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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