Ndrecaj v. Holder , 445 F. App'x 428 ( 2011 )

08-5888
Ndrecaj v. Holder
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 15th day of November, two thousand eleven.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 RICHARD C. WESLEY,
9 Circuit Judge,
10 RICHARD J. SULLIVAN,*
11 District Judge.
12
13 - - - - - - - - - - - - - - - - - - - -X
14 GJON NDRECAJ, LUMNIJE NDRECAJ,
15 RIKARDO NDRECAJ, KRISTINA NDRECAJ,
16 AND ROBERT NDRECAJ,
17 Petitioners,
18
19 -v.- 08-5888
20
21 ERIC H. HOLDER, JR., UNITED STATES
22 ATTORNEY GENERAL,
23 Respondent.
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*
The Honorable Richard J. Sullivan, of the United
States District Court for the Southern District of New York,
sitting by designation.
1
1 FOR PETITIONERS: Gjon Ndrecaj, pro se, Bronx, NY.
2
3 FOR RESPONDENT: Tony West, Assistant Attorney General,
4 Civil Division; Jennifer P. Levings,
5 Senior Litigation Counsel; Tim Ramnitz,
6 Attorney, Office of Immigration
7 Litigation, United States Department of
8 Justice, Washington, D.C.
9
10 UPON DUE CONSIDERATION of this petition for review of a
11 Board of Immigration Appeals (“BIA”) decision, IT IS HEREBY
12 ORDERED, ADJUDGED AND DECREED that the petition for review
13 is DENIED.
14
15
16 Petitioners, natives of the former Yugoslavia and
17 former residents of Kosovo, seek review of a November 4,
18 2008, decision of the BIA, affirming the December 3, 2006,
19 decision of Immigration Judge (“IJ”) Patricia A. Rohan,
20 which denied their applications for asylum, withholding of
21 removal, and relief under the Convention Against Torture
22 (“CAT”). In re Ndrecaj, Nos. A095 467 644/689/690/691/692
23 (B.I.A. Nov. 4, 2008), aff’g Nos. A095 467
24 644/689/690/691/692 (Immig. Ct. N.Y. City Dec. 3, 2006). We
25 assume the parties’ familiarity with the underlying facts,
26 the procedural history, and the issues presented for review.
27
28 When, as is the case here, “the BIA does not expressly
29 ‘adopt’ the IJ’s decision, but ‘its brief opinion closely
30 tracks the IJ’s reasoning,’ this Court may consider both the
31 IJ’s and BIA’s opinions ‘for the sake of completeness.’”
32 Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008) (per
33 curiam) (internal citations omitted).
34
35 “We review the factual findings of the BIA and IJ for
36 substantial evidence.” Islam v. Gonzales, 469 F.3d 53, 55
37 (2d Cir. 2006) (citing 8 U.S.C. § 1252(b)(4)(B)). “[W]e
38 review de novo the question of law regarding what evidence
39 will suffice to carry an asylum applicant’s burden of
40 proof.” Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 146 n.2 (2d
41 Cir. 2003), overruled in part on other grounds by Shi Liang
42 Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007)
43 (en banc).
44
2
1 To be eligible for a discretionary grant of asylum, an
2 applicant must be “unable or unwilling to return to . . .
3 [his or her country of nationality] because of persecution
4 or a well-founded fear of persecution on account of race,
5 religion, nationality, membership in a particular social
6 group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A).
7 “[A]n applicant must present credible, specific, and
8 detailed evidence--whether by her own testimony or
9 corroborating proof--that a reasonable person in her
10 position would fear persecution if returned to her native
11 country.” Abankway v. INS, 185 F.3d 18, 22 (2d Cir. 1999).
12
13 The IJ and BIA determined that Petitioners presented
14 insufficient evidence to substantiate a well-founded fear of
15 persecution. After a de novo review, we agree.
16
17 Petitioners argue that they will be persecuted because
18 of Gjon Ndrecaj’s religion, political affiliation, and
19 friendship with ethnic Serbians, and because Lumnije Ndrecaj
20 provided the Serbian army with food under threat of force.
21 The IJ found that Albanians who befriended Serbians or were
22 forced to feed the Serbian army do not face persecution.
23 These findings are supported by substantial evidence. The
24 IJ found that the Democratic League of Kosovo has garnered
25 the most votes in all four elections since 1999 and thus did
26 not err in concluding that membership in this party will not
27 result in persecution. Ndrecaj points to no evidence that
28 Catholics are persecuted.
29
30 Gjon Ndrecaj testified that in 2001, an acquaintance
31 informed him that he was not welcome in his country.
32 However, “‘vague threats’ relayed by family and friends
33 [are] insufficient to support [an] asylum application.”
34 Guan Shan Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 70 (2d
35 Cir. 2002) (quoting Aguilar-Solis v. INS, 168 F.3d 565, 573
36 (1st Cir. 1999)).
37
38 Petitioners argue that they will be persecuted because
39 Gjon and Rikardo Ndrecaj refused to serve in the Kosovo
40 Liberation Army and cite Amnesty International reports that
41 were published in 2000 and 2003. Because of the time
42 elapsed since these publications and the IJ findings
43 concerning the current conditions in Kosovo, Petitioners
44 have not established a well-founded fear of persecution.
45
3
1 Because Petitioners have failed to present sufficient
2 evidence of a well-founded fear, Petitioners also are
3 ineligible for withholding of removal, which requires a
4 “more stringent” burden of proof, Gomez v. INS, 947 F.2d
5 660, 665 (2d Cir. 1991), or relief under CAT, which requires
6 proof by a preponderance of the evidence that if removed,
7 the applicants will be tortured. 8 C.F.R. § 1208.16(c)(2).
8
9 Petitioners contend that remand is necessary for the
10 BIA to determine their nationality and consider changes that
11 occurred in Serbia Montenegro between the IJ decision in
12 2006 and the BIA decision in 2008. Petitioners did not make
13 these arguments to the BIA and thus failed to
14 administratively exhaust them. See Lin Zhong v. U.S. Dep’t
15 of Justice, 480 F.3d 104, 122 (2d Cir. 2007).
16
17 In any event, “[w]e presume that the agency will modify
18 the order of removal to specify the country to which
19 [Petitioners] are to be removed.” Sadiki v. Mukasey, 306 F.
20 App’x 675, 677 n.1 (2d Cir. 2009). If Petitioners believe
21 that changes in circumstances warrant a well-founded fear of
22 persecution, their recourse is a motion to reopen with the
23 BIA. See 8 C.F.R. § 1003.2(c).
24
25 Finding no merit in Petitioners’ remaining arguments,
26 we hereby DENY the petition for review.
27
28
29 FOR THE COURT:
30 CATHERINE O’HAGAN WOLFE, CLERK
31
4