Ardjan Vukaj v. Eric Holder, Jr. , 426 F. App'x 387 ( 2011 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0400n.06
No. 10-3705
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
ARDJAN VUKAJ, )
) Jun 14, 2011
Petitioner, ) LEONARD GREEN, Clerk
)
v. ) ON PETITION FOR REVIEW
) FROM A FINAL ORDER OF THE
ERIC H. HOLDER, JR., Attorney General, ) BOARD OF IMMIGRATION
) APPEALS
Respondent. )
Before: KEITH, MARTIN, and COOK, Circuit Judges.
PER CURIAM. Ardjan Vukaj, proceeding through counsel, petitions this court for review
of the order of the Board of Immigration Appeals denying his applications for asylum and
withholding of removal under the Immigration and Nationality Act and protection under the
Convention Against Torture. Vukaj has also moved for a stay of removal. This case has been
referred to a panel of the court pursuant to Rule 34(j)(1), Rules of the Sixth Circuit. Upon
examination, this panel unanimously agrees that oral argument is not needed in this case. Fed. R.
App. P. 34(a)(2)(C).
Vukaj is a native and citizen of Albania. He filed an application for asylum and withholding
of removal on October 6, 2003, claiming that he entered the United States on January 20, 2003. In
an oral ruling, the Immigration Judge denied Vukaj’s applications for asylum, withholding of
removal, and protection under the Torture Act, and denied his application for voluntary departure.
The Board assumed, without deciding, that Vukaj’s claims were credible and that they established
past persecution. Nonetheless, the Board dismissed the appeal, finding that the Department of
Homeland Security had met its burden of establishing that conditions had sufficiently changed in
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Albania such that Vukaj no longer had a well-founded fear of persecution. The Board also found
that Vukaj’s past persecution was not so severe that it would be inhumane for the United States to
return him to Albania.
Vukaj argues that he has established a well-founded fear of future persecution through his
credible testimony and documentary evidence. He also argues that the changed conditions in
Albania do not affect his individual situation. Finally, Vukaj argues that the Board erred in finding
his past persecution was not so severe to merit humanitarian asylum.
“Where the BIA provides its own reasoning . . . rather than summarily affirming the IJ, we
review the BIA’s decision as the final agency determination.” Sanchez v. Holder, 627 F.3d 226, 230
(6th Cir. 2010). We review a decision as, “any administrative findings of fact are conclusive unless
any reasonable adjudicator would be compelled to conclude to the contrary.” Ndrecaj v. Mukasey,
522 F.3d 667, 677 (6th Cir. 2008) (internal quotation marks omitted). We review questions of law
de novo; however, a determination that the petitioner failed to establish eligibility for asylum will
be upheld as long as substantial evidence supports that determination. Ceraj v. Mukasey, 511 F.3d
583, 588 (6th Cir. 2007).
To qualify for asylum, an applicant must qualify as a refugee and must merit a favorable
exercise of discretion by the Attorney General. Ndrecaj, 522 F.3d at 674. A refugee is someone
“who is unable or unwilling to return to his country because of persecution or a well-founded fear
of persecution on account of his or her race, religion, nationality, membership in a particular social
group, or political opinion.” Id. (internal quotation marks omitted). Past persecution raises a
rebuttable presumption of a well-founded fear of future persecution. Mapouya v. Gonzales, 487 F.3d
396, 412 (6th Cir. 2007). However, the Attorney General “may rebut that presumption by showing
that conditions in the applicant’s country have changed so that the applicant no longer has a well-
founded fear of persecution.” Id. (internal quotation marks omitted).
In his application for asylum, Vukaj pointed to a history of political persecution – first by the
Communist Party, and then by the Socialist Party. He asserted that the Communist government held
his family in an internment camp in the 1980s, and that he was later beaten by members of the
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Socialist Party in 2003, after they found his Democratic Party membership card. During his hearing,
Vukaj stated that his home region is controlled by the Socialist Party, and that he would face
persecution if he returned to his home.
However, substantial evidence supports the Board’s conclusion that Vukaj no longer has a
well-founded fear of political persecution. A 2006 profile of Albania, by the State Department,
noted that elections in 2005 “were conducted in a noticeably improved environment with little of the
violence or intimidation that marred previous elections.” The profile also noted that “there have
been no outbreaks of political violence since 1998, and the available evidence suggests that neither
the Government nor the major political parties engage in policies of abuse or coercion against their
political opponents.” The State Department’s 2007 Country Report found that there were no reports
of politically motivated disappearances, and no reports that the government or its agents committed
arbitrary or unlawful killings. We have echoed these conclusions, having “repeatedly concluded that
the conditions in Albania have improved to such an extent that there is no objective basis for a well-
founded fear of future persecution based on political or religious beliefs.” Ceraj, 511 F.3d at 593.
Vukaj has not provided any evidence to refute the government’s evidence of fundamentally changed
political conditions. See Liti v. Gonzales, 411 F.3d 631, 640 (6th Cir. 2005).
Vukaj counters this argument and states he should have been granted asylum based on the
severity of his past persecution. Under 8 C.F.R. § 1208.13(b)(1)(iii), humanitarian asylum can be
available where the applicant has suffered under egregious forms of persecution in the past, but faces
little likelihood of future persecution. Ben Hamida v. Gonzales, 478 F.3d 734, 740-41 (6th Cir.
2007). Humanitarian asylum is available only in rare instances, and will often require detailed
testimony and lengthy documentation of the past persecution. Id. at 740; Klawitter v. INS, 970 F.2d
149, 153-54 (6th Cir. 1992).
We agree that substantial evidence supports the Board’s conclusion that Vukaj did not suffer
the extreme persecution required for humanitarian asylum. Vukaj was in the internment camp from
the time he was two years old, until the time he was nine years old. He stated that he was beaten by
the communists for trying to jump the fence to escape. Vukaj’s mother, Atrina, testified that Vukaj
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was beaten for leaving school during the middle of the day to get something to eat. Vukaj also noted
that he was beaten by police with poles and sticks in 2003 because of his membership. This
testimony is insufficient to support humanitarian asylum. See Klawitter, 970 F.2d at 153.
Vukaj also applied for withholding of removal. However, because Vukaj has failed to
establish his eligibility for asylum, it follows that he cannot satisfy the more stringent standard for
withholding of removal. Ndrecaj, 522 F.3d at 677.
The petition for review is denied. The motion for a stay of removal is also denied.