Mucaj v. Holder

11-1417-ag
Mucaj v. Holder
BIA
Hom, IJ
A089 249 869
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 26th day of April, two thousand twelve.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 RICHARD C. WESLEY,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _______________________________________
12
13 ARMEND MUCAJ,
14 Petitioner,
15
16 v. 11-1417-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Joshua Bardavid, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Linda S. Wernery, Assistant
27 Director; Susan Bennett Green, Trial
28 Attorney, Office of Immigration
29 Litigation, United States Department
30 of Justice, Washington, D.C.
 1 UPON DUE CONSIDERATION of this petition for review of a

2 decision of the Board of Immigration Appeals (“BIA”), it is

3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

4 review is DENIED.

5 Armend Mucaj, a native of Yugoslavia and a citizen of

6 Kosovo, seeks review of an April 6, 2011 decision of the BIA

7 affirming the March 3, 2009 decision of an immigration judge

8 (“IJ”), denying his application for asylum, withholding of

9 removal, and relief under the Convention Against Torture

10 (“CAT”). In re Armend Mucaj, No. A089 249 869 (B.I.A. Apr.

11 6, 2011), aff’g No. A089 249 869 (Immig. Ct. N.Y. City Mar.

12 3, 2009). We assume the parties’ familiarity with the

13 underlying facts and procedural history of this case, which

14 we reference only as necessary to explain our decision.

15 We review both the IJ’s and the BIA’s opinions “for the

16 sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237

17 (2d Cir. 2008). The applicable standards of review are

18 well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng

19 v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

20 In his petition, Mucaj contends that he was beaten and

21 threatened on account of his work as a journalist, and

22 accordingly, established past persecution and a well-founded

2
 1 fear of future persecution.1 We conclude that the agency

2 reasonably determined that Mucaj did not establish that any

3 abuse he suffered was on account of his membership in a

4 particular social group, i.e., journalists in his home

5 country. The evidence showed that Kurbogaj, a witness in a

6 murder trial whose testimony was described in an article

7 Mucaj wrote about the trial, was angry about what Mucaj had

8 written, and that people identifying themselves as

9 Kurbogaj’s associates beat and threatened Mucaj in response,

10 almost a year after the article was published. Mucaj

11 conceded in response to a question by the IJ that the

12 dispute amounted to a personal vendetta by Kurbogaj. Thus,

13 the agency’s determination that the harm Mucaj suffered was

14 based on a personal dispute, rather than his status as a

15 journalist was supported by substantial evidence. See

16 Koudriachova v. Gonzales, 490 F.3d 255, 262 (2d Cir. 2007)

1
The Government contends that Mucaj did not exhaust
his administrative remedies as to the issue of whether he
was a member of a particular social group of
“journalists.” However, the IJ found that Mucaj
“[c]learly” showed that he was a member of the particular
social group of “journalist[s] in his home country.” The
BIA did not disturb this finding and addressed the issue
of whether the harm suffered by Mucaj had a sufficient
nexus to his status as a journalist. Accordingly, we
consider the claim exhausted. See Ruiz-Martinez v.
Mukasey, 516 F.3d 102, 112 n.7 (2d Cir. 2008).
3
 1 (“[I]n determining whether an applicant ultimately qualifies

2 for asylum, courts must examine closely whether the

3 persecution the applicant fears derives primarily from his

4 . . . status as a member of th[e] particular social group or

5 whether it derives primarily from some other factor.”); In

6 re C- A-, 23 I. & N. Dec. 951, 959 (B.I.A. 2006) (observing

7 that a former police officer targeted “not because of his

8 status as a former police officer, but because of his role

9 in disrupting particular criminal activity, he would not be

10 considered, without more, to have been targeted as a member

11 of a particular social group”).

12 Even assuming, arguendo, that the assault by Kurbogaj’s

13 associates can fairly be attributed to the government,

14 Petitioner was unable to establish a nexus between the

15 assault and a protected ground. Thus, the agency properly

16 denied asylum and withholding of removal. See 8 U.S.C.

17 § 1101(a)(42); 8 U.S.C. § 1231(b)(3); Yueqing Zhang v.

18 Gonzales, 426 F.3d 540, 544 (2d Cir. 2005) (“[W]e treat as

19 identical the requirement under each statute [i.e.,

20 §§ 1101(a)(42) & 1231(b)(3)] of showing that persecution

21 relates to an enumerated ground.”). Further, because Mucaj

22 did not show that the authorities were aware of his personal

4
 1 dispute and refused to act in his defense, he did not show

2 that it is more likely than not that he would be tortured if

3 he returns to Kosovo. See Khouzam v. Ashcroft, 361 F.3d

4 161, 171 (2d Cir. 2004) (holding that an applicant seeking

5 relief under the CAT must show, among other things, “that

6 government officials know of or remain willfully blind to an

7 act and thereafter breach their legal responsibility to

8 prevent it”).

9 For the foregoing reasons, the petition for review is

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

11 removal that the Court previously granted in this petition

12 is VACATED, and any pending motion for a stay of removal in

13 this petition is DISMISSED as moot. Any pending request for

14 oral argument in this petition is DENIED in accordance with

15 Federal Rule of Appellate Procedure 34(a)(2), and Second

16 Circuit Local Rule 34.1(b).

17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
19
20

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