     17-1484
     Prenga v. Sessions
                                                                                    BIA
                                                                               Straus, IJ
                                                                           A070 449 551
                               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 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
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 20th day of August, two thousand eighteen.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            BARRINGTON D. PARKER,
 9            DEBRA ANN LIVINGSTON,
10                 Circuit Judges.
11   _____________________________________
12
13   GJOVALIN PRENGA,
14            Petitioner,
15
16                        v.                                     17-1484
17                                                               NAC
18   JEFFERSON B. SESSIONS III,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                      Alan Michael Strauss, Franklin,
24                                        ME.
25
26   FOR RESPONDENT:                      Chad A. Readler, Acting Assistant
27                                        Attorney General; Leslie McKay,
28                                        Senior Litigation Counsel; Manuel
29                                        A. Palau, Trial Attorney, Office
30                                        of Immigration Litigation, United
31                                        States Department of Justice,
32                                        Washington, DC.
 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    Prenga,       a   stateless         native   of

 6   Albania, seeks review of an April 24, 2017, decision of the

 7   BIA affirming a January 11, 2016, decision of an Immigration

 8   Judge    (“IJ”)     finding    Prenga        removable    and    denying       his

 9   application for asylum, withholding of removal, and relief

10   under the Convention Against Torture (“CAT”).                   In re Gjovalin

11   Prenga, No. A 070 449 551 (B.I.A. Apr. 24, 2017), aff’g No. A

12   070 449 551 (Immig. Ct. Hartford Jan. 11, 2016).                      We assume

13   the    parties’     familiarity       with    the   underlying        facts    and

14   procedural history in this case, which we reference only as

15   necessary to explain our decision to deny the petition.

16          Under the circumstances of this case, we have reviewed

17   both    the    IJ’s    and    BIA’s    decisions      “for      the    sake     of

18   completeness.”        Wangchuck v. Dep’t of Homeland Sec., 448 F.3d

19   524, 528 (2d Cir. 2006).              We review the agency’s factual

20   findings      for   substantial       evidence      and   we    review     legal

21   questions, including the application of law to fact, de novo.

22   Lecaj v. Holder, 616 F.3d 111, 114 (2d Cir. 2010).

                                            2
1    I.    Removability

2          The Immigration and Nationality Act (“INA”) provides

3    that “[a]ny alien who at any time knowingly has encouraged,

4    induced, assisted, abetted, or aided any other alien to

5    enter or to try to enter the United States in violation of

6    law is inadmissible.”   8 U.S.C. § 1182(a)(6)(E)(i).     Prenga

7    was convicted of alien smuggling pursuant to 8 U.S.C.

8    § 1324(a)(2) and was charged as removable under 8 U.S.C.

9    § 1182(a)(6)(E)(i).

10         Although Prenga initially argued that he did not

11   knowingly aid and abet an unlawful entry, he did not

12   contest his removability after his proceedings were

13   reopened, either before the IJ or on appeal to the BIA.

14   Accordingly, he has failed to exhaust any challenge to his

15   removability.   Foster v. U.S. INS, 376 F.3d 75, 78 (2d Cir.

16   2004) (issues must generally be raised before the BIA in

17   order to be preserved for judicial review).

18   II.   Asylum

19         The INA provides that an offense under 8 U.S.C.

20   § 1324(a)(2) is an aggravated felony, “except in the case

21   of a first offense for which the alien has affirmatively

22   shown that the alien committed the offense for the purpose

                                   3
 1   of assisting, abetting, or aiding only the alien’s spouse,

 2   child, or parent (and no other individual) to violate a

 3   provision of this chapter.”   8 U.S.C. § 1101(a)(43)(N).

 4   Because Prenga was convicted under 8 U.S.C. § 1324(a)(2)(A)

 5   for aiding and abetting the illegal entry of his cousin and

 6   her friend rather than a spouse, child, or parent, the

 7   aggravated felony provision applies and bars asylum.       8

 8   U.S.C. § 1158(b)(2)(A)(ii), (B)(i).    This aggravated felony

 9   provision applies to offenses under 8 U.S.C. § 1324(a)(2)

10   without regard to whether the offense is a misdemeanor or a

11   felony.   See 8 U.S.C. § 1101(a)(43)(N).

12   III. Withholding of Removal

13       An applicant for withholding of removal must show a

14   likelihood that his or her life or freedom will be

15   threatened on account of the applicant’s “race, religion,

16   nationality, membership in a particular social group, or

17   political opinion.”   8 U.S.C. § 1231(b)(3)(A).   A past

18   threat to life or freedom creates a presumption of a future

19   threat.   8 C.F.R. § 1208.16(b)(1).   However, this

20   presumption may be rebutted if the Government shows by a

21   “preponderance of the evidence” that “[t]here has been a

22   fundamental change in circumstances such that the

                                   4
1    applicant’s life or freedom would not be threatened.”      8

2    C.F.R. § 1208.16(b)(1)(i)(A), (ii).   The agency must

3    conduct an individualized analysis that takes into account

4    the applicant’s particular circumstances and any evidence

5    offered that contradicts country conditions reports.      See

 6   Lecaj, 616 F.3d at 115-16.

 7       Substantial evidence supports the IJ’s conclusion that

 8   there has been a fundamental change in Albania.     The

 9   country reports, particularly the State Department’s 2006

10   Asylum Profile, reflected a fundamental change in Albania’s

11   government since the end of the communist regime, stating

12   that there are high levels of religious tolerance and no

13   evidence of retribution against those who have returned to

14   Albania after fleeing the country during communism. See

15   Hoxhallari v. Gonzales, 468 F.3d 179, 188 (2d Cir. 2006)

16   (holding that “there is no doubt that there has been a

17   fundamental change in the political structure and

18   government of Albania, beginning in 1990”).   Prenga argues

19   that the Government had the burden of proving that

20   conditions have fundamentally changed within the military

21   specifically.   However, the country conditions reports

22   stating that the military is subject to civilian control

                                   5
 1   suggest that there has also been a fundamental change in

 2   the military, and there is no evidence in the record

 3   suggesting that the military continues to discriminate

 4   based on religion or political opinion.      Moreover, it is

 5   unlikely that conditions in the military are relevant to

 6   Prenga’s individual circumstances because there is no

 7   evidence that he would be forced to serve in the military

 8   again or that he would be targeted for escaping a military

 9   prison during the communist era.      See Lecaj, 616 F.3d at

10   115-16 (allowing reliance on State Department reports, as

11   long as agency also considers “any contrary or

12   countervailing evidence”).

13   IV.   CAT Relief

14         An applicant for CAT relief must “establish that it is

15   more likely than not that he . . . would be tortured if

16   removed to the proposed country of removal.”       8 C.F.R.

17   §§ 1208.16(c)(2), 1208.17(a).       The agency must consider

18   “all evidence relevant to the possibility of future

19   torture,” including “[e]vidence of past torture,” evidence

20   regarding the possibility of internal relocation,

21   “[e]vidence of gross, flagrant, or mass violations of human

22   rights,” and “[o]ther relevant information regarding

                                     6
 1   conditions in the country of removal.”    8 C.F.R. §

 2   1208.16(c)(3)(i)-(iv).    However, evidence of past torture

 3   does not create a presumption that an applicant will be

 4   tortured in the future.    Ramsameachire v. Ashcroft, 357

 5   F.3d 169, 185 (2d Cir. 2004) (“A CAT claim focuses solely

 6   on the likelihood that the alien will be tortured . . .

 7   regardless of the alien’s . . . past experiences.      Unlike

 8   an asylum claim, the CAT claim . . . requires a showing

 9   with respect to future, rather than past, treatment.”).

10       Prenga argues that his past mistreatment amounted to

11   torture and that he is likely to face torture again because

12   there is no evidence that he was pardoned for his military

13   conviction and escape.     However, the 2006 Asylum Profile

14   reported that the post-communist Albanian government has not

15   targeted returning Albanians who formerly opposed or fled

16   communist rule, and none of the other evidence in the record

17   contradicts this.   Prenga did not submit letters from his

18   parents in Albania or other evidence that the government is

19   personally interested in him.      Given the lack of evidence

20   that similarly situated individuals have been arrested or

21   mistreated, Prenga’s fear of torture is too speculative to

22   warrant relief.   See Mu Xiang Lin v. U.S. Dep’t of Justice,

                                    7
 1   432 F.3d 156, 160 (2d Cir. 2005) (petitioner must establish

 2   that    someone   in   his   particular   circumstances   would   more

 3   likely than not face torture); cf. Jian Xing Huang v. U.S.

 4   INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In the absence of

 5   solid support in the record for [petitioner’s] assertion that

 6   he will be subjected to [future harm], his fear is speculative at

 7   best.”).

 8          For the foregoing reasons, the petition for review is

 9   DENIED.    As we have completed our review, Prenga’s motion to

10   stay removal is DENIED as moot.        Petitioner’s pending request

11   for oral argument is DENIED in accordance with Federal Rule

12   of Appellate Procedure 34(a)(2), and Second Circuit Local

13   Rule 34.1(b).

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




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