Gjiknuri v. Gonzales ( 2008 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-1328
ANILDA GJIKNURI, ET AL.
Petitioners,
v.
ATTORNEY GENERAL MICHAEL B. MUKASEY*,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Circuit Judge,
Stahl, Senior Circuit Judge,
and Oberdorfer,** Senior District Judge.
Ilana Greenstein, Maureen O’Sullivan, Jeremiah Friedman,
Harvey Kaplan, and Kaplan, O'Sullivan & Friedman, LLP on brief for
petitioner.
Terri J. Scadron, Attorney, Office of Immigration Litigation,
Michael B. Mukasey, Attorney General, and Quynh Bain, Senior
Litigation Counsel on brief for respondent.
January 15, 2008
*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Michael B. Mukasey has been substituted for former Attorney General
Alberto R. Gonzales as the respondent herein.
**
Of the District of Columbia, sitting by designation.
OBERDORFER, Senior District Judge. Anilda and Vangel
Gjiknuri,1 citizens of Albania, petition for review of the Board of
Immigration Appeals’ (BIA) affirmance of an Immigration Judge’s
(IJ’s) denial of their applications for asylum, withholding of
removal, and protection under the Convention Against Torture (CAT).
The Gjiknuris’ petition is foreclosed by Circuit precedent: Tota
v. Gonzales, 457 F.3d 161 (1st Cir. 2006), and Alibeaj v. Gonzales,
469 F.3d 188 (1st Cir. 2006); both uphold BIA determinations based
on country condition reports that persons of petitioners’ political
persuasion are not subject to persecution in Albania. We therefore
affirm.
Anilda and Vangel Gjiknuri came to the United States in
July 2001. In March 2002, the Immigration and Naturalization
Service issued Notices to Appear charging them with being
removable. They conceded removability and applied for relief based
on their alleged political persecution in Albania. The IJ
disbelieved the Gjiknuris’ story and denied relief. The BIA, in
effect, assumed without deciding that the petitioners had suffered
persecution. However, relying on the State Department’s 2004
country report, Albania: Profile of Asylum Claims and Country
Conditions (the "Report"), the BIA concluded that persons of
petitioners’ political persuasion are no longer subject to
1
The Gjiknuris’ application for asylum renders their minor
children Mirjan and Julia derivative applicants.
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persecution in Albania and, on that ground, affirmed the IJ’s
denial of their asylum claim.
According to the Gjiknuris, in December 1990, they joined
the Democratic Party of Albania. In February 1992, an Albanian
police officer struck Anilda on the face with the butt of his gun
while she participated in a demonstration against the Socialist
Party government. Four days later, the Gjiknuris’ apartment was
bombed. Because they feared they had been targeted for abuse by
the Socialist Party, they fled to Greece. They spent the next nine
years there, except for a few brief periods following expulsions
from Greece to Albania.
They also claimed that while Vangel was briefly in
Albania in October 1998, three armed men, including a man known to
him to be a member of the Socialist Party, accosted him and told
him to leave Albania within twenty-four hours. They further claim
that, during another such period in June 2001, they participated in
a Democratic Party demonstration in Albania; several days later,
five men arrested them and told them to stop their political
activities, referring to the 1992 bombing incident and warning that
“the same thing could happen again.” They detained Vangel for two
days, during which they beat, threatened, and insulted him.
Following this last incident, the Gjiknuris fled back to
Greece and decided to leave Greece permanently. Vangel and their
two children entered the United States after obtaining tourist
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visas at the American embassy in Athens, Greece. Anilda used a
false passport to enter Canada; from there she sneaked across the
border into the United States. Reunited, they filed the pending
application.
After an evidentiary hearing, an IJ held that the
Gjiknuris failed to carry their burden of proving a well-founded
fear of persecution in the event of their removal to Albania. The
IJ found that there was insufficient evidence connecting the
bombing to the Gjiknuris’ political opinions. He found the
Gjiknuris’ accounts of the other incidents of alleged persecution
incredible.
The BIA denied their appeal, holding that even if they
had proven past persecution, circumstances in Albania have changed
fundamentally such that they no longer have a well-founded fear of
persecution there. The BIA relied heavily upon the Report that, in
part, noted that: (1) Albanian citizens exercise their right to
change the government peacefully through periodic elections; (2)
the Democratic Party participates in the political system and holds
seats in Parliament; (3) officials have not arbitrarily withheld
permits for gatherings in public places; and (4) there were a few
instances of police maltreatment of political protestors, but no
confirmed cases of politically-motivated detention or reports of
political prisoners. The BIA took administrative notice that the
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incumbent Prime Minister of Albania is a member of the Democratic
Party.
On their appeal here, the Gjiknuris contend that the BIA
violated their right to due process by failing to “address any
issue which had been raised at trial” and by basing the entirety of
its decision on the changed political circumstances in Albania
noted by the State Department, a fact “neither raised nor
adjudicated below.” Petitioners’ Opening Brief at 23. This
contention is without merit because the Gjiknuris had the
opportunity to move to have the BIA reconsider or reopen
proceedings after the BIA affirmed the IJ’s decision. See 8 C.F.R.
§ 1003.2 (setting forth the procedures for making and adjudicating
motions to reopen and reconsider Board decisions). Nothing in the
record indicates that the Gjiknuris made such a motion.
Because the Gjiknuris had the opportunity to be heard,
they received all the process they are due. In Gebremichael v.
INS, we held that “the motion to reopen process can ordinarily
satisfy the demands of due process” when the BIA takes official
notice of extra-record facts concerning a change in government. 10
F.3d 28, 38 (1st Cir. 1993); see also Bollanos v. Gonzales, 461
F.3d 82 (1st Cir. 2006) (affirming a BIA holding that conditions in
Albania had fundamentally changed where the IJ had not addressed
that issue).
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Looking beyond the due process technicality, we are
satisfied with the merits of the IJ/BIA denial of petitioners’
asylum claim. In order to qualify for asylum, the Gjiknuris must
show that they are outside their home country and “unable or
unwilling to return . . . because of persecution or a well-founded
fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.” 8
U.S.C. § 1101(a)(42)(A), 1158(b)(1)(A), (B)(i); 8 C.F.R. §
208.13(a). Proof of past persecution creates a presumption that
the persecutee has such a well-founded fear. 8 C.F.R. §
208.13(b)(1). However, this presumption can be rebutted by a
preponderance of evidence that “[t]here has been a fundamental
change in circumstances such that the applicant no longer has a
well-founded fear of persecution.” 8 C.F.R. § 208.13(b)(1)(i)(A).
“Whether circumstances have fundamentally changed is a
factual question that we review under the deferential substantial
evidence standard.” Bollanos, 461 F.3d at 85. “Thus, we must
accept the agency's determinations ‘unless any reasonable
adjudicator would be compelled to conclude to the contrary.’” Id.(quoting 8 U.S.C. § 1252(b)(4)(B)).
“State Department reports are generally probative of
country conditions.” Palma-Mazariegos v. Gonzales, 428 F.3d 30, 36
(1st Cir. 2005). Although “abstract evidence of generalized
changes in country conditions, without more, cannot rebut a
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presumption of a well-founded fear of future persecution,” a State
Department Country Conditions Report “may be sufficient, in and of
itself,” if it “convincingly demonstrates material changes in
country conditions that affect the specific circumstances of an
asylum seeker's claim.” Id. at 35-36 (emphasis added).
We have recently upheld several agency determinations
that fundamental changes to conditions in Albania rebutted the
presumption of a well-founded fear of future persecution arising
from allegations of past persecution based on support for the
Democratic Party. See, e.g., Alibeaj, 469 F.3d at 192-
93,(affirming an agency finding that conditions in Albania have
fundamentally changed as evidenced by the State Department's 2003
report, Albania: Profile of Asylum Claims and Country Conditions);
Tota, 457 F.3d at 167 (holding that a State Department report was
sufficient “in and of itself” to rebut the petitioner’s presumptive
well-founded fear of future persecution in Albania based on the
petitioner’s membership in the Democratic Party).
Petitioner has presented us with no reason to deviate
from our holdings in Tota and Alibeaj. Because the Gjiknuris’
asylum claim fails, their application for withholding of removal
necessarily fails as well. See Mediouni v. INS, 314 F.3d 24, 27
(1st Cir. 2002).
The Gjiknuris contend that we should reverse the BIA’s
dismissal of their claim for relief under the CAT because the BIA
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did not explain its conclusion. Although the BIA did not
explicitly connect its analysis of fundamentally changed conditions
to whether the Gjiknuris will more likely than not face torture if
returned to Albania, its analysis applies equally to the likelihood
of future torture as it does to future persecution.
Accordingly, we deny the petition for review.
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