     14-4590
     Jushi v. Lynch
                                                                                  BIA
                                                                             Sichel, IJ
                                                                         A097 485 962
                           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
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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
TO 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 Thurgood Marshall United
 3   States Courthouse, 40 Foley Square, in the City of New York,
 4   on the 21st day of June, two thousand sixteen.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            ROBERT D. SACK,
 9            GERARD E. LYNCH,
10                 Circuit Judges.
11   _____________________________________
12
13   GJOVALIN JUSHI,
14            Petitioner,
15
16                    v.                                       14-4590
17                                                             NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                  Aleksander Boleslaw Milch, Hebrew
24                                    Immigrant Aid Society, New York,
25                                    New York.
26
27   FOR RESPONDENT:                  Benjamin C. Mizer, Principal
28                                    Deputy Assistant Attorney General;
29                                    Cindy S. Ferrier, Assistant
30                                    Director; Joseph A. O’Connell,
31                                    Attorney, Office of Immigration
32                                    Litigation, United States
33                                    Department of Justice, Washington,
34                                    D.C.
 1         UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   is DENIED.

 5         Petitioner    Gjovalin       Jushi,       a    native    and      citizen   of

 6   Albania, seeks review of a December 3, 2014, decision of the

 7   BIA affirming the May 10, 2012, decision of an Immigration

 8   Judge   (“IJ”)      denying      Jushi’s        application          for   asylum,

 9   withholding    of     removal,     and       relief    under      the   Convention

10   Against Torture (“CAT”), and denying in the first instance

11   Jushi’s motion to remand.            In re Gjovalin Jushi, No. A097

12   485   962   (B.I.A.    Dec.   3,    2014),          aff’g   No.    A097    485    962

13   (Immig. Ct. N.Y. City May 10, 2010).                  We assume the parties’

14   familiarity with the underlying facts and procedural history

15   in this case.

16         We have reviewed the IJ’s decision as supplemented by

17   the BIA.     See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d

18   Cir. 2005).      The applicable standards of review are well

19   established.     See Li Yong Cao v. U.S. Dep’t of Justice, 421

20   F.3d 149, 156 (2d Cir. 2005).

21   Asylum, Withholding of Removal, and CAT Relief

22         The agency reasonably found that, although Jushi had

23   suffered persecution in Albania on account of his membership

                                              2
 1   in the Democratic Party (“DP”), the Government had rebutted

 2   the resulting presumption of a well-founded fear of future

 3   persecution.      The Government may rebut the presumption of a

 4   well-founded fear of future persecution arising from past

 5   persecution by showing a fundamental change in conditions in

 6   the country in which the asylum applicant suffered past

 7   persecution such that the applicant’s fear of persecution is

 8   no longer well founded.        8 C.F.R. § 1208.13(b)(1)(i)(A); see

 9   also Lecaj v. Holder, 616 F.3d 111, 115 (2d Cir. 2010).                   The

10   presumption may be rebutted if, in the applicant’s country,

11   the offending government has been overthrown and no longer

12   wields influence, the new leadership does not “harbor the

13   same animosities as the old,” or human rights practices have

14   improved.       In re N-M-A, 22 I & N Dec. 312, 320-21 (B.I.A.

15   1998).      A   perfunctory    finding      of   changed     conditions   is

16   sufficient      “where   (as   [in   Albania])        changed   conditions

17   evidently prevail in a country that is the subject of an

18   appreciable proportion of asylum claims (and, as a result,

19   we can safely assume that IJs have developed considerable

20   expertise related to that country’s current conditions).”

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

22        The agency did not err in concluding that, at the time

23   of   Jushi’s      2010   hearing,        conditions     in    Albania     had

                                          3
 1   fundamentally changed since he last suffered harm in 2001

 2   such     that    he    no    longer       had    a    well-founded      fear   of

 3   persecution.1        See id. at 185-88 & n.4.             The IJ acknowledged

 4   that the U.S. State Department’s Country Reports on Human

 5   Rights Practices issued between 1998 and 2001 indicated that

 6   the Albanian government, led by the Socialist Party (“SP”),

 7   conducted       politically        motivated     arrests     and   perpetrated

 8   numerous acts of violence against DP members during the

 9   period Jushi suffered harm.                The IJ reasonably found that,

10   in   contrast,       the    2009    and   2010   Country     Reports    did    not

11   reflect the continuation of that violence, and, in fact,

12   stated that there were no reports of politically motivated

13   killings, disappearances, or prisoners during the reporting

14   years.     Furthermore, Jushi admitted that the 2005 elections

15   “were calm” and that the DP had won elections in both 2005

16   and 2009.

17          Contrary to Jushi’s argument, the IJ did not err in

18   relying on the 2009 and 2010 Country Reports rather than the

19   affidavit       of    Dr.   Bernd    Fischer,        an   expert   on   Albania,

20   particularly given that the affidavit discussed conditions



     1 Although Jushi’s application asserted that he was arrested
     in 2002 and subjected to a “rough interrogation,” he did not
     testify as to that arrest or interrogation and thus, as the
     IJ did, we treat his 2001 arrest as the last incident of
     harm suffered in Albania.
                                               4
 1   through the beginning of 2008 only and thus was not as

 2   current as the Country Reports.                    See Xiao Ji Chen v. U.S.

 3   Dep’t    of    State,       471    F.3d    315,    341-42     (2d   Cir.    2006).

 4   Furthermore, at Jushi’s 2010 merits hearing, Dr. Fischer

 5   admitted      that    the    DP’s    assumption       of    power   in   2005   had

 6   “mitigate[d] the circumstances to a certain extent,” and

 7   failed   to    provide       any    specific       examples    to   support     his

 8   conclusory         assertion       of     continued        political     violence.

 9   Accordingly, the agency did not err in finding a fundamental

10   change in conditions in Albania such that Jushi no longer

11   had a well-founded fear of persecution.                      See Jian Hui Shao

12   v. Mukasey, 546 F.3d 138, 171-72 (2d Cir. 2008) (noting that

13   the Court does not “attempt to resolve conflicts in record

14   evidence,      a     task   largely       within    the     discretion     of   the

15   agency”).

16       Jushi’s argument that there is a pattern or practice of

17   persecution against DP members in Albania fails for two

18   reasons.      First, he did not argue a pattern or practice of

19   persecution before the agency.                 See Lin Zhong v. U.S. Dep’t

20   of Justice, 480 F.3d 104, 122 (2d Cir. 2006).                          Second, the

21   agency’s conclusion that there has been a fundamental change

22   in conditions such that DP supporters are not regularly

23   targeted      for     political         reasons    necessarily      precludes     a

                                                5
 1   finding of systemic persecution of DP supporters.                  See 8

 2   C.F.R. § 1208.13(b)(1)(i)(A).          Because the agency reasonably

 3   concluded that Jushi did not have a well-founded fear of

 4   persecution on account of his DP membership, it did not err

 5   in denying asylum, withholding of removal, and CAT relief

 6   because all three claims were based on the same factual

 7   predicate.     See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d

 8   Cir. 2006).2

 9   Motion to Remand

10       “A   motion   to   remand   that     relies    on   newly   available

11   evidence is held to the substantive requirements of a motion

12   to reopen.”    Li Yong Cao, 421 F.3d at 156.            A movant seeking

13   a remand to submit new evidence must “present material,

14   previously     unavailable   evidence        and   that   evidence,   if

15   credited,     [must]   establish       the   [movant’s]    prima   facie

16   eligibility for asylum.”        Id. at 158.        The BIA did not err

17   in concluding that Jushi failed to establish his prima facie

18   eligibility for asylum and related relief, i.e., a realistic


     2
       The BIA erred in finding CAT relief waived. The IJ denied
     CAT relief based on Jushi’s failure to satisfy the burden for
     asylum and thus his challenge to the IJ’s denial of asylum
     necessarily included a challenge to the denial of CAT relief.
     Nevertheless, it would be futile to remand to correct the
     BIA’s error because the agency’s findings as to asylum were
     dispositive of the CAT claim. See Xiao Ji Chen, 471 F.3d at
     339.

                                        6
 1   chance of obtaining that relief.                  See Jian Hui Shao, 546

 2   F.3d at 168.

 3         The   BIA     acknowledged           that   Jushi’s   new     evidence

 4   demonstrated that the SP won the 2013 elections in Albania,

 5   that the relationship between the SP and DP remained tense,

 6   that police had arrested a DP member, and that there were

 7   incidents      of     violence        surrounding       the       elections.

 8   Nevertheless,       the    BIA    reasonably       determined     that   this

 9   evidence did not establish Jushi’s prima facie eligibility

10   for asylum because it did not describe police harassment,

11   arrests, and murders of DP members such as existed at the

12   time police targeted Jushi from 1998 to 2001.                      In fact,

13   Jushi’s evidence described the 2013 elections as “generally

14   peaceful” and “calm,” aside from a shootout, in which a SP

15   member was killed and a DP candidate injured.                 Moreover, the

16   one   reported    arrest     of   a   DP    member   occurred   after    that

17   individual’s involvement in a physical altercation.

18         Furthermore, contrary to Jushi’s contention, his wife’s

19   letter did not demonstrate that the police continued to

20   threaten Jushi.           She stated that unknown individuals had

21   threatened her on account of Jushi’s political activities,

22   but failed to provide any dates or details regarding those

23   threats.    See id. at 172 (finding no error in the BIA’s

                                            7
 1   conclusion   that   it   could    not   infer   a   possibility   of

 2   persecution from reports of persecution that lack details).

 3       Accordingly, because Jushi’s evidence did not show that

 4   the police had resumed targeting DP members for arrest,

 5   harassment, and murder, the BIA reasonably concluded that

 6   Jushi had not established his prima facie eligibility for

 7   relief and thus did not abuse its discretion in denying his

 8   motion to remand.   See Li Yong Cao, 421 F.3d at 156.

 9       For the foregoing reasons, the petition for review is

10   DENIED.

11                                    FOR THE COURT:
12                                    Catherine O’Hagan Wolfe, Clerk
13
14
15




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