Vukaj v. Holder ( 2012 )

11-1987-ag
Vukaj v. Holder
BIA
Balasquide, IJ
A099 927 171
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
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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 3rd day of May, two thousand twelve.
PRESENT:
PETER W. HALL,
GERARD E. LYNCH,
DENNY CHIN,
Circuit Judges.
_______________________________________
BRIKEN VUKAJ,
Petitioner,
v. 11-1987-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Charles Christophe, New York, NY.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Shelley R. Goad, Assistant
Director; Dalin R. Holyoak, Trial
Attorney, Office of Immigration
Litigation, Civil Division, 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 Briken Vukaj, a native and citizen of
Albania, seeks review of an April 18, 2011, order of the BIA
affirming the August 19, 2009, decision of Immigration Judge
(“IJ”) Javier Balasquide denying his application for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Briken Vukaj, No. A099 927
171 (B.I.A. Apr. 18, 2011), aff’g No. A099 927 171 (Immig.
Ct. N.Y. City Aug. 19, 2009). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
Under the circumstances of this case, we have reviewed
the IJ’s decision as modified by the BIA, i.e., minus the
IJ’s finding that Vukaj could relocate within Albania. See
Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522
(2d Cir. 2005). “The ‘substantial evidence’ standard of
review applies, and we uphold the IJ's factual findings if
they are supported by reasonable, substantial and probative
evidence in the record.” Yanqin Weng v. Holder, 562 F.3d
2
510, 513 (2d Cir. 2009) (internal quotation marks and
citations omitted); see also 8 U.S.C. § 1252(b)(4)(B)
(providing that “administrative findings of fact are
conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary”). “By contrast, we
review de novo questions of law and the BIA’s application of
law to undisputed fact.” Yanqin Weng, 562 F.3d at 513
(internal quotation marks and brackets omitted).
Vukaj argues that he will be persecuted in Albania
because his father, who supported the Democratic Party, was
the subject of political violence in 1999 and 2005, and
because Vukaj supports (although he is not a member of) the
Democratic Party.
As the agency found, Vukaj’s claim was undermined by
the fact that his brothers and father have remained unharmed
in Albania since 2005. See Melgar de Torres v. Reno, 191
F.3d 307, 313 (2d Cir. 1999) (finding that an asylum
applicant’s claim of a well-founded fear of persecution was
diminished because the applicant’s mother and daughters
continued to live in her native country unharmed). Contrary
to Vukaj’s arguments, the fact his brothers were younger
than he is, or that his father received threats after Vukaj
3
left the country, does not establish that the IJ erred in
drawing inferences from the fact that Vukaj’s brothers and
father remain unharmed.
Additionally, the record supports the agency’s
conclusion that while political violence against supporters
of the Democratic Party has not completely disappeared, it
has been reduced since the Democratic Party came to power in
2005. See Hoxhallari v. Gonzales, 468 F.3d 179, 185-87 (2d
Cir. 2006) (per curiam) (holding that when making findings
that country conditions have changed in a country, like
Albania, which is subject to a large proportion of asylum
claims, the agency “need not enter specific findings
premised on record evidence”).1 The agency was not
compelled to accept Vukaj’s expert witness’s conclusions
regarding political violence in Albania after the 2005
election. See Siewe v. Gonzales, 480 F.3d 160, 167-68 (2d
Cir. 2007). Accordingly, we find no error in the agency’s
conclusion that Vukaj was not eligible for asylum because he
did not demonstrate a well-founded fear of future
1
Contrary to the implication in the BIA’s citation
of Hoxhallari, we did not in that decision describe a
“political transformation” in Albania since the 2005
election of the Democratic Party. Rather, Hoxhallari
commented on changes in Albania between the fall of
communism and 2001.
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persecution. See Ramsameachire v. Ashcroft, 357 F.3d 169,
178 (2d Cir. 2004).
Because Vukaj’s claim for withholding of removal and
CAT relief related to the same factual predicate, the agency
did not err in denying both forms of relief. See Paul v.
Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, petitioner’s
pending motion for a stay of removal is DENIED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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