Abduloski v. Holder ( 2012 )

10-5143-ag
Abduloski v. Holder
BIA
Bain, IJ
A094 798 257
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 30th day of April, two thousand twelve.
PRESENT:
ROSEMARY S. POOLER,
GERARD E. LYNCH,
Circuit Judges.*
_______________________________________
ABDULLA ABDULOSKI,
Petitioner,
v. 10-5143-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
*
The Honorable Roger J. Miner, originally a member of
the panel, died on February 18, 2012. The two remaining
members of the panel, who are in agreement, have determined
the matter. See 28 U.S.C. 46(d); 2d. Cir. IOP E(b); United
States v. Desimone, 140 F.3d 457 (2d Cir. 1998).
FOR PETITIONER: Jennifer Oltarsh, Oltarsh &
Associates, P.C., New York, New
York.
FOR RESPONDENT: Tony West, Assistant Attorney
General, Civil Division; William C.
Peachey, Assistant Director, Office
of Immigration Litigation; Jonathan
Robbins, Trial Attorney, Office of
Immigration Litigation; 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.
Abdulla Abduloski, a native and citizen of Macedonia,
seeks review of a November 23, 2010, order of the BIA,
affirming the October 29, 2008, decision of Immigration
Judge (“IJ”) Terry Bain, which denied his application for
asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Abduloski, No.
A094 798 257 (B.I.A. Nov. 23, 2010), aff’g No. A 94 798 257
(Immig. Ct. N.Y.C. Oct. 3, 2008). 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 IJ’s and BIA’s decision. See Zaman v. Mukasey, 514 F.3d
2
233, 237 (2d Cir. 2008). The applicable standards of review
are well-established. See 8 U.S.C. § 1252(b)(4)(B); Weng v.
Holder, 562 F.3d 510, 513 (2d Cir. 2009).
The agency reasonably concluded that Abduloski failed
to satisfy his burden of proof for asylum. As the agency
found, the physical attacks, harassment, and threats that
Abduloski endured during his service in the military on
account of his Muslim religion, and during the 2005 and 2006
local and parliamentary elections on account of a political
opinion imputed to him by unidentified individuals, do not
rise to the level of persecution. We note that Abduloski
did not indicate that he sought medical attention after the
beatings, that he suffered lasting harm, or that he had been
arrested or detained during these incidents of harm. See
Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d
Cir. 2006) (stating that the harm alleged must be
sufficiently severe, rising above “mere harassment”); Liu v.
Holder, 632 F.3d 820, 822 (2d Cir. 2011) (holding that
petitioner failed to establish persecution where “he
suffered only minor bruising from an altercation with family
planning officials, which required no formal medical
attention and had no lasting physical effect,” and where
3
those who beat him did not “ha[ve] any intention of
arresting or detaining him”).
Moreover, because Abduloski testified that gangs
harassed him and his family in order to extort pension funds
from his father, and did not allege that the threats and
harassment were on account of his family’s Muslim religion
or political beliefs, the agency reasonably determined that
any harm Abduloski suffered was not on account of a
protected ground but rather the result of generalized
criminal activities, which is not a valid basis for asylum.
See 8 U.S.C. § 1101(a)(42); Melgar de Torres v. Reno, 191
F.3d 307, 314 (2d Cir. 1999) (stating that “persecution must
be on account of an enumerated ground set forth in the Act,
and general crime conditions are not a stated ground”).
The agency also reasonably determined that Abduloski
failed to establish a well-founded fear of future
persecution based on a protected ground. See 8 U.S.C.
§ 1101(a)(42). As the agency found, Abduloski’s testimony
that his parents and siblings continued to reside safely in
Macedonia undercut his argument that he has a well-founded
fear of persecution. See Melgar de Torres, 191 F.3d at 313
(suggesting that the fact that an asylum applicant’s family
4
members, who would logically fear persecution on the same
ground as the applicant, continue to reside safely in the
home country after the alien’s emigration, “cuts against
[the applicant’s] argument that [he] has a well-founded fear
of persecution”).
Accordingly, the agency reasonably denied Abduloski’s
application for asylum. Because he failed to meet the
burden of asylum, Abduloski necessarily failed to meet the
higher burden for withholding of removal, as that claim was
based 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
5