Hoxha v. Holder

12-814
Hoxha v. Holder
BIA
Vu Bain, IJ
A097 849 222
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 31st day of October, two thousand thirteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge
JON O. NEWMAN,
RALPH K. WINTER,
Circuit Judges.
_____________________________________
LULZIM HOXHA,
Petitioner,
12-814
v. NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Bruno Joseph Bembi, Hempstead, NY.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; William C.
Peachey, Assistant Director and
Andrew B. Insenga, Trial Attorney,
Office of Immigration Litigation,
Civil Division, 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.
Petitioner, Lulzim Hoxha, a native and citizen of
Albania, seeks review of a February 1, 2012, decision of the
BIA affirming the January 20, 2010, decision of Immigration
Judge (“IJ”) Quynh Vu Bain denying his application for
asylum, withholding of removal and relief under the
Convention Against Torture (“CAT”). In re Lulzim Hoxha, No.
A097 849 222 (B.I.A. Feb. 1, 2012), aff’g No. A097 849 222
(Immig. Ct. N.Y. City Jan. 20, 2010). We assume the
parties’ familiarity with the underlying facts and
procedural history of the case.
We review the IJ’s decision as supplemented by the BIA.
See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
The applicable standards of review are well established.
See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562
F.3d 510, 513 (2d Cir. 2009). Because Hoxha does not
meaningfully challenge the denial of CAT relief, we address
only asylum and withholding of removal. See Gui Yin Liu v.
INS, 508 F.3d 716, 723 n.6 (2d Cir. 2007).
Hoxha contends that he demonstrated his asylum claim by
establishing a well-founded fear of persecution based on
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evidence that members of the Albanian Socialist Party
persecuted him due to his participation in the Albanian
Democratic Party. Although, because the BIA assumed past
persecution, Hoxha was presumed to have a well-founded fear
of persecution, the agency reasonably found that the
government rebutted that presumption by establishing that
the circumstances in Albania have fundamentally changed.
See 8 C.F.R. § 1208.13(b)(1). According to the 2008 State
Department Human Rights report and other State Department
reports on which the agency relied, the Albanian government
has engaged in electoral reform, democratized, and undergone
peaceful transitions between governments. The reports also
note that the Democratic Party, which Hoxha supports, gained
control of the Albanian Parliament in 2005, and that there
has since been no evidence of systemic political
persecution.
Contrary to Hoxha’s assertions, the Socialist Party’s
continued control of some local governments and engagement
in violence unrelated to politics do not negate this
fundamental change in inter-party relations. Absent
contradictory evidence that the Socialist Party targets
members of the majority Democratic Party, the IJ reasonably
relied on these reports to conclude that Hoxha no longer has
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a well-founded fear of persecution. See 8 U.S.C.
§ 1252(b)(4)(B) (providing that an IJ’s factual findings
will be upheld unless a reasonable adjudicator would be
compelled to conclude to the contrary); Hoxhallari v.
Gonzales, 468 F.3d 179, 185-86 (2d Cir. 2006) (finding
material change in Albania given State Department reports
identifying Albania as moving away from Communism and
towards democracy). Given this change, there was no
objectively reasonable fear of future persecution as needed
to make out an asylum claim; consequently, Hoxha was also
unable to meet the higher standard required to succeed on a
claim for withholding of removal. See Lecaj v. Holder, 616
F.3d 111, 119-20 (2d Cir. 2010).
Additionally, the agency did not abuse its discretion
in concluding that Hoxha did not demonstrate “compelling
reasons for being unwilling or unable to return to the
country arising out of the severity of the past persecution”
pursuant to 8 C.F.R. § 1208.13(b)(1)(iii)(A); see Matter of
Chen, 20 I. & N. Dec. 16 (BIA 1989). The agency reasonably
concluded that Hoxha did not present sufficient evidence
demonstrating that his current psychological symptoms are
severe or arose from the severity of the past persecution
given that his psychologist could not account for the origin
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of Hoxha’s symptoms of forgetfulness and nightmares or
describe their frequency or intensity and testified that his
symptoms did not interfere with his daily functioning. See
8 U.S.C. § 1252(b)(4)(D); Jalloh v. Gonzales, 498 F.3d 148,
151-52 (2d Cir. 2007) (finding no abuse of discretion in
denial of humanitarian asylum when there was insufficient
evidence of long-lasting physical or mental effects due to
persecution); Hoxhallari, 468 F.3d at 184 (upholding the
denial of humanitarian asylum to a supporter of the
Democratic Party in Albania who had been beaten and harassed
on six occasions); Wu Zheng Huang v. INS, 436 F.3d 89, 97
n.9 (2d Cir. 2006) (noting that an abuse of discretion may
be found “where the Board’s decision provides no rational
explanation, inexplicably departs from established policies,
is devoid of any reasoning, or contains only summary or
conclusory statements” (quoting Ke Zhen Zhao v. U.S. Dep’t
of Justice, 265 F.3d 83, 93 (2d Cir. 2001))).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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