         09-5079-ag
         Gjoni v. Holder
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A099 592 066
                                                                               A099 592 067
                            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 17 th day of December, two thousand               ten.
 5
 6       PRESENT:
 7                ROGER J. MINER,
 8                JOSEPH M. McLAUGHLIN,
 9                JOSÉ A. CABRANES,
10                    Circuit Judges.
11       _______________________________________
12
13       FRANC GJONI, ALME GJONI
14                Petitioners,
15
16                         v.                                   09-5079-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONERS:              Andrew P. Johnson, New York, New
24                                     York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Greg D. Mack, Senior
28                                     Litigation Counsel; Shahrzad Baghai,
1                           Trial Attorney, Office of
2                           Immigration Litigation, United
3                           States Department of Justice,
4                           Washington, D.C.
5
6        UPON DUE CONSIDERATION of this petition for review of a

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

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

9    is DENIED.

10       Franc Gjoni and Alme Gjoni, 1 natives and citizens of

11   Albania, seek review of a November 12, 2009 order of the BIA

12   affirming the February 1, 2008 decision of Immigration Judge

13   (“IJ”) Barbara A. Nelson, which denied their applications

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

15   Convention Against Torture (“CAT”).   In re Gjoni, Nos. A099

16   592 066/067 (B.I.A. Nov. 12, 2009), aff’g Nos. A099 592

17   066/067 (Immig. Ct. N.Y. City Feb. 1, 2008).     We assume the

18   parties’ familiarity with the underlying facts and

19   procedural history in this case.

20       Under the circumstances of this case, we review the

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

22   v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).     The

23   applicable standards of review are well-established.     See


           1
              This order refers solely to Franc Gjoni, as his
       wife Alme was listed as a derivative applicant in his
       application.

                                  2
1    Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008);

2    Shu Wen Sun v. BIA, 510 F.3d 377, 379 (2d Cir. 2007).

3        The regulations require IJs to exercise the Attorney

4    General’s discretion to deny asylum to applicants who

5    establish eligibility based solely on past persecution when

6    the government establishes a fundamental change in

7    circumstances sufficient to rebut the presumption of a well-

8    founded fear of persecution.     8 C.F.R. § 1208.13(b)(1).     The

9    agency must provide a reasoned basis for a finding that

10   changed country conditions rebut the presumption of a well-

11   founded fear of persecution where the petitioner suffered

12   past persecution.     Niang v. Mukasey, 511 F.3d 138, 148-49

13   (2d Cir. 2007).     In other words, “[a] showing of past

14   persecution sets up a rebuttable presumption of a well-

15   founded fear of future persecution, which is overcome only

16   if a preponderance of the evidence establishes that a change

17   in circumstances in the applicant’s country of nationality

18   has occurred such that the applicant’s fear is no longer

19   well-founded.”    Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 148

20   (2d Cir. 2003).

21       In this case, there has been an “indisputable

22   historical event” in Albania, Gjoni’s country of


                                     3
1    nationality.    Namely, the Socialist Party that persecuted

2    Gjoni is no longer in power and has not been since July

3    2005.    See Hoxhallari v. Gonzales, 468 F.3d 179, 187-88 (2d

4    Cir. 2006) (per curiam).    Furthermore, the agency relied on

5    both changed country circumstances and specific findings

6    based on record evidence in determining that Gjoni did not

7    have a well-founded fear of persecution.     There is no

8    evidence that the new Albanian government is unable or

9    unwilling to protect Gjoni from the individuals who may

10   still wish to harm him.    See Ivanishvili v. U.S. Dep’t of

11   Justice, 433 F.3d 332, 342 (2d Cir. 2006).

12       Additionally, it is not improper for the agency to

13   consider an applicant’s claim of a well-founded fear of

14   persecution diminished where, as here, similarly-situated

15   family members remain in his or her native country unharmed.

16   See Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir.

17   1999).    Accordingly, substantial evidence supports the

18   agency’s finding that there has been a fundamental change in

19   circumstances in Albania, rebutting the presumption of a

20   well-founded fear of future persecution, and, moreover, that

21   Gjoni does not have an objectively reasonable fear of future

22   persecution, distinct from his past persecution.


                                    4
1        Because Gjoni was unable to show the objective

2    likelihood of persecution needed to make out an asylum

3    claim, he was necessarily unable to meet the higher standard

4    required to succeed on a claim for withholding of removal.

5    See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006);

6    Gomez v. INS, 947 F.2d 660, 665 (2d Cir. 1991).

7    Furthermore, given the change in country conditions, Gjoni

8    has not demonstrated that he would be tortured, with the

9    government’s consent or acquiescence, in Albania.    See 8

10   C.F.R. § 1208.17.

11       Although in certain circumstances, an IJ may grant

12   asylum to an applicant who has established past persecution,

13   but not a well-founded fear of future persecution, see 8

14   C.F.R. § 1208.13(b)(1)(iii); Wu Zheng Huang v. INS, 436 F.3d

15   89, 96 (2d Cir. 2006), this so-called “humanitarian asylum”

16   has been reserved for applicants who have suffered

17   “atrocious forms of persecution” or who may suffer “other

18   serious harm upon their return.”   See 8 C.F.R.

19   § 1208.13(b)(1)(iii); Matter of Chen, 20 I. & N. Dec. 16, 19

20   (B.I.A. 1989).   We have found that to merit a grant of

21   humanitarian asylum on the basis of severe past persecution,

22   an applicant must demonstrate “long-lasting physical or

23   mental effects of his persecution.”   Omaro Jalloh v.
                                  5
1    Gonzales, 498 F.3d 148, 152 (2d Cir. 2007).   In this case,

2    the IJ reasonably concluded that while Gjoni’s past

3    persecution, including his arrests, detentions, and beatings

4    while detained which led to his hospitalization upon

5    release, was unfortunate, it was not so severe that he

6    merited a discretionary grant of humanitarian asylum,

7    considering the substantial changes in Albania.   See

8    Hoxhallari, 468 F.3d at 184–85.

9        Gjoni does suffer from depression and post-traumatic

10   stress disorder; however, the IJ and the BIA did not err

11   when finding that these conditions alone were not enough to

12   merit the grant of humanitarian asylum.   Moreover, there was

13   no medical evidence to demonstrate a causal connection

14   between Gjoni’s past persecution and seizure disorder.     See

15   Matter of Chen, 20 I. & N. Dec. 16, 19 (B.I.A. 1989).     The

16   IJ did not abuse her discretion in denying humanitarian

17   asylum.   See 8 U.S.C. § 1252(b)(4)(D); Hoxhallari, 468 F.3d

18   at 184; Wu Zheng Huang, 436 F.3d at 96.

19       For the foregoing reasons, the petition for review is

20   DENIED.   As we have completed our review, any stay of

21   removal that the Court previously granted in this petition

22   is VACATED, and any pending motion for a stay of removal in

23   this petition is DISMISSED as moot. Any pending request for
                                   6
1   oral argument in this petition is DENIED in accordance with

2   Federal Rule of Appellate Procedure 34(a)(2), and Second

3   Circuit Local Rule 34.1(b).

4                                 FOR THE COURT:
5                                 Catherine O’Hagan Wolfe, Clerk
6
7




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