Cinaj v. Gonzales

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 06-60412 F I L E D
September 13, 2007
BEKIM CINAJ Charles R. Fulbruge III
Clerk
Petitioner
v.
ALBERTO R. GONZALES, U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
No. A98-555-003
Before HIGGINBOTHAM, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Bekim Cinaj1 applied for political asylum in the United States. The
Immigration Judge granted Cinaj political asylum and withholding of removal.
The Board of Immigration Appeals vacated the decision, finding Cinaj ineligible
for asylum or withholding removal. Cinaj petitions for review of the BIA’s order.
We grant the petition, vacate the order, and remand.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
Petitioner states that his last name is “Cenaj.” However, his name is listed as “Cinaj” on the
notice to appear, on the BIA’s decision, and in the parties’ briefs. For consistency, we refer to the
petitioner as “Cinaj.”
No. 06-60412
I.
Cinaj is a citizen of Kosovo in Serbia and Montenegro. Border Patrol
detained him in Laredo, Texas. The Department of Homeland Security charged
Cinaj with being ineligible for admission and subject to removal. Appearing
before an Immigration Judge (IJ), Cinaj admitted his nationality and his
attempt to enter the United States but denied being removable. The IJ found
that Cinaj was inadmissible and subject to removal. Cinaj then requested
asylum, withholding of removal, and relief under the Convention Against
Torture (CAT). He filed a written asylum application asserting that he feared
returning to Kosovo because of persecution on account of political opinion.
The IJ conducted a hearing on Cinaj’s application. The IJ granted Cinaj
asylum and withholding of removal, but denied relief under the CAT. The IJ
found Cinaj to be a credible witness. The IJ concluded that Cinaj suffered past
persecution, which caused Cinaj to go into hiding and leave the country. The
IJ further reasoned that Cinaj had a well-founded fear of future persecution,
which was supported in part by the continued volatility in Kosovo and threats
Cinaj’s family continued to receive after he left.
II.
On appeal the BIA vacated the IJ’s decision. The BIA reasoned that
“[e]ven if [it] agreed with the Immigration Judge’s assessment” that Cinaj
suffered past persecution, Cinaj failed to meet his burden of showing that the
Kosovar government was unable or unwilling to protect him from the unknown
assailants who attacked him and who also murdered a friend of his allegedly on
account of political activity. Moreover, Cinaj failed to report the incidents to the
UN peacekeeping forces. The BIA took administrative notice of the 2005 State
Department Country Report for Serbia and Montenegro, noting that the UN
continued to transfer police authority to the Kosovo Police Service (KPS). The
BIA stated that the country report showed that an international commissioner
2
No. 06-60412
of police directed both the UN force and the KPS and that “the combined force
was generally effective and constituted an improvement over previous years.”
The BIA concluded that Cinaj failed to satisfy his burden of proof for asylum and
failed to satisfy his burden with respect to the more stringent standard for
withholding of removal and relief under the CAT. Cinaj filed a timely petition
for review.
III.
Cinaj contends, inter alia, that the BIA misapplied that burden of proof by
requiring him to prove future persecution. Specifically, he argues that because
he established past persecution he is entitled to a presumption of future
persecution, which the government must rebut by a preponderance of the
evidence. We agree.
“We have authority to review only an order of the BIA, not the IJ, unless
the IJ’s decision has some impact on the BIA’s decision.”2 While we review the
BIA’s factual findings under the substantial evidence standard, we review
conclusions of law de novo.3 We “may reverse a decision that was decided on the
basis of an erroneous application of the law.”4
If an alien establishes past persecution, the alien “shall also be presumed
to have a well-founded fear of persecution on the basis of the original claim.”5
The presumption may be rebutted by a preponderance of the evidence showing
that there has been “a fundamental change in circumstances” negating the
alien’s well-founded fear or that the alien “could avoid future persecution by
2
Mikhael v. I.N.S., 115 F.3d 299, 302 (5th Cir. 1997).
3
Id. at 302, 305.
4
Id. at 305.
5
CFR § 208.13(b)(1) (emphasis added).
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No. 06-60412
relocating to another part” of the alien’s country.6 When the alien demonstrates
past persecution, the regulations place the burden of proof on the government
to rebut the presumption of a well-founded fear of persecution.7
Here, the BIA placed the burden of proof on Cinaj. The BIA held that
“even if [it] agreed” that Cinaj had suffered past persecution, “the respondent
failed to meet his burden of proving that the Kosovar government would be
unable or unwilling to protect him from persecution.” Once the BIA assumed
Cinaj’s allegations of past persecution, the regulations placed the burden of
rebutting the presumption that Cinaj has a “well-founded fear of persecution on
the basis of the original claim” on the government. The BIA erred in failing to
switch the burden of proof to the government.8
Although Cinaj would have us reach the merits of his claims,9 we vacate
the BIA’s order and remand, allowing the BIA the opportunity to consider
Cinaj’s claims under the proper standard in the first instance.10
We note, however, that the BIA has a responsibility to consider the
particular circumstances confronting an asylum applicant when determining
whether there is a danger of future persecution.11 While the BIA may take
6
CFR § 208.13(b)(1)(i).
7
CFR § 208.13(b)(1)(ii).
8
See De Brenner v. Ashcroft, 388 F.3d 629, 638-39 (8th Cir. 2004); Fergiste v. I.N.S., 138 F.3d
14, 18-19 (1st Cir. 1998); Mikhael, 115 F.3d at 306.
9
See Fergiste, 138 F.3d at 19-21 (considering the merits after determining that the BIA
misapplied the burden of proof).
10
See Mikhael, 115 F.3d at 306 (remanding where BIA adopted IJ’s erroneous application of
burden of proof); see also Osorio v. INS, 99 F.3d 928, 932-33 (9th Cir. 1996); Tarvand v. INS, 937 F.2d
973, 977 (4th Cir. 1991).
11
See CFR § 208.13(b)(1)(A) (“There has been a fundamental change in circumstances such that
the applicant no longer has a well-founded fear of persecution . . . .” (emphasis added)); id. §
208.13(b)(1)(B) (“The applicant could avoid future persecution . . . .” (emphasis added)).
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No. 06-60412
account of changed country conditions,12 it may not do so in lieu of making that
individualized assessment.13
IV.
Accordingly, we GRANT the petition, VACATE the BIA’s order, and
REMAND for further proceedings.
12
See Rivera-Cruz v. I.N.S., 948 F.2d 962, 966-67 (5th Cir. 1991).
13
See, e.g., Gailius v. I.N.S., 147 F.3d 34 (1st Cir. 1998); Osorio v. I.N.S., 99 F.3d 928, 932-33
(9th Cir. 1996); de la Llana-Castellon v. I.N.S., 16 F.3d 1093 (10th Cir. 1994); Kaczmarczyk v. I.N.S.,
933 F.2d 588, 594-95 (7th Cir. 1991); see also Abdel-Masieh v. I.N.S., 73 F.3d 579 (5th Cir. 1996) (“While
we do not require that the BIA address evidentiary minutia or write any lengthy exegesis, its decision
must reflect meaningful consideration of the relevant substantial evidence supporting the alien’s
claims.” (citation omitted)).
5