         08-4556-ag
         Strumi v. Holder
                                                                                        BIA
                                                                                   Straus, IJ
                                                                               A095 476 744
                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
     IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
     MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


 1            At a stated term of the United States Court of                 Appeals
 2       for the Second Circuit, held at the Daniel Patrick                 Moynihan
 3       United States Courthouse, 500 Pearl Street, in the                 City of
 4       New York, on the 11 th day of February, two thousand               ten.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                      Chief Judge,
 9                PIERRE N. LEVAL,
10                PETER W. HALL,
11                      Circuit Judges.
12       ______________________________________
13
14       RONALD STRUMI,
15                Petitioner,
16
17                          v.                                  08-4556-ag
18                                                              NAC
19       ERIC H. HOLDER JR., ATTORNEY GENERAL, 1
20                Respondent.
21
22       ______________________________________
23       FOR PETITIONER:        Glenn T. Terk, Wethersfield,
24                              Connecticut.




                  1
                 Pursuant to Federal Rule of Appellate Procedure
         43(c)(2), Attorney General Eric H. Holder Jr. is
         automatically substituted for former Attorney General
         Michael B. Mukasey as respondent in this case.
1
2    FOR RESPONDENT:        Tony West, Assistant Attorney
3                           General; Richard M. Evans, Assistant
4                           Director; Benjamin J. Zeitlin, Trial
5                           Attorney, United States Department
6                           of Justice, Office of Immigration
7                           Litigation, Washington, D.C.

8        UPON DUE CONSIDERATION of this petition for review of a

9    Board of Immigration Appeals (“BIA”) decision, it is hereby

10   ORDERED, ADJUDGED, AND DECREED, that the petition for review

11   is DENIED.

12       Ronald Strumi, a native and citizen of Albania, seeks

13   review of an August 20, 2008 order of the BIA dismissing his

14   appeal from the January 4, 2007 decision of Immigration

15   Judge (“IJ”) Michael W. Straus, which denied his application

16   for asylum, withholding of removal, and relief under the

17   Convention Against Torture (“CAT”), and seeks a stay of the

18   voluntary departure period.   In re Ronald Strumi, No. 095

19   476 744 (B.I.A. Aug. 20, 2008), aff’g No. 095 476 744

20   (Immig. Ct. Hartford Jan. 4, 2007).   We assume the parties’

21   familiarity with the underlying facts and procedural history

22   in this case.

23       When the BIA affirms the IJ’s decision in some respects

24   but not others, this Court reviews the IJ’s decision as

25   modified by the BIA’s decision, i.e., minus the arguments


                                   2
1    for denying relief that were rejected by the BIA.   See Xue

2    Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d

3    Cir. 2005).   We review the agency’s factual findings under

4    the substantial evidence standard.   See 8 U.S.C.

5    § 1252(b)(4)(B), Corovic v. Mukasey, 519 F.3d 90, 95 (2d

6    Cir. 2008).   We review de novo questions of law and the

7    application of law to undisputed fact.   See, e.g., Salimatou

8    Bah v. Mukasey, 529 F.3d 99, 100 (2d Cir. 2008).

9        Substantial evidence supports the agency’s conclusion

10   that conditions in Albania have fundamentally changed such

11   that Strumi does not have a well-founded fear of persecution

12   despite his showing of past persecution. See 8 C.F.R.

13   § 1208.13(b)(1)(i); see also Hoxhallari v. Gonzales, 468

14   F.3d 179, 187 (2d Cir. 2006) (per curiam) (affirming

15   agency’s finding that an applicant was ineligible for asylum

16   and withholding of removal based on material political

17   changes in Albania).   Strumi argues that the agency erred in

18   relying upon two State Department reports to find that

19   conditions in Albania had fundamentally changed given that

20   he had presented evidence demonstrating the contrary, and

21   that the agency failed to make an individualized

22   determination as to how the changed circumstances would

23   specifically affect him.

                                   3
1        However, as this Court has previously found, “there is

2    no doubt that there has been a fundamental change in the

3    political structure and government of Albania.”     Hoxhallari,

4    468 F.3d at 188.   Moreover, the agency did conduct an

5    individualized analysis as to how the fundamental change in

6    Albania affected Strumi’s particular claim, which was based

7    on the expression of his political opinion.     Accordingly,

8    the agency reasonably determined that the Government had

9    successfully rebutted the presumption of a well-founded fear

10   of persecution with a showing of a fundamental change in

11   circumstances in Albania.   See 8 U.S.C. § 1252(b)(4)(B);

12   8 C.F.R. § 1208.13(b)(1)(i).

13       The agency also did not abuse its discretion in

14   concluding that Strumi did not warrant a grant of

15   “humanitarian asylum.” See 8 C.F.R. § 1208.13(b)(1)(iii)

16   (providing that an applicant “may be granted asylum, in the

17   exercise of the decision-maker’s discretion” even in the

18   absence of a well-founded fear of persecution); 8 U.S.C.

19   § 1252(b)(4)(D) (providing that we may overturn a

20   discretionary denial of asylum only if it is “manifestly

21   contrary to the law and an abuse of discretion”); Wu Zheng

22   Huang v. INS, 436 F.3d 89, 96 (2d Cir. 2006).     Humanitarian


                                    4
1    asylum has been reserved for applicants who have suffered

2    “atrocious forms of persecution.”       Matter of Chen, 20 I.&N.

3    Dec. 16, 19 (BIA 1989).    This Court has found that an

4    applicant must demonstrate “long-lasting physical or mental

5    effects of his persecution” in order to warrant a

6    humanitarian grant of asylum.       Omaro Jalloh v. Gonzales, 498

7    F.3d 148, 152 (2d Cir. 2007).       While Strumi was subject to

8    physical assaults and death threats by security forces, we

9    cannot find that the agency acted arbitrarily or

10   capriciously in determining that this mistreatment did not

11   rise to the extreme level required for humanitarian asylum.

12   See id; see also Hoxhallari, 468 F.3d at 184 (upholding the

13   denial of humanitarian asylum to a supporter of the

14   Democratic Party in Albania who had been beaten and harassed

15   on six occasions).

16       We are also unpersuaded by Strumi’s due process claim

17   based on the IJ’s alleged bias against him.       While the IJ

18   expressed his belief that Strumi was not a truthful witness,

19   he nonetheless acknowledged that in light of the BIA’s

20   order, he was required to presume that Strumi had endured

21   past persecution.    Moreover, the BIA explicitly disavowed

22   the IJ’s remarks as to Strumi’s credibility.       In these


                                     5
1    circumstances, we do not find that Strumi received anything

2    less than a full and fair opportunity to present his claims.

3    See Ali v. Mukasey, 529 F.3d 478, 490 (2d Cir. 2008);

4    Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir. 2008).

5        Finally, Strumi has waived any challenge the agency’s

6    denial of his application for withholding of removal and CAT

7    relief.   See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541

8    n.7 (2d Cir. 2005).

9        For the foregoing reasons, the petition for review is

10   DENIED.   In addition, Strumi’s motion for a stay of the

11   voluntary departure period is DENIED.    See Thapa v.

12   Gonzales, 460 F.3d 323, 334 (2d Cir. 2006).    As we have

13   completed our review, any stay of removal that the Court

14   previously granted in this petition is VACATED, and any

15   pending motion for a stay of removal in this petition is

16   DISMISSED as moot.    Any pending request for oral argument in

17   this petition is DENIED in accordance with Federal Rule of

18   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

19   34(b).

20                                FOR THE COURT:
21                                Catherine O’Hagan Wolfe, Clerk
22
23
24




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