Veliu v. Holder , 489 F. App'x 497 ( 2012 )

11-944-ag
Veliu v. Holder
BIA
Nelson, IJ
A099 521 162
A099 521 163
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 31st day of July, two thousand twelve.
PRESENT:
RICHARD C. WESLEY,
RAYMOND J. LOHIER, JR.,
SUSAN L. CARNEY,
Circuit Judges.
_______________________________________
REZEART VELIU, AMIJET KERKUTI,
Petitioners,
v. 11-944-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONERS: Gregory Marotta, Vernon, New Jersey.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Susan K. Houser; Francis W.
Fraser, Senior Litigation Counsel,
Office of Immigration Litigation,
United States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
review is DENIED.
Rezeart Veliu and Amijet Kerkuti, natives of the former
Yugoslavia, ethnic Albanians, and citizens of Macedonia,
seek review of a February 16, 2011 decision of the BIA that
affirmed the February 27, 2009 decision of an immigration
judge (“IJ”) denying Veliu’s application for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”), and the derivative claim of
Kerkuti, Veliu’s wife. In re Rezeart Veliu, Amijet Kerkuti,
Nos. A099 521 162/163 (B.I.A. Feb. 16, 2011), aff’g Nos.
A099 521 162/163 (Immig. Ct. N.Y. City Feb. 27, 2009). We
assume the parties’ familiarity with the underlying facts
and procedural history of this case.
Under the circumstances of this case, we review both
the BIA’s and IJ’s opinions. Zaman v. Mukasey, 514 F.3d
233, 237 (2d Cir. 2008). The applicable standards of review
are well established. 8 U.S.C. § 1252(b)(4)(B); Aliyev v.
Mukasey, 549 F.3d 111, 115 (2d Cir. 2008).
Veliu contends that the agency erred by failing to
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consider whether he established past persecution in
Macedonia. But the IJ reasonably construed his application
as based solely on his claim of a well-founded fear of
future persecution instead, because Veliu testified that he
had never been arrested, detained, beaten, or otherwise
harmed in Macedonia, and the harassment that his family
members allegedly suffered in the past was not sufficient to
establish past persecution as to Veliu. See Shi Liang Lin
v. U.S. Dep’t of Justice, 494 F.3d 296, 308 (2d Cir. 2007)
(concluding “that the statutory scheme unambiguously
dictates that applicants can become candidates for asylum
relief only based on persecution that they themselves have
suffered”); see also Ivanishvili v. U.S. Dep’t of Justice,
433 F.3d 332, 341 (2d Cir. 2006) (holding that in order to
constitute persecution, harm must be sufficiently severe,
rising above “mere harassment”).
Absent past persecution, an alien may establish
eligibility for asylum by demonstrating a well-founded fear
of future persecution. See 8 C.F.R. § 1208.13(b)(2). Veliu
argues that he established such a well-founded fear based on
the expected consequences of his prior evasion of service in
the Macedonian military. Although past avoidance of
compulsory military service generally does not provide a
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basis for asylum, we have recognized exceptions to this rule
when (1) “an individual’s refusal to serve in the military
leads to disproportionately excessive penalties, inflicted
on him or her because of that individual’s race, religion,
nationality, membership in a particular social group, or
political opinion”; or (2) “an individual . . . is fleeing
to avoid punishment for refusing to join a military force
condemned by the international community.” Islami v.
Gonzales, 412 F.3d 391, 396 (2d Cir. 2005), overruled in
part on other grounds by Shi Liang Lin v. U.S. Dep’t of
Justice, 494 F.3d 296, 305 (2d Cir. 2007) (internal
quotation marks and citations omitted).
Here, the agency did not err in finding that Veliu
failed to demonstrate a well-founded fear of suffering
disproportionately excessive penalties on account of his
ethnicity for his refusal to serve in the Macedonian
military. As the IJ found, the record evidence indicates
that Macedonian draft evaders, regardless of ethnicity, most
often face a minor fine; they may be imprisoned for up to
two months. We have held that “[p]unishment for violation
of a generally applicable criminal law is not persecution.”
Saleh v. U.S. Dep’t of Justice, 962 F.2d 234, 239 (2d Cir.
1992). Moreover, although the 2007 U.S. Department of State
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Country Report on Human Rights Practices in Macedonia (“2007
Report”) stated that ethnic Albanians face discrimination in
Macedonia, this evidence did not demonstrate that the
discrimination rises to the level of persecution. See
Ivanishvili, 433 F.3d at 341. Moreover, the report advised
that the treatment of ethnic minorities had improved
significantly in recent years.
Additionally, an expert witness’s conclusory assertion
that there was “a good possibility that [Veliu would] be
mistreated by police” did not establish that Veliu’s fear of
police abuse was objectively reasonable. Neither the
expert’s testimony nor the most recent country conditions
evidence cited well-sourced or detailed reports of police
abuse against ethnic Albanian detainees. See Jian Hui Shao
v. Mukasey, 546 F.3d 138, 160-61, 165 (2d Cir. 2008)
(finding no error in the agency’s determination that
unattributed reports of persecution alone are insufficient
to demonstrate that a fear of persecution is well-founded);
see also Lecaj v. Holder, 616 F.3d 111, 117-19 (2d Cir.
2010) (concluding that a country report’s discussion of an
isolated incident of police abuse against ethnic Albanians
in Montenegro was insufficient to demonstrate that an
applicant’s fear of persecution on account of his ethnicity
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was objectively reasonable). Furthermore, the 2007 Report
observed that police misconduct had been “substantially
reduced,” and that the government had made an effort to
recruit ethnic Albanians to the police force, which was
comprised of 17 percent ethnic Albanians.
Because the agency reasonably found that Veliu failed
to establish that he had a well-founded fear of being
subjected to disproportionately excessive penalties for
evading the Macedonian military draft, it did not err in
denying him asylum, withholding of removal, and CAT relief:
all three claims rested on the same factual predicate. See
Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition 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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