Buffalo Mar. 25, 2015).

In the consolidated petition, Hyska seeks review of an August

5, 2016, decision of the BIA denying his motion to reopen. In

re Irisi Hyska, No. A096 267 268 (B.I.A. Aug. 5, 2016). We

assume the parties’ familiarity with the underlying facts and

procedural history in this case.

I. Lead Petition

We have reviewed the IJ’s and BIA’s opinions “for the sake

of completeness.” Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir.

2006). We lack jurisdiction to review the factual

determinations underlying the denial of cancellation of

removal. See 8 U.S.C. § 1252(a)(2)(B)(i); Barco-Sandoval v.
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Gonzales, 516 F.3d 35, 38-39 (2d Cir. 2008). We retain

jurisdiction to review constitutional claims and questions of

law. 8 U.S.C. § 1252(a)(2)(D). To ascertain whether a

petitioner raises constitutional challenges or questions of

law, we “study the arguments asserted” and “determine,

regardless of the rhetoric employed in the petition, whether

it merely quarrels over the correctness of the factual finding

or justification for the discretionary choices, in which case

the court would lack jurisdiction.” Xiao Ji Chen v. U.S. Dep’t

of Justice, 471 F.3d 315, 329 (2d Cir. 2006).

Hyska argues that the IJ rendered an inconsistent decision

in denying cancellation but granting voluntary departure. As

the Government observes, Hyska failed to exhaust this argument

before the BIA, and so we decline to consider it. Lin Zhong

v. U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d Cir. 2007)

(defining exhaustion doctrine).

Hyska also suggests that the IJ placed too much weight on

his evasive testimony and prior criminal history in denying

cancellation. That discretionary weighing of the evidence

does not raise a constitutional claim or question of law. 8

U.S.C. § 1252(a)(2)(B)(i); Barco-Sandoval, 516 F.3d at 38-39;

Mendez v. Holder, 566 F.3d 316, 323 (2d Cir. 2009) (the agency

may commit an error of law where “important” facts have been
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“totally overlooked and others have been seriously

mischaracterized”).

II. Motion To Reopen

We review the BIA’s denial of a motion to reopen for abuse

of discretion, “mindful that motions to reopen ‘are

disfavored.’” Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006)

(quoting INS v. Doherty, 502 U.S. 314, 322-23 (1992)).

Hyska argues that the BIA should have reevaluated his

cancellation application in light of the evidence he submitted

with his motion. In his motion, Hyska said that his former

attorney should have presented his family’s history of

persecution and evidence of current country conditions in

support of his cancellation application. Hyska’s request that

the BIA reevaluate his cancellation application was therefore

subsidiary to his ineffective assistance claim. But he dropped

that claim. Moreover, it made sense for Hyska to link a renewed

cancellation application to his ineffective assistance claim.

A motion to reopen must present evidence that “was not available

and could not have been discovered or presented at the former

hearing.” 8 C.F.R. § 1003.2(c)(1). But Hyska’s documents

related almost entirely to events that predated his March 2015

removal hearing, and his motion did not provide a ground for

reopening the cancellation application absent ineffective
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assistance of counsel. See, e.g., Ri Kai Lin v. BCIS, 514 F.3d

251, 256 (2d Cir. 2008) (“We find that the BIA acted within its

allowable discretion when it denied Lin’s motion to reopen based

on a straightforward application of the regulations.”).

In the main, Hyska’s motion sought asylum based on what he

characterized as new and material evidence of changed country

conditions in Albania. The BIA denied Hyska’s motion for

failure to demonstrate his prima facie eligibility for asylum,

without providing explicit reasoning for that conclusion. As

Hyska notes, the BIA’s “[f]ailure to explain a decision

adequately” may provide a basis for remand if it leaves the

parties and this Court with “controversy and confusion.” Ke

Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 96-97 (2d Cir.

2001). However, the BIA’s decision described Hyska’s

documentary evidence in a way that implies its reasons for

finding that Hyska failed to establish his prima facie

eligibility for asylum. INS v. Abudu, 485 U.S. 94, 104 (1988)

(the BIA “may hold that the movant has not established a prima

facie case for the underlying substantive relief sought”).

Hyska submitted documents related to the harm his parents

purportedly suffered based on their pro-democracy activities.

But those events took place under the prior communist regime,

and affected members of Hyska’s family, not Hyska himself, and
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therefore cannot establish his eligibility for asylum. See Shi

Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 311 (2d Cir.

2007).

Hyska also submitted a document from Bernd Fischer

describing the Socialist Party’s consolidation of

authoritarian control in Albania. But Hyska does not claim to

belong to any opposition party, engage in political activities,

or intend to do either if returned to Albania. He is therefore

not similarly situated to the people and situations that Fischer

describes. Cf. Y.C. v. Holder, 741 F.3d 324, 333 (2d Cir. 2013)

(explaining that it is speculative for asylum applicant to

assume that Chinese government would discover her political

activities in the United States).

Hyska attested to having been beaten by police after he

witnessed a shooting. But he drew no connection between that

beating and any protected ground for asylum. 8 U.S.C.

§ 1101(a)(42) (defining refugee). Nor did he give the BIA any

basis to infer that this type of treatment will recur upon his

return to Albania nearly two decades later, as required for CAT

relief. See, e.g., Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d

Cir. 2004) (describing test as whether applicant “will more

likely than not be tortured if he is deported”). Finally, Hyska

alleged that his family is in the midst of a blood feud with
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a neighbor over property. Hyska’s passing description of the

land dispute would not compel any reasonable fact-finder to

conclude that he will be subjected to government-sanctioned

persecution or torture as a consequence. See Jian Hui Shao v.

Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) (review of the BIA’s

fact-finding on a motion to reopen is for substantial evidence).

Based on this record, the BIA had the discretion to find that

Hyska failed to demonstrate his prima facie eligibility for

asylum, withholding of removal, or CAT relief.

For the foregoing reasons, the petitions for review are

DENIED. As we have completed our review, any stay of removal

that the Court previously granted is VACATED, and any pending

motion for a stay of removal 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 34.1(b).

FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk

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