Volaj v. Holder ( 2010 )

09-3098-ag
Volaj v. Holder
BIA
Abrams, IJ
A099 602 197
A099 602 198
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.
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 1 st day of July, two thousand ten.
PRESENT:
GUIDO CALABRESI,
ROBERT A. KATZMANN,
PETER W. HALL,
Circuit Judges.
_______________________________________
HANE VOLAJ, ARTAN VOLAJ,
Petitioners,
v. 09-3098-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONERS: Linda L. Foster, Fresh Meadows, N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Ernesto H. Molina, Jr.,
Assistant Director; Dana M.
Camilleri, 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 GRANTED.
Hane Volaj and her son, Artan Volaj, 1 natives and
citizens of Albania, seek review of a June 22, 2009, order
of the BIA affirming the September 20, 2007, decision of
Immigration Judge (“IJ”) Steven R. Abrams, which denied her
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Hane
Volaj, Artan Volaj, Nos. A097 602 197/198 (B.I.A. June 22,
2009), aff’g Nos. A097 602 197/198 (Immig. Ct. N.Y. City
Sept. 20, 2007). We assume the parties’ familiarity with
the underlying facts and procedural history in this case.
Under the circumstances of this case, we review the
IJ’s decision as modified and supplemented by the BIA’s
decision. See Xue Hong Yang v. U.S. Dep’t of Justice, 426
F.3d 520, 522 (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d
268, 271 (2d Cir. 2005). The applicable standards of review
1
Artan Volaj was a derivative beneficiary of his
mother Hane Volaj’s asylum application. Thus, this
summary order will refer to the lead Petitioner, Hane
Volaj, throughout.
2
are well established. See 8 U.S.C. § 1252(b)(4)(B); see also
Manzur v. U.S. Dep't of Homeland Sec., 494 F.3d 281, 289 (2d
Cir. 2007).
Volaj argues that the BIA misapplied our holding in
Yeuqing Zhang v. Gonzales, 426 F.3d 540, 547-48 (2d Cir.
2005) in finding that her husband’s whistle-blowing
activities did not constitute an expression of political
opinion for purposes of qualifying as a refugee under
8 U.S.C. § 1101(a)(42). In Yeuqing Zhang, we held that,
“[w]here the dispute is such that the asylum seeker did not
merely seek economic advantage but mounted a challenge to
the legitimacy and authority of the ruling regime itself,
and where the applicant can show that this ‘political
threat’ is the motive for the persecution perpetrated or
feared, the applicant can meet the definition of a
‘refugee.’” 436 F.2d at 547. As Volaj correctly points out,
the 2006 State Department Country Report on Albania
indicates that government corruption is a widespread,
systematic problem that is rampant in Albania. Given the
standard under Yeuqing Zhang, and the evidence of widespread
corruption, she persuasively argues that her husband’s
letter to the Prime Minister challenging “the policies and
practices of the Kelmend communal government from 1991
3
through 1999,” was “an inherently political act.” Indeed,
Volaj’s husband’s letter included accusations of
misappropriation of government aid money, election
tampering, awarding government jobs to unqualified
individuals, permitting the commune’s phone and bus system
to fall into disrepair, and demanding bribes from patients
before treating them at the local hospital. These
complaints were directed generally at the communal
government and, in addition, specifically mentioned the head
of the commune, Rush Dragu. Thus, contrary to the agency’s
conclusion, Volaj’s husband’s letter challenged both the
governing institution–the commune of Kelmend–and Rush Dragu
individually. Consequently, the letter could be considered
inherently political. See Yueqing Zhang, 426 F.3d at 547-
48.
The BIA’s only support for its assertion that, under
the standard in Yeuqing Zhang, Volaj’s husband’s letter was
not politically motivated is that it “did not mention
political parties.” However, under Yeuqing Zhang, the
failure to mention political parties is not dispositive of
whether a statement is inherently political. See Yueqing
Zhang, 426 F.3d at 547-48; see also Rodas Castro v. Holder,
4
597 F.3d 93, 102 (2d Cir. 2010) (finding that the applicant
presented substantial evidence supporting his contention
“that his reporting of official corruption was inherently
political” given the overall context of corruption in
Guatemala at that time, including the rise to power of a
regime that revived many of the corrupt aspects of an
earlier era). Therefore, remand is required for the agency
to consider more fully whether the letter Volaj’s husband
wrote criticizing the government corruption in the commune
constituted a political act and whether Volaj was persecuted
as a result. See Gonzales v. Thomas, 547 U.S. 183, 186-87
(2006).
Finally, Volaj does not challenge the agency’s denial
of her CAT claim before this Court and has therefore waived
any such challenge. See Gui Yin Liu v. INS, 508 F.3d 716,
723 n.6 (2d Cir. 2007).
For the foregoing reasons, the petition for review is
GRANTED and the case REMANDED for further proceedings
consistent with this order. As we have completed our
review, the pending motion for a stay of removal in this
petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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