Kacupaj v. Holder , 396 F. App'x 756 ( 2010 )

09-4546-ag
Kacupaj v. Holder
BIA
Straus, IJ
A077 721 820
A095 476 782
A095 476 783
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 19th day of October, two thousand ten.
PRESENT:
JON O. NEWMAN,
RICHARD C. WESLEY,
PETER W. HALL,
Circuit Judges.
_____________________________________
ARDIAN KACUPAJ, AFERDITA KACUPAJ,
a.k.a. ALFADIDA KACUPAJ, EUGERT
KACUPAJ a.k.a. UBER KACUPAJ,
Petitioners,
v. 09-4546-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONERS: Saul C. Brown, New York, New York
FOR RESPONDENT: Tony West, Assistant Attorney
General; Shelley R. Goad, Assistant
Director; Russel J.E. Verby, Senior
Litigation Counsel, 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
DENIED.
Petitioners, natives and citizens of Albania, seek review of
an October 7, 2009, order of the BIA, affirming the July 25,
2008, decision of Immigration Judge (“IJ”) Michael W. Straus,
which denied their application for asylum and withholding of
removal. In re Kacupaj, Nos. A077 721 820, A095 476 782/783
(B.I.A. Oct. 7, 2009), aff’g Nos. Nos. A077 721 820, A095 476
782/783 (Immig. Ct. Hartford July 25, 2008). We assume the
parties’ familiarity with the underlying facts and procedural
history in this case.1
As an initial matter, we review the denial of relief in
“asylum-only” proceedings under 8 U.S.C. § 1252(a)(1), because
the denial of relief in these circumstances is the functional
equivalent of a removal order. See Kanacevic v. INS, 448 F.3d
129, 134 (2d Cir. 2006). Under the circumstances of this case,
we consider both the IJ’s and the BIA’s opinions “for the sake of
completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
2008). The applicable standards of review are well-established.
See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008);
Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.
2007).
We find no error in the agency’s determination that,
although he experienced past persecution, Kacupaj no longer has a
well-founded fear of persecution in Albania due to changed
country conditions. 8 C.F.R. § 1208.13(b)(1). The agency
supported its finding of a fundamental change in circumstances in
Albania, stating that the Democratic Party had returned to power
in 2005, a fact we have noted as well, see Latifi v. Gonzales,
430 F.3d 103, 106 n.1 (2d Cir. 2005). The agency also reasonably
relied on Department of State reports, noting that according to
the U.S. Department of State’s Country Report on Human Rights
Practices in Albania for 2007, the Albanian government “generally
1
Because Ardian Kacupaj was the lead applicant, we refer to him
as “Kacupaj.”
2
respected the human rights of its citizens.” See Xiao Ji Chen v.
U.S. Dep’t of Justice, 471 F.3d 315, 341-42 (holding that the
agency did not err in its reliance on State Department reports
because they are “usually the best source of information on
country conditions”) (internal citations omitted). The IJ also
considered the testimony of Petitioners’ expert, Dr. Bernd J.
Fischer, acknowledging that there was ongoing political turmoil
in Albania, but noting Dr. Fischer’s testimony that Shkoder, the
area of Albania in which Kacupaj lived, was a stronghold of the
Democratic Party. Moreover, Dr. Fischer testified that violence
in Albania decreased since 2000, when Kacupaj suffered
persecution for his activities on behalf of the Democratic Party.
Accordingly, the agency did not err in finding that a fundamental
change in circumstances in Albania rebutted Kacupaj’s presumption
of a well-founded fear of persecution. See Hoxhallari v.
Gonzales, 468 F.3d 179, 187 (2d Cir. 2006); Niang v. Mukasey, 511
F.3d 138, 149 (2d Cir. 2007). Likewise, the agency did not err
in denying withholding of removal, insofar as that claim was
based on the same alleged facts as Petitioners’ asylum claim.
See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
Absent a well-founded fear of future persecution, the agency
may grant humanitarian asylum based on the severity of past
persecution. See 8 C.F.R. § 1208.13(b)(1)(iii)(A). Here, we
find no abuse of discretion in the agency’s conclusion that
Kacupaj did not endure the type of atrocious persecution for
which humanitarian asylum is reserved. See Mirzoyan v. Gonzales,
457 F.3d 217, 220 (2d Cir. 2006) (stating that humanitarian
asylum is reserved for “certain rare cases”).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument
in this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
3