Toma v. Holder , 359 F. App'x 210 ( 2010 )

08-3462-ag
Toma v. Holder
BIA
Rohan, IJ
A099 599 253
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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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 5 th day of January, two thousand ten.
PRESENT:
JOHN M. WALKER, JR.,
GUIDO CALABRESI,
REENA RAGGI,
Circuit Judges.
_______________________________________
ALBERT TOMA, ALSO KNOWN AS BRUNO
ORNELLA,
Petitioner,
v. 08-3462-ag
NAC
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Saul C. Brown, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General, Civil Division; Cindy S.
Ferrier, Senior Litigation Counsel,
Office of Immigration Litigation;
Timothy G. Hayes, 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.
Petitioner Albert Toma, a native and citizen of
Albania, seeks review of a June 16, 2008 order of the BIA
affirming the August 23, 2006 decision of Immigration Judge
(“IJ”) Patricia A. Rohan denying his application for asylum,
withholding of removal and relief under the Convention
Against Torture (“CAT”). In re Albert Toma, No. A099 599
253 (B.I.A. Jun. 16, 2008), aff’g No. A099 599 253 (Immig.
Ct. N.Y. City Aug. 23, 2006). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
We have jurisdiction under 8 U.S.C. § 1252(a)(1)
because the denial of relief in “asylum only” proceedings is
the “functional equivalent of a removal order.” Kanacevic
v. INS, 448 F.3d 129, 134-35 (2d Cir. 2006). When, as in
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this case, the BIA affirms without addressing each aspect of
the IJ’s decision, we review the decisions of both the BIA
and the IJ. See Ming Xia Chen v. BIA, 435 F.3d 141, 144 (2d
Cir. 2006). We review the agency’s factual findings for
substantial evidence, see 8 U.S.C. § 1252(b)(4)(B); Jian Hui
Shao v. Mukasey, 546 F.3d 138, 157-58 (2d Cir. 2008), and
its legal conclusions and application of law to undisputed
fact de novo, see Salimatou Bah v. Mukasey, 529 F.3d 99, 110
(2d Cir. 2008).
I. Asylum and Withholding of Removal
Although Toma did not argue before the BIA that the IJ
erred in finding that changed country conditions in Albania
rebutted any presumption of a well-founded fear of future
persecution, because the BIA nonetheless considered the
issue, we deem it exhausted. See Xian Tuan Ye v. DHS, 446
F.3d 289, 296-97 (2d Cir. 2006).
When an applicant for asylum has been found to have
suffered past persecution, the presumption of a well-founded
fear of future persecution may be rebutted if an IJ finds
that there has been a fundamental change in circumstances
such that the applicant’s life or freedom would no longer be
threatened in the country of removal on account of one of
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the five statutory grounds. 8 C.F.R. § 1208.13(b)(1)(i)(A);
see also Hoxhallari v. Gonzales, 468 F.3d 179, 188 (2d Cir.
2006) (“[T]here is no doubt that there has been a
fundamental change in the political structure and government
of Albania, beginning in 1990. While Democrats have not
been continuously in power, the IJ's perfunctory finding of
changed conditions in Albania is adequate.”).
Here, the agency assumed Toma’s credibility and found
that, even if he had established past persecution on account
of his involvement with the Legality Movement Party, the
government successfully rebutted any presumption of a well-
founded fear by demonstrating a significant change in
country conditions. This determination is supported by
substantial evidence, namely, (1) in Albania’s 2005
election, a coalition comprising, inter alia, the Democratic
Party and the Legality Movement Party won 46 seats in
parliament; and (2) Toma’s father, who also belongs to
Legality Movement Party, has continued living peacefully in
Albania.
Toma does not challenge these findings before this
Court. Instead, he argues that, because the 2005 Country
Report discusses police violence and corruption in Albania,
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“conditions remain unsafe and dangerous . . . regardless of
the fact that the Democratic Party has formed a coalition
government and now controls a majority of seats in
Parliament.” Pet’r’s Br. at 18. Such general allegations,
however, are insufficient to establish eligibility for
asylum. See Melgar de Torres v. Reno, 191 F.3d 307, 314 n.3
(2d Cir. 1999).
Accordingly, the agency’s finding that changed country
conditions rebutted the presumption of a well-founded fear
of future persecution is supported by substantial evidence.
As Toma was unable to carry his burden for asylum, he has
necessarily failed to carry the heavier burden required for
withholding of removal. See Paul v. Gonzales, 444 F.3d 148,
155-56 (2d Cir. 2006). Because the changed country
conditions finding is dispositive, see 8 C.F.R.
§§ 1208.13(b)(1)(i)(A), 1208.16(b)(1)(1)(A), we need not
address the agency’s additional findings.
II. CAT Relief
Although Toma asserts that he also seeks review of the
denial of CAT relief, his brief confines any CAT argument to
a single sentence, which does not address the agency’s
conclusion that neither his testimony nor any other evidence
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in the record established a likelihood of torture upon
return to Albania. Accordingly, we deem any CAT challenge
waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541
n.1, 545 n.7 (2d Cir. 2005).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, 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(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
By:___________________________
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