Gjoni v. Holder ( 2010 )

08-5768-ag (L); 09-3455-ag (Con)
Gjoni v. Holder
BIA
Vomacka, IJ
A077 699 879
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 20 th day of May, two thousand ten.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 DEBRA ANN LIVINGSTON,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _______________________________________
12
13 JOLANDA GJONI,
14
15 Petitioner,
16
17 v. 08-5768-ag (L);
18 09-3455-ag (Con)
19 NAC
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL,
22
23 Respondent.
24 ______________________________________
25
26 FOR PETITIONER: Kai W. De Graaf, New York, New York.
27
28 FOR RESPONDENT: Tony West, Assistant Attorney
29 General, Civil Division; Aviva L.
30 Poczter, Senior Litigation Counsel;
31 Jesse Lloyd Busen, Office of
32 Immigration Litigation, Civil
33 Division, U.S. Department of
34 Justice, Washington, D.C.
35
1 UPON DUE CONSIDERATION of these petitions for review of
2 two Board of Immigration Appeals (“BIA”) decisions, it is
3 hereby ORDERED, ADJUDGED, AND DECREED, that these petitions
4 for review are DENIED.
5 Petitioner, Jolanda Gjoni, a native and citizen of
6 Albania, seeks review of: (1) an October 28, 2008, order of
7 the BIA affirming the January 5, 2007 decision of
8 Immigration Judge (“IJ”) Alan Vomacka denying petitioner’s
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”), In re Jolanda
11 Gjoni, No. A 077 699 879 (B.I.A. Oct. 28, 2008), aff’g No.
12 A 077 699 879 (Immig. Ct. N.Y. City Jan. 5, 2007); and (2) a
13 July 24, 2009, order of the BIA, denying her motion to
14 reopen, In re Jolanda Gjoni, No. A 077 699 879 (B.I.A. July
15 24, 2009). We assume the parties’ familiarity with the
16 underlying facts and procedural history of the case.
17 I. Docket No. 08-5768-ag (L): Asylum, Withholding of
18 Removal, and CAT Relief
19 Under the circumstances of this case, we review the
20 IJ’s decision as modified by the BIA decision, i.e., minus
21 the IJ’s adverse credibility determination. See Xue Hong
22 Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.
2
1 2005). The applicable standards of review are well-
2 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
3 Holder, 562 F.3d 510, 513 (2d Cir. 2009).
4 A. Past Persecution
5 The IJ reasonably found that Gjoni’s past experiences
6 did not rise to the level of persecution. Although Gjoni
7 argues that the BIA failed to consider evidence that her
8 relatives were murdered on account of their political
9 opinion, even assuming that there was a nexus, it is well-
10 settled that an applicant cannot establish past persecution
11 by virtue of harm to a relative. Tao Jiang v. Gonzales, 500
12 F.3d 137, 141 (2d Cir. 2007); see also Shi Liang Lin v. U.S.
13 Dep’t of Justice, 494 F.3d 296, 308 (2d Cir. 2007) (“[T]he
14 statutory scheme unambiguously dictates that applicants can
15 become candidates for asylum relief only based on
16 persecution that they themselves have suffered or must
17 suffer.”).
18 To the extent Gjoni argues that the agency erred in
19 failing to ask her for additional corroborative evidence,
20 she misapprehends the agency’s decision. The BIA did not
21 find that the record lacked corroborative evidence, but
22 rather that the documentary evidence Gjoni submitted was
3
1 insufficient to establish past persecution. See Diallo v.
2 INS, 232 F.3d 279, 286 (2d Cir. 2000) (finding that although
3 an applicant’s credible testimony may be sufficient to
4 sustain the burden of proof without corroboration, “an
5 applicant’s credible testimony may not always satisfy the
6 burden of proof”). Finally, Gjoni’s argument that the
7 agency failed to consider her past experiences cumulatively
8 is belied by the record. Cf. Manzur v. U.S. Dep’t of
9 Homeland Sec., 494 F.3d 281, 290 (2d Cir. 2007). Thus,
10 substantial evidence supports the BIA’s finding that Gjoni
11 failed to establish past persecution.
12 B. Well-Founded Fear
13 In the absence of past persecution, an alien can
14 demonstrate eligibility for relief if she can show that she
15 has a well-founded fear of future persecution on account of
16 a protected ground. 8 C.F.R. § 1208.13(b)(2)(i).
17 Substantial evidence supports the agency’s conclusion that
18 Gjoni failed to demonstrate a well-founded fear of being
19 kidnapped and forced into prostitution. The IJ found that:
20 (1) whereas Gjoni is married with children, common targets
21 of involuntary prostitution in Albania are young single
22 women; and (2) the increasingly democratic nature of Albania
4
1 makes it unlikely that Gjoni would be subjected to
2 prostitution because of her political opinion. We are not
3 persuaded by Gjoni’s arguments that this analysis was
4 erroneous. See Manzur, 494 F.3d at 290 (noting that under
5 the substantial evidence standard, an IJ’s findings of fact
6 “are treated as conclusive unless any reasonable adjudicator
7 would be compelled to conclude to the contrary” (internal
8 quotation marks omitted)).
9 Although Gjoni challenges the IJ’s finding that she is
10 an unlikely target for forced prostitution in Albania, a
11 reasonable fact finder would not be compelled to accept her
12 arguments. See Jian Xing Huang v. INS, 421 F.3d 125, 129
13 (2d Cir. 2005) (finding that a fear is not objectively
14 reasonable if it lacks “solid support” in the record and is
15 merely “speculative at best”).
16 Because Gjoni was unable to meet her burden for asylum,
17 she necessarily failed to meet the higher burden required
18 for withholding of removal. See Paul v. Gonzales, 444 F.3d
19 148, 156 (2d Cir. 2006). Although Gjoni sets forth the
20 standard for CAT relief in her brief before this Court, she
21 does not argue that any evidence established a likelihood of
22 torture upon her return to Albania. Accordingly, we deem
5
1 waived any challenge to the agency’s denial of CAT relief.
2 See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d
3 Cir. 2005).
4 II. Docket No. 09-3455-ag (Con): Motion to Reopen
5 We review the BIA’s denial of a motion to reopen for
6 abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d
7 Cir. 2005) (per curiam). 1
8 In her motion, Gjoni argued that because her husband
9 has been granted withholding of removal and she will likely
10 return to Albania alone, she has a well-founded fear of
11 being forced into prostitution. The BIA concluded, however,
12 that the fact that Gjoni’s husband was granted withholding
13 of removal was insufficient to establish her own eligibility
14 for relief.
15 Gjoni argues that the BIA’s October 2008 and July 2009
16 decisions were inconsistent in that the first found that her
17 husband would “likely” return with her to Albania, and that
18 the second noted that she made “no showing that [her]
19 husband was willing to return to Albania” at the time of her
20 January 2006 hearing before the IJ. Gjoni additionally
1
Gjoni does not challenge the BIA’s denial of her
untimely motion to reconsider.
6
1 argues that the IJ placed “significant stock in the pivotal
2 assumption that [she] would ‘likely be accompanied by her
3 husband [] and three children.” Despite Gjoni’s arguments,
4 however, even after considering that her husband was granted
5 withholding of removal, the BIA in considering her motion to
6 reopen found that this fact alone was insufficient to
7 demonstrate her prima facie eligibility for asylum. See INS
8 v. Abudu, 485 U.S. 94, 104-05 (1988). Moreover, the BIA in
9 its October 2008 decision merely considered her husband’s
10 possible return to Albania as one factor among several in
11 support of its conclusion that Gjoni had failed to establish
12 her eligibility for relief. We additionally find unavailing
13 Gjoni’s argument that the evidence she submitted with her
14 motion was not cumulative because it was previously
15 unavailable. As the BIA noted, her evidence merely
16 reiterated general country conditions evidence regarding
17 human trafficking in Albania. Thus, the BIA did not abuse
18 its discretion in denying Gjoni’s motion to reopen. See
19 Kaur, 413 F.3d at 233.
20 For the foregoing reasons, the petitions for review are
21 DENIED. As we have completed our consolidated review, any
22 stay of removal that the Court previously granted is
7
1 VACATED, and any pending motion for a stay of removal is
2 DISMISSED as moot. Any pending request for oral argument is
3 DENIED in accordance with Federal Rule of Appellate
4 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
7
8