10-2824-ag
Bacuku v. Holder
BIA
Abrams, IJ
A098 273 744
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.
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 22nd day of September, two thousand eleven.
PRESENT:
GUIDO CALABRESI,
GERARD E. LYNCH,
SUSAN L. CARNEY,
Circuit Judges.
_______________________________________
KASTRIOT BACUKU
Petitioner,
v. 10-2824-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Saul C. Brown, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; M. Jocelyn Lopez Wright,
Senior Litigation Counsel; Melissa
K. Lott, 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 GRANTED in part and DENIED in part.
Kastriot Bacuku, a citizen of Albania, seeks review of
a June 21, 2010, order of the BIA affirming the June 19,
2008, decision of Immigration Judge (“IJ”) Steven R. Abrams,
which denied his application for asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). In re Kastriot Bacuku, No. A098 273 744 (B.I.A.
June 21, 2010), aff’g No. A098 273 744 (Immig. Ct. N.Y. City
June 19, 2008). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
Under the circumstances of this case, we have reviewed
the decision of the IJ as supplemented by the BIA. See Yan
Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We
review the agency’s factual findings under the substantial
evidence standard, treating them as “conclusive unless any
reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B); see, e.g., Bah v.
Mukasey, 529 F.3d 99, 110 (2d Cir. 2008). However, we will
vacate and remand for new findings if “the agency’s
reasoning or its fact-finding process was sufficiently
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flawed.” Id.; see also Cao He Lin v. U.S. Dep’t of Justice,
428 F.3d 391, 406 (2d Cir. 2005).
The regulations require IJs to exercise the Attorney
General’s discretion to deny asylum to applicants who
establish eligibility based solely on past persecution when
the government establishes a fundamental change in
circumstances sufficient to rebut the presumption of well-
founded fear. 8 C.F.R. § 1208.13(b)(1)(i). The agency must
provide a reasoned basis for finding that changed country
conditions rebut the presumption. Niang v. Mukasey, 511
F.3d 138, 148-49 (2d Cir. 2007).
Given that Bacuku alleged that he suffered past
persecution by the Communist Party and the Socialist Party
because of his support for the Democratic Party, the agency
did not err in determining that the election of the
Democratic Party to power in Albania in 2005 constituted a
fundamental change in circumstances rebutting Bacuku’s fear
of future persecution on account of a protected ground based
on his past persecution. See 8 C.F.R. § 1208.13(b)(1);
Hoxhallari v. Gonzales, 468 F.3d 179, 187 (2d Cir. 2006).
In addition, to the extent that Bacuku claimed a well-
founded fear of future persecution separate from his claim
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of past persecution, the agency did not err in determining
that Bacuku failed to establish a well-founded fear of
future persecution based on his testimony that he may
associate with the Christian Democratic Party if returned to
Albania and evidence that his brother had been attacked
because of his support for the Christian Democratic Party.
Bacuku conceded that he was not a member of the Christian
Democratic Party, he did not have information that anyone,
other than his brother, had been harmed due to membership in
that party, he did not know of any candidate for the
Christian Democratic Party who had faced any problems, and
he had not been politically active in the United States.
Additionally, Bacuku did not provide any background
materials indicating that members of the Christian
Democratic Party have been targeted or suffered harm. See
Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005)
(holding that a fear is not objectively reasonable if it
lacks “solid support” in the record and is merely
“speculative at best.”).
However, the BIA abused its discretion by denying
humanitarian asylum without addressing all of the past
persecution Bacuku suffered. Bacuku claimed that he and his
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family suffered harm under the former Communist government,
he was arrested and tortured by the secret police under the
rule of the Socialist Party on three separate occasions
between 1997 and 2003, and he continued to suffer leg, hip,
back, and head injuries as well as post traumatic stress
disorder and major depression as a result of his
persecution. The only stated justification for the agency’s
denial of humanitarian asylum was that Bacuku had remained
in Albania and actively participated politically long after
the fall of the Communist government in 1991. Given that
the agency presumed credibility and assumed, arguendo, that
Bacuku had suffered past persecution, it erred by addressing
only the harm suffered by Bacuku under the Communist regime
in denying humanitarian asylum, relying on Bacuku’s
continued residence in Albania after the fall of the
Communist Party and his active political participation, and
failing to address whether the arrests and torture Bacuku
suffered due to that political participation, when coupled
with the previous harm he suffered, rose to a level of
severity warranting humanitarian asylum and whether he
demonstrated that he had long lasting physical and mental
effects of his persecution. See 8 C.F.R.
§ 1208.13(b)(1)(iii)(A); Kone v. Holder, 596 F.3d 141, 152
5
(2d Cir. 2010) (providing that humanitarian asylum may be
granted to applicants who suffered an atrocious form of
persecution and established long-lasting effects of the
harm, or who may suffer “other serious harm upon their
return” that is not related to a protected ground); Ke Zhen
Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir.
2001) (finding that the BIA abuses its discretion if it
fails to consider the record as a whole and fails to address
all factors relevant to petitioner’s claim).
For the foregoing reasons, the petition for review is
GRANTED in part and DENIED in part, and REMANDED to the
agency for further proceedings consistent with this opinion.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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