11-1920-ag
Vila v. Holder
BIA
Vomacka, IJ
A078 323 385
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 3rd day of May, two thousand twelve.
PRESENT:
PETER W. HALL,
GERARD E. LYNCH,
DENNY CHIN,
Circuit Judges.
_____________________________________
KASTRIOT VILA,
Petitioner,
v. 11-1920-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Caridad Pastor Cardinale, Pastor &
Associates, P.C., Troy, Michigan.
FOR RESPONDENT: Tony West, Assistant Attorney
General; William C. Peachey,
Assistant Director; Andrew B.
Insenga, Trial Attorney, Office of
Immigration Litigation, Civil
Division, 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 DENIED.
Petitioner Kastriot Vila, a native and citizen of
Albania, seeks review of an April 27, 2011, decision of the
BIA affirming the April 27, 2009, decision of Immigration
Judge (“IJ”) Alan Vomacka denying his application for asylum
and withholding of removal. In re Kastriot Vila, No. A078
323 385 (B.I.A. April 27, 2011), aff’g No. A078 323 385
(Immig. Ct. N.Y. City April 27, 2009). We assume the
parties’ familiarity with the underlying facts and
procedural history of the case.
Under the circumstances of this case, we have reviewed
the IJ’s decision as supplemented by the BIA. See Yan Chen
v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We apply the
“substantial evidence” standard of review, and will “uphold
the IJ’s factual findings if they are supported by
reasonable, substantial and probative evidence in the
record.” Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.
2
2009) (internal quotation marks omitted); see also 8 U.S.C.
§ 1252(b)(4)(B). “By contrast, we review de novo questions
of law and the BIA’s application of law to undisputed fact.”
Yanqin Weng, 562 F.3d at 513 (internal quotation marks and
brackets omitted).
I. Well-Founded Fear of Persecution
Vila contends that he established a well-founded fear
of persecution based on evidence that members of the
Albanian Socialist Party persecuted him due to his pro-
democracy views. Because the IJ assumed past persecution,
Vila was presumed to have a well-founded fear of
persecution, but the IJ reasonably found that the government
rebutted that presumption by establishing that the
circumstances in Albania have fundamentally changed.
See 8 C.F.R. § 1208.13(b)(1). According to the two State
Department reports and the Organization for Security and
Cooperation in Europe (“OSCE”) reports on which the IJ
relied, the Albanian government has been moving towards
democratization, fostering electoral reforms, and undergoing
peaceful transitions between governments. The reports also
note that the country’s Democratic Party gained control of
the Albanian Parliament in 2005.
3
Contrary to Vila’s assertions, the fact that the
Socialist Party maintains popular support in his native
village and in the country does not negate this fundamental
change in interparty relations. Absent contradictory
evidence that the Socialist Party targets members of the
majority Democratic Party, the IJ reasonably relied on these
reports to conclude that Vila no longer had a well-founded
fear of persecution. See Hoxhallari v. Gonzales, 468 F.3d
179, 185-86 (2d Cir. 2006) (finding material change in
Albania when State Department reports identify Albania as
moving away from Communism and towards democratization).
II. Due Process Claims
Vila’s claim of IJ bias is also unavailing. In
deciding whether an IJ has exhibited bias or hostility
rising to the level of a due process violation, we examine
whether (1) the alien was provided a “full and fair hearing”
and a “meaningful opportunity to be heard,” Li Hua Lin v.
U.S. Dep’t of Justice, 453 F.3d 99, 104-05 (2d Cir. 2006),
and (2) the IJ’s conduct during the hearing prevents us from
conducting a “meaningful review” of the agency’s decision,
Ali v. Mukasey, 529 F.3d 478, 490 (2d Cir. 2008).
4
First, the IJ afforded sufficient due process when he
took administrative notice of the country reports because he
provided Vila the opportunity to review the reports, object,
and rebut the information within the reports with his own
evidence. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 166-
67 (2d Cir. 2008) (finding that procedural due process is
satisfied when applicant is given opportunity to rebut the
significance of potentially dispositive facts of which the
agency has taken administrative notice).
Regarding Vila’s perception that the IJ lacked “respect
for the Petitioner” because the IJ suggested that Vila did
not “stay and fight out the struggle” for his country, Vila
takes the IJ’s statement out of context. Read in
conjunction with the entire opinion, the IJ was reasoning
that the rise in popularity of the Democratic Party will
discourage any attacks by the waning Socialist Party on
Democratic Party members. Similarly, the IJ’s comment that
Vila had “the advantage of hindsight” in preparing his case
is of no import because the IJ nevertheless assumed Vila’s
credibility. Accordingly, Vila’s due process claims are
without merit. See Jian Hui Shao, 546 F.3d at 166-67.
5
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, petitioner’s
pending motion for a stay of removal is DENIED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
6