Ukshini v. Holder , 440 F. App'x 26 ( 2011 )

10-3721-ag
Ukshini v. Holder
BIA
Abrams, IJ
A088 173 727
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 11th day of October, two thousand eleven.
5
6 PRESENT:
7 JON O. NEWMAN,
8 JOSÉ A. CABRANES,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _______________________________________
12
13 FEHMI UKSHINI,
14
15 Petitioner,
16
17 v. 10-3721-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONER: Andrew P. Johnson, Law Offices of Andrew
25 P. Johnson, New York, New York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney General;
28 William C. Peachey, Assistant Director;
29 Mona Maria Yousif, Trial Attorney, Office
30 of Immigration Litigation, Civil
31 Division, United States Department of
32 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.
5 Petitioner Fehmi Ukshini, a native and citizen of the
6 former Yugoslavia, seeks review of an August 19, 2010, order
7 of the BIA affirming the October 20, 2008, decision of
8 Immigration Judge (“IJ”) Steven R. Abrams denying his
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Fehmi
11 Ukshini, No. A088 173 727 (B.I.A. Aug. 19, 2010), aff’g No.
12 A088 173 727 (Immig. Ct. N.Y. City Oct. 20, 2008). We
13 assume the parties’ familiarity with the underlying facts
14 and procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 the decision of the IJ as supplemented by the BIA. See Yan
17 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well established. See 8
19 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,
20 513 (2d Cir. 2009).
21 The agency reasonably found that Ukshini’s
22 corroborating evidence did not establish that his political
23 opinion was a “central reason” that he was attacked. See 8
2
1 U.S.C. § 1158(b)(1)(B)(i). First, contrary to Ukshini’s
2 argument, because the IJ explicitly considered his
3 corroborating evidence, a reasonable fact-finder would not
4 be compelled to conclude that the agency ignored any
5 material evidence. See Xiao Ji Chen v. Dep't of Justice, 471
6 F.3d 315, 337 n.17 (2d Cir. 2006) (presuming that the agency
7 “has taken into account all of the evidence before [it],
8 unless the record compellingly suggests otherwise.”).
9 Second, the agency’s finding was an adequate ground for the
10 denial of relief even in the absence of an adverse
11 credibility finding. See Chuilu Liu v. Holder, 575 F.3d 193,
12 198 n.5 (2d Cir. 2009) (“[A] failure to corroborate can
13 suffice, without more, to support a finding that an alien
14 has not met his burden of proof . . .”); see also 8 U.S.C.
15 § 1158(b)(1)(B)(ii). Third, the agency reasonably found that
16 Ukshini’s medical documents, which establish an attack but
17 not a motive, and his party membership card, which lists his
18 personal information but no specific political activity,
19 were insufficient corroborating evidence to establish that
20 he was attacked on account of his political opinion. See
21 Xiao Ji Chen, 471 F.3d at 342 (“[T]he weight to afford to
22 such evidence ‘lie[s] largely’ within the discretion of the
23 IJ.”) (internal citation omitted). Therefore, because
3
1 Ukshini’s corroborating evidence failed to demonstrate his
2 political activity, the agency reasonably concluded that,
3 without further corroborating evidence, he had failed to
4 establish that he had been persecuted on the basis of his
5 political opinion. See Chuilu Liu, 575 F.3d at 198 n.5; see
6 also Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 (2d Cir.
7 2005) (citing INS v. Elias-Zacarias, 502 U.S. 478, 483
8 (1992)) (“The applicant must also show, through direct or
9 circumstantial evidence, that the persecutor’s motive to
10 persecute arises from the applicant’s political belief.”).
11 Because Ukshini was unable to show past persecution or
12 a well-founded fear of future persecution on account of a
13 protected ground, as needed to make out an asylum claim, and
14 because his claim for withholding of removal was based on
15 the same factual predicate as his asylum claim, he was
16 necessarily unable to meet the higher standard required to
17 succeed on a claim for withholding of removal. See Paul v.
18 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Gomez v. INS,
19 947 F.2d 660, 665 (2d Cir. 1991); see also 8 U.S.C.
20 §§ 1231(b)(3)(C), 1229a(c)(4)(B).
21
22
4
1 The agency also reasonably denied Ukshini’s application
2 for CAT relief because Ukshini did not establish that he
3 would be tortured at “the instigation of or with the consent
4 or acquiescence of a public official or other person acting
5 in an official capacity.” 8 C.F.R. § 1208.18(a)(1). The
6 record indicates that Ukshini’s attacker was arrested for
7 his 2006 attack on Ukshini, and that the Democratic League
8 of Kosovo is a controlling coalition member of the
9 government. Because the government of Kosovo has previously
10 punished Ukshini’s attacker, the agency reasonably concluded
11 that there was insufficient evidence that public officials
12 in Kosovo would breach their legal responsibility to
13 intervene to prevent such activity. See Khouzam v. Ashcroft,
14 361 F.3d 161, 171 (2d Cir. 2004) (“[T]orture requires only
15 that government officials know of or remain willfully blind
16 to an act and thereafter breach their legal responsibility
17 to prevent it.”).
18 For the foregoing reasons, the petition for review is
19 DENIED. As we have completed our review, any stay of
20 removal that the Court previously granted in this petition
21 is VACATED, and any pending motion for a stay of removal in
22 this petition is DISMISSED as moot. Any pending request for
5
1 oral argument in this petition is DENIED in accordance with
2 Federal Rule of Appellate Procedure 34(a)(2), and Second
3 Circuit Local Rule 34.1(b).
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
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