Lucaj v. Wilkinson

United States Court of Appeals
For the First Circuit
No. 20-1566
NIKOLIN LUCAJ, RITA LUCAJ, MARIELA LUCAJ,
GORDON LUCAJ, LETICIA LUCAJ,
Petitioners,
v.
ROBERT M. WILKINSON, in his official capacity as Acting Attorney
General of the United States.
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Thompson, Boudin, and Kayatta,
Circuit Judges.
Gregory Marotta and Law Office of Gregory Marotta on brief
for petitioner.
Jeffrey Bossert Clark, Assistant Attorney General, U.S.
Department of Justice, Civil Division, John S. Hogan, Assistant
Director, U.S. Department of Justice, Office of Immigration
Litigation, Brianne Whelan Cohen, Senior Litigation Counsel, U.S.
Department of Justice, Civil Division, on brief for respondent.
March 10, 2021
BOUDIN, Circuit Judge. In 2001, the Socialist Party of
Albania won country-wide elections. In October of that year,
Nikolin Lucaj, his wife, and three of his children travelled to
the United States from Albania. He returned to Albania briefly
but reentered the United States on February 10, 2002 and applied
for asylum, arguing that he and his family had been persecuted
because of his support of the Democratic Party in Albania and that
they had a well-founded fear of future persecution.
An asylum officer found that Mr. Lucaj was ineligible
for asylum and ordered Mr. Lucaj and his family to appear in
immigration court. Mr. Lucaj conceded removability and requested
asylum, withholding of removal, and protection under the
Convention Against Torture. On October 23, 2006, the immigration
judge denied his petition after finding that his testimony was
“rather unreliable” and did not prove he was eligible for the
requested relief. The Board of Immigration Appeals ("BIA")
affirmed.
Mr. Lucaj did not appeal that BIA determination.
Instead, Mr. Lucaj asked the BIA to reopen his case and to remand
it to the Immigration Court for a new hearing. That motion was
denied by the BIA, as was his later motion to reconsider reopening
the case (affirmed by this court on appeal). However, Mr. Lucaj
and his family remained in the United States, and on September 7,
2019, Mr. Lucaj once again asked the BIA to reopen his case on the
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ground that circumstances, including government corruption, had
deteriorated in Albania. The BIA denied his request, and Mr. Lucaj
appealed.
A petitioner seeking to reopen removal proceedings based
on changed country circumstances must first "'introduce new,
material evidence that was not available at the original merits
hearing.'" Bbale v. Lynch, 840 F.3d 63, 66 (1st Cir. 2016)
(quoting Perez v. Holder, 740 F.3d 57, 62 (1st Cir. 2014)). That
evidence "'must demonstrate the intensification or deterioration
of country conditions, not their mere continuation,' and the
petitioner bears the burden of making such showing through a
'convincing demonstration.'" Twum v. Barr, 930 F.3d 10, 20 (1st
Cir. 2019) (quoting Xin Qiang Liu v. Lynch, 802 F.3d 69, 76 (1st
Cir. 2015)). Second, a petitioner must make out a prima facie
case of eligibility for the relief sought. Id., 930 F.3d at 21.
To evaluate whether there has been a material change in
country conditions, the BIA is required to "compare 'the evidence
of country conditions submitted with the motion to those that
existed at the time of the merits hearing,'" Nantume v. Barr, 931
F.3d 35, 38 (1st Cir. 2019) (quoting Liu v. Holder, 727 F.3d 53,
57 (1st Cir. 2013)), including, where necessary, "the evidence
submitted with the petitioner's motion to reopen with the evidence
presented at his merits hearing," Cabas v. Barr, 928 F.3d 177, 181
(1st Cir. 2019). The BIA's decision not to reopen a petitioner's
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case will stand "unless the petitioner can show that the BIA
committed an error of law or exercised its judgment in an
arbitrary, capricious, or irrational manner." Bbale, 840 F.3d at
66.
To support his case for reopening, Mr. Lucaj submitted
an affidavit complaining in particular about two events that
occurred after his removal proceeding in 2006: The Socialist party
took power in 2013, and then in 2019 the Socialists' corruption
and connections with organized crime deterred the opposition party
from even participating in the 2019 elections. Mr. Lucaj provided,
among other things, the State Department’s 2018 Human Rights Report
on Albania, the Freedom House "Freedom in the World 2018" Report
on Albania, and articles from 2018 and 2019 about corruption in
Albania and the Socialist Party's success in recent elections. We
do not know whether those submissions show materially worsening
conditions for Democratic Party members in Albania, however,
because the BIA refused to compare those reports to available
evidence of conditions from 2006, claiming that Mr. Lucaj had not
"explained how the proffered . . . country condition documentation
show[s] qualitatively different conditions from 2006." Plainly,
though, he did so by pointing out the two cited, post-2006 events
as evidence of changed conditions. The BIA's failure to assess
whether those changes were sufficient was arbitrary and
capricious. See Aponte v. Holder, 683 F.3d 6, 14 (1st Cir. 2012).
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Therefore, we reverse the decision by the BIA and remand
Mr. Lucaj's case so that the BIA can review available evidence to
examine whether conditions for members of the Democratic Party in
Albania have deteriorated since 2006 and, if so, whether Mr. Lucaj
has established a prima facie case for relief.
It is so ordered.
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