                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-22-2004

Jashanica v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2027




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      ___________

                                      No. 03-2027
                                      ___________


                                 AGIM JASHANICA;
                                ARDITA SYLEJMANI,

                                            Petitioners

                                              v.

                            JOHN ASHCROFT,
                 ATTORNEY GENERAL OF THE UNITED STATES,

                                           Respondent


                                      ___________

                      On Petition for Review of a Decision by the
                            Board of Immigration Appeals
                       (No. A77-544-131 and No. A77-544-132)
                                      ___________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  December 16, 2004


                   Before: NYGAARD and GARTH, Circuit Judges.
                            and POLLAK,* District Judge.




       *Honorable Louis H. Pollak, Senior District Judge for the United States District
Court for the Eastern District of Pennsylvania, sitting by designation.
                                (Filed December 22, 2004)

                                       ___________

                               OPINION OF THE COURT
                                    ___________


NYGAARD, Circuit Judge.

              Agim Jashanica and Ardita Sylejmani (“Petitioners”) petition this Court for

review of a final order of removal by the Board of Immigration Appeals. We have

jurisdiction pursuant to 8 U.S.C. § 1252 and will deny the petition.

                                             I.

              Petitioners are ethnic Albanian natives of Kosovo. On February 10, 1999

they entered the United States without valid entry documents and for that reason were

charged as removable by the former-INS. Petitioners conceded removability but sought

asylum, withholding of removal, and protection under the Convention Against Torture,

alleging that, because of their Muslim faith, they were persecuted by Serbs from 1996 to

1998.

              In support of their claim, Sylejmani testified before the Immigration Judge

that the Serbian army murdered her father and Jashanica testified that he was beaten by

the Serbian police. Finding Petitioners not credible because of the lack of corroboration

concerning the murder of Sylejmani’s father, the Immigration Judge denied their claims

for relief and ordered their removal from the United States. Petitioners did eventually

                                             2
obtain what purported to be a death certificate for Sylejmani’s father and subsequently

appealed to the Board by filing a motion to reopen and remand based on that newly-

acquired piece of evidence. On March 12, 2003, the Board denied Petitioners’ motion

and dismissed their appeal. It held that even if Petitioners had credibly established a

claim of past persecution, due to changed country conditions, they no longer possessed a

well-founded fear of persecution. In the absence of such fear, the Board explained,

Petitioners were required to demonstrate that they were entitled to a humanitarian grant of

asylum under 8 C.F.R. § 208.13(b)(1)(iii). The Board found Petitioners had not done so

and rejected their claims for relief. This petition followed.

                                             II.

              Whether Petitioners are statutorily eligible for asylum is a question of fact,

which we review under the substantial evidence standard. Gao v. Ashcroft, 299 F.3d 266,

272 (3d Cir. 2002). Under this standard, we uphold the findings of the Board if they are

“supported by reasonable, substantial, and probative evidence on the record considered as

a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (quotation omitted). We

reverse those findings only when “the evidence not only supports a contrary conclusion,

but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483–84 (3d Cir. 2001) (citing Elias-

Zacarias, 504 U.S. at 481). Similarly, we will disturb the discretionary decisions of the

Board only if they are “arbitrary, irrational, or contrary to law.” Guo v. Ashcroft, 386

F.3d 556, 562 (3d Cir. 2004).



                                              3
                                              III.

              The Attorney General may grant asylum to those qualifying as refugees.

Abdille, 242 F.3d at 482 (citing 8 U.S.C. § 1158(b)(1)). Refugees are individuals who are

unwilling or unable to return to their home country “because of persecution or a well-

founded fear of persecution on account of race, religion, nationality, membership in a

particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). An applicant

who demonstrates past persecution is entitled to a rebuttable presumption of a well-

founded fear of future persecution. 8 C.F.R. § 208.13(b)(1). That presumption is

rebutted and a grant of asylum generally will be denied when the government proves there

has been a “fundamental change in circumstances” in the applicant’s country such that the

applicant no longer has a well-founded fear of persecution there. Id. Even in the event of

rebuttal, however, the Board may still award a humanitarian grant of asylum in its

discretion if the applicant demonstrates either “compelling reasons for being unwilling or

unable to return to the country arising out of the severity of the past persecution” or “a

reasonable possibility that he or she may suffer other serious harm upon removal to that

country.” Id. at § 208.13(b)(1)(iii); see In re Chen, 20 I. & N. Dec. 16 (BIA 1989)

(“However, there may be cases where the favorable exercise of discretion is warranted for

humanitarian reasons even if there is little likelihood of future persecution.”). 1




1.       As Petitioners have not appealed the Board’s denial of withholding of removal
and protection under the Convention Against Torture, we need not address those issues.

                                               4
              The Board found that even if Petitioners had established past persecution,

any presumption of a well-founded fear of future persecution had been rebutted because

of fundamental changes in Kosovo. Petitioners do not challenge this finding of fact and

we hold it to be supported by substantial evidence. The Board took administrative notice

of the Country Report on Human Rights Practices in Kosovo published by the

Department of State, which notes that persecution by Serbs in Kosovo has ceased, as the

United Nations is now in control. This report, and the fact that Petitioners have family

remaining in Kosovo without incident, provide substantial evidence to uphold the Board’s

finding that the presumption of a well-founded fear has been rebutted.

              Finding no well-founded fear of persecution, the Board declined to award a

humanitarian grant of asylum as a matter of discretion. It is this exercise of discretion

that Petitioners challenge. The Board held that while the one-time beating of Jashanica

and the murder of Sylejmani’s father may have constituted persecution, those incidents

were not compelling enough to merit asylum in the absence of a well-founded fear of

persecution. See 8 C.F.R. § 208.13(b)(1)(iii)(A). It held, moreover, that Petitioners failed

to show a reasonable possibility that they would suffer other serious harm if returned to

Kosovo. See 8 C.F.R. § 208.13(b)(1)(iii)(B). For these reasons, the Board declined to

award Petitioners humanitarian asylum. Regardless of whether we agree with the Board’s

exercise of its discretion, given existing case law concerning the humanitarian grant of

asylum, we cannot say the Board’s decision was an abuse of its discretion. See In re



                                              5
Chen, 20 I. & N. Dec. at 16 (granting asylum for humanitarian reasons where applicant

had been beaten, detained, and forced into hard labor from the age of eight, leaving him

with permanent physical and emotional wounds).




                                            IV.

              We are not unsympathetic to Petitioners’ plight. Nevertheless, the Board

did not abuse its discretion by denying their request for a humanitarian grant of asylum.

We will deny the petition for review.




                                             6
