Latifaj v. Holder ( 2012 )

10-2706-ag BIA
Latifaj v. Holder Bukszpan IJ
A089 252 372
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 29th day of May, two thousand twelve.
5
6 PRESENT:
7 José A. Cabranes,
8 Debra Ann Livingston,
9 Gerard E. Lynch,
10 Circuit Judges.
11 ______________________________________
12
13 MUSTAF LATIFAJ,
14 Petitioner,
15
16 v. 10-2706-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Joshua Bardavid, New York, N.Y.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Blair T. O’Connor,
27 Assistant Director; Remi Adalemo,
28 Attorney, Office of Immigration
29 Litigation, United States Department
30 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.
5 Mustaf Latifaj, a native of the former Yugoslavia and a
6 citizen of Serbia, seeks review of a June 29, 2010, order of
7 the BIA vacating the June 19, 2008, decision of Immigration
8 Judge (“IJ”) Joanna Miller Bukszpan, which granted Latifaj’s
9 application for asylum. In re Mustaf Latifaj, No. A089 252
10 372 (B.I.A. June 29, 2010), rev’g No. A089 252 372 (Immig.
11 Ct. N.Y. City June 19, 2008). We assume the parties’
12 familiarity with the underlying facts and procedural history
13 in this case.
14 Under the circumstances of this case, we have reviewed
15 only the decision of the BIA. See Yan Chen v. Gonzales, 417
16 F.3d 268, 271 (2d Cir. 2005). The applicable standards of
17 review are well-established. See Yanqin Weng v. Holder, 562
18 F.3d 510, 513 (2d Cir. 2009). We address only Latifaj’s
19 challenge to the BIA’s decision regarding whether he has a
20 well-founded fear of persecution. See Yueqing Zhang v.
21 Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).
22 The BIA must review the factual findings of the IJ for
23 clear error, see 8 C.F.R. § 1003.1(d)(3)(i), rejecting a
2
1 factual finding only if it “is left with the definite and
2 firm conviction that a mistake has been committed.” Matter
3 of R-S-H-, 23 I. & N. Dec. 629, 637 (BIA 2003) (quoting
4 United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
5 The BIA reviews the IJ’s findings regarding whether any harm
6 an asylum applicant may suffer rises to the level of
7 persecution and whether an applicant’s fear of persecution
8 is objectively reasonable de novo. See 8 C.F.R
9 § 1003.1(d)(3)(ii); Hui Lin Huang v. Holder, No. 10-1263-ag,
10 2012 WL 10033506 *1, *4 (2d Cir. Mar. 27, 2012); Mirzoyan v.
11 Gonzales, 457 F.3d 217, 220 (2d Cir. 2006) (“The IJ
12 determined, however, that . . . the facts did not meet the
13 legal definition of persecution in the INA. This is a mixed
14 question of law and fact, which we review de novo.”).
15 After summarizing Latifaj’s testimony and concluding
16 that he was credible, the IJ made the following findings:
17 (1) conditions in Kosovo were “unsettled”; (2) the
18 organization which threatened Latifaj was on the U.S. State
19 Department terrorist list and could not be controlled by the
20 government; and (3) there was at least a ten percent chance
21 that Latifaj “would have problems if he were to return to
22 Kosovo.” Based on those findings, the IJ reached the legal
23 conclusion that Latifaj had a well-founded fear of future
24 persecution on account of political opinion.
3
1 The BIA did not explicitly address the IJ’s statement
2 that there was a reasonable possibility that Latifaj “would
3 have problems,” but instead explained that Latifaj “failed
4 to establish that a reasonable person in his circumstances
5 would fear persecution upon return to Serbia based on any
6 ground protected under the Act . . . [because he] did not
7 establish that he would be targeted for persecution by the
8 [terrorist organization].” The BIA did not make any new
9 findings of fact, as its statement that it was unclear who
10 was making the telephone calls to Latifaj’s family and what
11 the threats in those calls entailed was a summary of
12 Latifaj’s own testimony. See Belortaja v. Gonzales, 484
13 F.3d 619, 625 (2d Cir. 2007) (8 C.F.R. § 1003.1(d)(3)(iv)
14 was intended to restrict the introduction of new evidence
15 before the BIA, “not the reevaluation of evidence obtained
16 by the IJ previously”). Cf. Padmore v. Holder, 609 F.3d 62,
17 68 (2d Cir. 2010) (concluding that the BIA exceeded its
18 authority when “the BIA decided to reverse the IJ . . .
19 based on disputed material facts with respect to which the
20 IJ reached no resolution”). See also Lin Zhong v. U.S.
21 Dept. of Justice, 480 F.3d 104, 117 (2d Cir. 2007); Matadin
22 v. Mukasey, 546 F.3d 85 (2d Cir. 2008) (“Questions of law,
4
1 including what quantum of evidence will suffice to discharge
2 an applicant’s burden of proof, are reviewed de novo.”).
3 Moreover, as Latifaj failed to establish that the
4 telephone calls his family continued to receive after he
5 left Serbia were from the AKSH, or that the calls were
6 threatening, the agency did not err in finding that his fear
7 of persecution was not objectively reasonable. See Jian
8 Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005)
9 (concluding that a fear is not objectively reasonable if it
10 lacks “solid support” in the record and is merely
11 “speculative at best”). Additionally, it was not improper
12 for the agency to find that the objective reasonableness of
13 Latifaj’s fear of future persecution was diminished because
14 his family remained in Serbia unharmed. See Melgar de
15 Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999)
16 (concluding that where an asylum applicant’s family
17 continued to live in petitioner’s native country, his claim
18 of a well-founded fear was diminished).
19 Accordingly, because the BIA did not make independent
20 fact findings or find any facts contrary to those found by
21 the IJ, and explained why the evidence was insufficient to
22 demonstrate an objectively reasonable well-founded fear, it
23 did not err in denying Latifaj’s application for asylum.
5
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, the pending motion
3 for a stay of removal in this petition is DISMISSED as moot.
4 Petitioner’s request for oral argument in this petition is
5 DENIED in accordance with Federal Rule of Appellate
6 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
7
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe, Clerk
10
6