    10-2824-ag
    Bacuku v. Holder
                                                                                  BIA
                                                                            Abrams, IJ
                                                                          A098 273 744
                        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.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 22nd day of September, two thousand eleven.

    PRESENT:
             GUIDO CALABRESI,
             GERARD E. LYNCH,
             SUSAN L. CARNEY,
                Circuit Judges.
    _______________________________________

    KASTRIOT BACUKU
             Petitioner,

                       v.                                  10-2824-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _______________________________________

    FOR PETITIONER:               Saul C. Brown, New York, New York.

    FOR RESPONDENT:               Tony West, Assistant Attorney
                                  General; M. Jocelyn Lopez Wright,
                                  Senior Litigation Counsel; Melissa
                                  K. Lott, Attorney, Office of
                                  Immigration Litigation, 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 GRANTED in part and DENIED in part.

    Kastriot Bacuku, a citizen of Albania, seeks review of

a June 21, 2010, order of the BIA affirming the June 19,

2008, decision of Immigration Judge (“IJ”) Steven R. Abrams,

which denied his application for asylum, withholding of

removal, and relief under the Convention Against Torture

(“CAT”).     In re Kastriot Bacuku, No. A098 273 744 (B.I.A.

June 21, 2010), aff’g No. A098 273 744 (Immig. Ct. N.Y. City

June 19, 2008).    We assume the parties’ familiarity with the

underlying facts and procedural history in this case.

    Under the circumstances of this case, we have reviewed

the decision of the IJ as supplemented by the BIA.     See Yan

Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).     We

review the agency’s factual findings under the substantial

evidence standard, treating them as “conclusive unless any

reasonable adjudicator would be compelled to conclude to the

contrary.”    8 U.S.C. § 1252(b)(4)(B); see, e.g., Bah v.

Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).     However, we will

vacate and remand for new findings if “the agency’s

reasoning or its fact-finding process was sufficiently

                                2
flawed.”   Id.; see also Cao He Lin v. U.S. Dep’t of Justice,

428 F.3d 391, 406 (2d Cir. 2005).

    The regulations require IJs to exercise the Attorney

General’s discretion to deny asylum to applicants who

establish eligibility based solely on past persecution when

the government establishes a fundamental change in

circumstances sufficient to rebut the presumption of well-

founded fear.   8 C.F.R. § 1208.13(b)(1)(i).   The agency must

provide a reasoned basis for finding that changed country

conditions rebut the presumption.   Niang v. Mukasey, 511

F.3d 138, 148-49 (2d Cir. 2007).

    Given that Bacuku alleged that he suffered past

persecution by the Communist Party and the Socialist Party

because of his support for the Democratic Party, the agency

did not err in determining that the election of the

Democratic Party to power in Albania in 2005 constituted a

fundamental change in circumstances rebutting Bacuku’s fear

of future persecution on account of a protected ground based

on his past persecution.   See 8 C.F.R. § 1208.13(b)(1);

Hoxhallari v. Gonzales, 468 F.3d 179, 187 (2d Cir. 2006).

    In addition, to the extent that Bacuku claimed a well-

founded fear of future persecution separate from his claim


                              3
of past persecution, the agency did not err in determining

that Bacuku failed to establish a well-founded fear of

future persecution based on his testimony that he may

associate with the Christian Democratic Party if returned to

Albania and evidence that his brother had been attacked

because of his support for the Christian Democratic Party.

Bacuku conceded that he was not a member of the Christian

Democratic Party, he did not have information that anyone,

other than his brother, had been harmed due to membership in

that party, he did not know of any candidate for the

Christian Democratic Party who had faced any problems, and

he had not been politically active in the United States.

Additionally, Bacuku did not provide any background

materials indicating that members of the Christian

Democratic Party have been targeted or suffered harm.     See

Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005)

(holding that a fear is not objectively reasonable if it

lacks “solid support” in the record and is merely

“speculative at best.”).

    However, the BIA abused its discretion by denying

humanitarian asylum without addressing all of the past

persecution Bacuku suffered.   Bacuku claimed that he and his


                               4
family suffered harm under the former Communist government,

he was arrested and tortured by the secret police under the

rule of the Socialist Party on three separate occasions

between 1997 and 2003, and he continued to suffer leg, hip,

back, and head injuries as well as post traumatic stress

disorder and major depression as a result of his

persecution.   The only stated justification for the agency’s

denial of humanitarian asylum was that Bacuku had remained

in Albania and actively participated politically long after

the fall of the Communist government in 1991.   Given that

the agency presumed credibility and assumed, arguendo, that

Bacuku had suffered past persecution, it erred by addressing

only the harm suffered by Bacuku under the Communist regime

in denying humanitarian asylum, relying on Bacuku’s

continued residence in Albania after the fall of the

Communist Party and his active political participation, and

failing to address whether the arrests and torture Bacuku

suffered due to that political participation, when coupled

with the previous harm he suffered, rose to a level of

severity warranting humanitarian asylum and whether he

demonstrated that he had long lasting physical and mental

effects of his persecution.   See 8 C.F.R.

§ 1208.13(b)(1)(iii)(A); Kone v. Holder, 596 F.3d 141, 152
                              5
(2d Cir. 2010) (providing that humanitarian asylum may be

granted to applicants who suffered an atrocious form of

persecution and established long-lasting effects of the

harm, or who may suffer “other serious harm upon their

return” that is not related to a protected ground); Ke Zhen

Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir.

2001) (finding that the BIA abuses its discretion if it

fails to consider the record as a whole and fails to address

all factors relevant to petitioner’s claim).

    For the foregoing reasons, the petition for review is

GRANTED in part and DENIED in part, and REMANDED to the

agency for further proceedings consistent with this opinion.

                           FOR THE COURT:
                           Catherine O’Hagan Wolfe, Clerk




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