Lucaj v. Holder , 490 F. App'x 358 ( 2012 )

11-1756-ag
Lucaj v. Holder
BIA
A070 893 833
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 20th day of July, two thousand twelve.
5
6 PRESENT:
7 RALPH K. WINTER,
8 JOSÉ A. CABRANES,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 GJERGJ LUCAJ,
14 Petitioner,
15
16 v. 11-1756
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23
24 FOR PETITIONER: Michael P. DiRaimondo; Marialaina L.
25 Masi; Stacy A. Huber, DiRaimondo & Masi,
26 LLP, Melville, New York.
27
28 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
29 Attorney General; Stephen J. Flynn,
30 Assistant Director; Julie M. Iversen,
31 Attorney, Office of Immigration
32 Litigation, Civil Division, United States
33 Department of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED in part and GRANTED in part.
5 Petitioner Gjergj Lucaj, a native of the former
6 Yugoslavia and citizen of Montenegro, seeks review of an
7 April 20, 2011, order of the BIA denying his motion to
8 reopen. In re Gjergj Lucaj, No. A070 893 833 (B.I.A. Apr.
9 20, 2011). We assume the parties’ familiarity with the
10 underlying facts and procedural history in this case. We
11 review the agency’s denial of a motion to reopen for abuse
12 of discretion. Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.
13 2005) (per curiam).
14 Because Lucaj’s motion to reopen was filed more than
15 ninety days after the BIA’s final order of removal, he
16 argued before the BIA that he was exempt from the time
17 limits on motions to reopen because he demonstrated changed
18 country conditions affecting his eligibility for asylum.
19 See 8 U.S.C. § 1229a(c)(7)(C)(i), (ii); 8 C.F.R.
20 § 1003.2(c)(2), (3)(ii). Accordingly, the BIA could have
21 denied his motion as untimely if it concluded that he did
22 not demonstrate a material change in country conditions,
2
1 Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir. 2005), or
2 if he did not establish his prima facie eligibility for
3 relief, INS v. Abudu, 485 U.S. 94, 104-05 (1988); see
4 Poradisova, 420 F.3d at 78.
5 Lucaj presented the BIA with three types of evidence to
6 show a change in country conditions: (1) newspaper articles
7 about the arrest and alleged torture of 14 Albanians accused
8 of terrorism, including Lucaj’s cousin; (2) photographs
9 demonstrating that Lucaj was involved in political protests
10 in the United States against these arrests; and (3)
11 affidavits from experts stating that ethnic tensions in
12 Montenegro have worsened and Lucaj may be prosecuted as a
13 draft-evader if he returns.
14 The BIA did not abuse its discretion in finding that
15 the first two sets of evidence did not establish changed
16 country conditions. We have previously determined that
17 evidence about the treatment of Albanians accused of
18 terrorism does not demonstrate the persecution of Albanians
19 in general. Lecaj v. Holder, 616 F.3d 111, 117–19 (2d Cir.
20 2010) (stating that “single incident of police abuse” shows
21 only “animus against suspected terrorists” and not
22 discrimination against an ethnic minority or religious
3
1 group). Accordingly, the BIA reasonably concluded that,
2 while Lucaj’s cousin was allegedly one of those arrested,
3 this incident did not establish a material change in country
4 conditions, because Lucaj did not present any evidence to
5 show that he would be treated as a terrorism suspect.
6 Similarly, the BIA reasonably concluded that Lucaj’s
7 involvement in protests in the United States did not
8 constitute a material change in conditions in Montenegro.
9 See Wei Guang Wang v. BIA, 437 F.3d 270, 273-74 (2d Cir.
10 2006) (concluding that changed personal circumstances in
11 United States do not constitute changed circumstances
12 arising in country of nationality).
13 However, the BIA abused its discretion in its treatment
14 of Lucaj’s evidence regarding his potential prosecution for
15 draft evasion. Contrary to Lucaj’s argument, the BIA did
16 not deny him due process by failing to consider the reports
17 from experts describing conditions in Montenegro: the BIA
18 explicitly stated that it had considered those reports.
19 But, without directly addressing whether Lucaj established
20 changed country conditions relating to the prosecution of
21 draft evaders or a prima facie claim that he would be
22 prosecuted, the BIA stated that his evidence did not
4
1 establish a material change because, if Lucaj was prosecuted
2 for evading the draft, he failed to show that such a
3 prosecution would be a disproportionately severe punishment
4 on account of a protected ground and constitute persecution.
5 This was a misstatement of the law.
6 Under our decision in Islami v. Gonzales, 412 F.3d 3917 (2d Cir. 2005), overruled in part on other grounds by Shi
8 Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305 (2d
9 Cir. 2007), the prosecution of an ethnic Albanian, like
10 Lucaj, who refused to serve in the Yugoslavian military
11 could constitute persecution and form the basis of an asylum
12 claim because the Yugoslavian army would likely have
13 required Lucaj to engage in military campaigns, widely
14 condemned by the international community, against his fellow
15 Albanians. Id. at 396-97. Accordingly, Lucaj was not
16 required to show that any prosecution of him for draft
17 evasion would be disproportionately severe: any prosecution
18 for draft evasion could count as persecution and form the
19 basis of an asylum claim. Id. The BIA therefore abused its
20 discretion by basing its conclusion that Lucaj’s evidence
21 about the treatment of draft evaders did not establish a
22 material changed in country conditions on an error of law.
5
1 We therefore grant the petition for review in part and
2 vacate the agency’s conclusion that Lucaj did not establish
3 a change in country conditions relating to the prosecution
4 of draft evaders in Montenegro. The BIA’s decision did not
5 address Lucaj’s arguments that there was a change in
6 conditions for draft evaders or whether he established a
7 prima facie claim that he would actually be prosecuted for
8 draft evasion. We do not now express any opinion on those
9 issues or the ultimate outcome of Lucaj’s motion to reopen.
10 For the foregoing reasons, the petition for review is
11 DENIED in part and GRANTED in part and the case is REMANDED
12 to the BIA for proceedings consistent with this decision.
13 As we have completed our review, the stay of removal that
14 the Court previously granted in this petition is VACATED.
15 Any pending request for oral argument in this petition is
16 DENIED in accordance with Federal Rule of Appellate
17 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
6