09-2307-ag
Gashi v. Holder
                                                                                BIA
                                                                             Bain, IJ
                                                                        A098 283 805


                   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 29 th day of June, two thousand ten.

PRESENT:
         JON O. NEWMAN,
         ROBERT A. KATZMANN,
         PETER W. HALL,
                Circuit Judges.
____________________________________

FATMIR GASHI,
         Petitioner,
                  v.                                               09-2307-ag
                                                                          NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL
         Respondent.
___________________________________

FOR PETITIONER:         Glenn H. Bank, New York, New York.
FOR RESPONDENT:         Michael F. Hertz, Deputy Assistant Attorney
                        General, Civil Division; Carl H. McIntyre,
                        Assistant Director; T. Bo Stanton, Attor-
                        ney, Office of Immigration Litigation,
                        Civil Division, 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

DENIED.

     Petitioner Fatmir Gashi, a native of Yugoslavia and a

citizen of Kosovo, seeks review of a May 6, 2009, order of the

BIA reversing the July 13, 2006, decision of Immigration Judge

(“IJ”) Terry Bain granting Gashi’s application for asylum.           In

re Fatmir Gashi, No. A098 283 805 (B.I.A. May 6, 2009), rev’g

No. A098 283 805 (Immig. Ct. N.Y. City July 13, 2006).               We

assume the parties’ familiarity with the underlying facts and

procedural history in this case.

     Under the circumstances of this case, we review only the

decision of the BIA. 1    See Yan Chen v. Gonzales, 417 F.3d 268,

271 (2d Cir. 2005).      The applicable standards of review are

well-established.      See   8 U.S.C. § 1252(b)(4)(B); see also

Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d

Cir. 2007); Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d

Cir. 2008).




     1
      We note, however, that the IJ’s decision contains no discussion of
the Government’s substantial evidence offered to rebut the presumption
of future persecution.    The IJ stated only, “The Government has not
rebutted this presumption.”

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       In its decision, the BIA found that even assuming Gashi

had suffered past persecution, any presumption of a likelihood

of future persecution had been rebutted.                     When an applicant

for asylum has been found to have suffered past persecution,

the presumption of a well-founded fear of future persecution

may   be   rebutted       if   the    BIA    finds    that   there    has   been    a

fundamental change in circumstances such that the applicant’s

life or freedom would no longer be threatened in the country

of removal on account of one of the five statutory grounds.

8 C.F.R. §§ 1208.16(b)(1)(i)(A), 1208.13(b)(1)(i)(A). The BIA

has elaborated that the presumption may be rebutted if, in the

applicant’s        country,       the      offending    government      has    been

overthrown and no longer wields influence, the new leadership

does not “harbor the same animosities as the old,” or human

rights practices have improved. See In re N-M-A, 22 I & N Dec.

312, 320-21 (BIA 1998); In re O-Z-, 22 I & N Dec. 23, 26-27

(BIA 1998).        We find no error in the agency’s conclusion that

the   government       successfully          rebutted    any    presumption        of

persecution because the background materials and testimony

showed     that:    (1)    U.N.      and    Kosovar    forces   are    “able    and

willing” to protect the legal rights of Albanians; and (2)

Gashi’s family remained unharmed in Kosovo.                     See Alibasic v.


                                           -3-
Mukasey, 547 F.3d 78, 86-87 (2d Cir. 2008).

       As   an    initial   matter,       we     find    unavailing      Gashi’s

assertion that because the BIA agreed with the government’s

position, it necessarily failed to conduct an independent

review of his claims.

       Gashi     also   argues    that    the    BIA’s    finding     regarding

changed country conditions in Kosovo is erroneous because the

BIA ignored evidence in the record demonstrating that Kosovo

continues to suffer from ethnic tension between Serbs and

Albanians.        However, the     BIA    did not dispute that ethnic

tension continues to plague Kosovo, but noted that most of the

violence is now directed at ethnic Serbs and that Kosovar

authorities have actively pursued police officers for their

roles in the 2004 riots.           Moreover, the BIA reasonably found

that    Gashi’s     claim    of    a     well-founded      fear     of    future

persecution was diminished by the fact that his family members

remained in Kosovo unharmed.             See Melgar de Torres v. Reno,

191 F.3d 307, 313 (2d Cir. 1999).               In light of these findings,

the BIA reasonably determined that the government met its

burden of proof.

       Although Gashi argues that the BIA placed undue weight on

the Department of State country conditions reports, we accord


                                       -4-
deference to the agency’s evaluation of documentary evidence.

See Xiao Ji Chen v. United States Dep’t of Justice, 471 F.3d

315, 324 (2d Cir. 2006).       Gashi’s argument that the BIA failed

to   consider    his   testimony       and   documentary    evidence      is

similarly unavailing, as the record does not compellingly

suggest that the BIA ignored any material evidence that he

submitted in support of his claim.               See Jian Hui Shao v.

Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).                 To the extent

Gashi argues the BIA failed to conduct the requisite minimal

level    of   analysis,   we   find    the   BIA’s   discussion   of    both

Gashi’s past persecution and the increased efforts on the part

of Kosovar authorities to apprehend those responsible for the

2004 riots sufficient to enable us to conduct our review.                See

Alibasic, 547 F.3d at 86-87.

        Finally, Gashi’s argument that the BIA violated his due

process rights by taking judicial notice of changed country

conditions in Kosovo is without merit.               The BIA did not take

notice of any documents outside the administrative record,

but rather determined that the country conditions evidence

submitted before the IJ did not demonstrate a basis for an

objectively reasonable fear of future persecution.                     See 8

C.F.R. § 1003.1(d)(3); Alibasic, 547 F.3d at 85.              Because the


                                      -5-
BIA’s     decision      was   supported       by   substantial      evidence,

inasmuch as Gashi’s claim for withholding of removal and CAT

relief share the same factual predicate as his claim for

asylum, the agency’s finding is fatal to those claims as

well.     See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

2006).

       For the foregoing reasons, the petition for review is

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

that    the   Court       previously    granted    in    this     petition   is

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

petition is DISMISSED as moot.               Any pending request for oral

argument      in   this    petition     is   DENIED     in   accordance    with

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

Circuit Local Rule 34.1(b).

                                       FOR THE COURT:
                                       Catherine O’Hagan Wolfe, Clerk




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