NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 4, 2011
Decided November 9, 2011
Before
RICHARD D. CUDAHY, Circuit Judge
JOEL M. FLAUM, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 10‐2397
GEZIM DAKAJ, et al.,
Petitioners, Petition for Review of an Order of
the Board of Immigration Appeals
v.
No. A095‐583‐271
ERIC H. HOLDER, JR., No. A095‐583‐272
Attorney General of the United States, No. A095‐583‐273
Respondent.
ORDER
This matter is before us for a second time. Gezim Dakaj and his wife, Mire, left
Albania with their minor son and applied for asylum and withholding of removal more
than a year after reaching the United States. An immigration judge denied both forms of
relief, and the Board of Appeals dismissed their administrative appeal on the ground that
the Dakajs had not submitted a timely brief. In our previous decision we directed the BIA to
give further consideration to the Dakajs’ appeal, but again the outcome did not favor the
Dakajs. Once more they have petitioned for judicial review. We deny their petition.
No. 10‐2397 Page 2
After the collapse of an oppressive communist regime in the early 1990s, Albania
spent the next decade transitioning to democracy. Two major parties, the Democratic Party
and the Socialist Party, have competed (at times violently) to gain or retain power. In his
asylum application, Gezim Dakaj claimed that he supported the Democrats and, as a result,
his house was shot at, he was harassed and threatened by Socialist Party supporters, and he
was arrested, questioned, beaten, and shot by police. The Dakajs left Shkoder, Albania, in
2000 but waited more than a year after entering the United States before they applied for
asylum and withholding of removal.
In his 2007 decision the IJ concluded that the Dakajs were not eligible for asylum
because they had missed the one‐year application deadline. 8 U.S.C. 1158(a)(2)(B). The IJ
also concluded that the Dakajs were not entitled to withholding of removal because, he
found, their testimony about their encounters with Albanian police and Socialist supporters
was not credible. And even if that testimony had been credible, the IJ reasoned, the
treatment they allegedly endured did not rise to the level of persecution. Moreover, the IJ
continued, the government had rebutted any presumption of future persecution with
evidence of changed conditions in Albania.
The Dakajs filed with the BIA a notice of appeal that lists two contentions to be
raised: that Mire Dakaj had not been allowed to testify at the hearing before the IJ, and that
the IJ had misstated facts about the current Albanian government and thus incorrectly
found that conditions in Albania had changed favorably. The Dakajs stated in their notice of
appeal that they would be submitting a brief, but they missed the filing deadline. They later
moved to file their brief late and also sought permission to amend their notice of appeal to
include additional issues. The BIA would not accept a late brief or allow the Dakajs to
amend their notice of appeal (the BIA may summarily dismiss any claim not listed in the
notice of appeal,
8 C.F.R. § 1003.1(d)(2)(i)(A)). The Dakajs petitioned for judicial review.
We upheld the denial of leave to amend the notice of appeal but concluded that the
BIA must reconsider the Dakajs’ motion for leave to submit a late brief. Dakaj v. Holder,
580
F.3d 479 (7th Cir. 2009). We directed that, if on remand the BIA decided to accept a late
brief, it should address the merits of any argument within the scope of the existing notice of
appeal, keeping in mind that submissions from pro se aliens should be liberally construed,
and that the Dakajs do not speak English.
Id. at 485. Additionally, we directed that, if the
Dakajs should include in their brief arguments outside the scope of the notice of appeal, the
BIA should consider whether to construe the brief as an implicit motion to amend the notice
of appeal and, if so, whether to grant the motion.
Id.
On remand the BIA granted the Dakajs leave to file a late brief. In that brief the
Dakajs argued, as signaled by their notice of appeal, that the IJ had erroneously found that
No. 10‐2397 Page 3
country conditions in Albania had changed. They also included in their brief three
arguments not mentioned in the notice of appeal: that the translator at their hearing had
performed poorly, that the IJ had erred in finding them not credible, and that the IJ’s
conclusion that they did not experience past persecution is not supported by substantial
evidence. The BIA acknowledged that the Dakajs had included in their notice of appeal the
contention about changed country conditions, but upheld the IJ’s finding that conditions
had changed favorably. As for the remaining arguments, the BIA declined to construe the
Dakajs’ brief as an implicit motion to amend their notice of appeal to include these
contentions. Moreover, the BIA continued, leave to amend would have been denied even
had it been requested.
Back in this court, the Dakajs first argue that the IJ erred in concluding that country
conditions in Albania had changed so that they would not be in danger if they returned. We
will uphold a decision to deny withholding of removal if it is supported by substantial
evidence. Kedjouti v. Holder,
571 F.3d 718, 720 (7th Cir. 2009). When the BIA has upheld the
IJ’s determination and added additional reasons of its own, we review the decisions of both
the BIA and the IJ. Mema v. Gonzales,
474 F.3d 412, 416 (7th Cir. 2007).
If an IJ finds that an applicant for withholding was persecuted in the past, the
government may rebut the resulting presumption of future persecution by establishing by a
preponderance of evidence that circumstances have fundamentally changed so that the
applicant’s life or freedom would no longer be threatened.
8 C.F.R. § 1208.16(b)(1)(i)(A);
Firmansjah v. Gonzales,
424 F.3d 598, 605 (7th Cir. 2005). A country report may be sufficient
to demonstrate changed country conditions if the report addresses the specific basis for the
alien’s fear of persecution. Milanouic v. Holder,
591 F.3d 566, 571 (7th Cir. 2010); Toptchev v.
INS,
295 F.3d 714, 722 (7th Cir. 2002); see also Brucaj v. Ashcroft,
381 F.3d 602, 607 (7th Cir.
2004) (relying on State Department’s country report on Yugoslavia, which discussed
dismantling of Milosevic regime that had persecuted Albanians, to find that country
conditions had changed as they related to ethnic Albanian).
In finding that country conditions had favorably changed, the IJ relied on references
in country reports to a Democratic prime minister taking power in 2005. A new government
led by the Democratic Party directly addresses the basis for the Dakajs’ asserted fear of
persecution, because they allegedly were targeted by the former Socialist government and
its supporters because of their affiliation with the Democratic Party. Decisions from this and
other courts support the IJ’s finding. See Kucana v. Holder,
603 F.3d 394, 396 (7th Cir. 2010)
(noting that State Department described Albania as stable and peaceful democratic nation
that generally respects human rights and protects freedom of political dissent); Nako v.
Holder,
611 F.3d 45, 49–50 (1st Cir. 2010) (concluding that presumption of future persecution
rebutted for supporter of Democratic Party because Democratic Party now controls Albania
No. 10‐2397 Page 4
and there is evidence that politically‐motivated violence has ceased); Lybesha v. Holder,
569
F.3d 877, 881–882 (8th Cir. 2009) (deciding that supporter of Democratic Party could not
establish well‐founded fear of future prosecution because Democrats now control Albanian
government); Bejko v. Gonzales,
468 F.3d 482, 486–487 (7th Cir. 2006) (upholding IJ’s finding
that supporter of Democratic Party did not have well‐founded fear of prosecution in
Albania, because after 1998 there had not been a major outbreak of political violence and
available evidence suggested that by 2004 the government and political parties no longer
engaged in policies of abuse and coercion against opponents).
The Dakajs contend that a change in power at the national level does not necessarily
mean that circumstances have changed at the local level. But the reports regarding national
changes are sufficient to rebut the presumption of future persecution where the applicant
has not presented evidence that local conditions are any different. See Milanouic,
591 F.3d at
571–572 (concluding that country report adequately rebutted presumption of future
persecution when applicant failed to present evidence that local conditions were dissimilar
to national conditions). The Dakajs’ assertion that the national government has little
influence at the local level is unsupported. Furthermore, the IJ characterized the Dakajs’
hometown of Shkoder as a Democratic Party stronghold, a conclusion that the BIA found to
be supported by the Dakajs’ own testimony, as well as by two newspaper articles discussed
in Celaj v. Gonzalez,
468 F.3d 1094, 1098 (8th Cir. 2006). There is substantial evidence to
support the finding that the Dakajs would be safe in Albania generally, and also more
specifically in Shkoder.
In upholding the IJ’s conclusion that country conditions had changed favorably, the
BIA did not consider two reports that the Dakajs cited in their brief to the BIA but had never
submitted to the IJ. The Dakajs urge us to look at those reports, of which we may take
judicial notice. Nwaokolo v. INS,
314 F.3d 303, 308 (7th Cir. 2002). But there is no reason to do
so; the excerpts the Dakajs quoted in their brief to the BIA and likewise repeat in their brief
here do not undermine the finding that country conditions have changed favorably. These
excerpts discuss—generally and in broad terms—arrest and detention, police corruption,
antagonism between the dominant parties in Albania, misuse of state resources, and
irregular voting processes. Most of what is discussed comes nowhere close to conduct that
could be described as abusive (e.g., legislative stalemates), and none of the information
directly relates to the likelihood that the Dakajs risk being persecuted if they return to
Albania. Even to the extent that these reports mention abuse by police, this information
does not demonstrate that people are being abused because of their political views, in
particular their Democratic affiliation.
No. 10‐2397 Page 5
The Dakajs further argue that the BIA should have considered these reports. But
even though the BIA may take administrative notice of reports that the IJ did not consider,
no regulation or court decision requires the BIA to do so. See
8 C.F.R. § 1003.1(d)(3)(iv)
(providing that BIA may not engage in fact finding, but may take administrative notice of
commonly known facts including current events or contents of official documents); Meghani
v. INS,
236 F.3d 843, 848 (7th Cir. 2001) (explaining that BIA is not required to sua sponte
take administrative notice of new country reports). Also, as discussed above, the reports do
not undermine the finding of changed conditions.
Next, the Dakajs argue that the BIA abused its discretion in refusing to construe the
inclusion of additional arguments in their brief as a motion to amend their notice of appeal.
Our determination that substantial evidence supports the immigration courts’ finding that
country conditions in Albania have changed makes immaterial any question about the
Dakajs’ credibility or whether the harms they allegedly suffered constituted persecution. See
8 C.F.R. § 1208.16(b)(1)(i) (providing that applicant found to have suffered past persecution
will not be entitled to withholding of removal if government rebuts resulting presumption
of future persecution); Milanouic,
591 F.3d at 569–572 (upholding IJ’s conclusion that
although applicant established past persecution, he would not be withheld from removal
because presumption of future persecution was rebutted by changed country conditions);
Toptchev,
295 F.3d at 722 (explaining IJ’s conclusion that, even if applicants had been
persecuted, changed conditions rebutted presumption of future persecution). For that
reason, we need not address the Dakajs’ secondary argument that the BIA improperly
refused to address the other issues in their brief.
Last, the government filed a motion, which has been taken with the case, asking for a
remand to the BIA. That motion lacks merit for the same reason that we need not address
the Dakajs’ secondary argument.
Accordingly, the government’s motion for remand and the Dakajs’ petition for
review are DENIED.
