                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-14-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2272




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IMG-193                                                    NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                              Nos. 07-2272 & 07-3814


                                 GUARA KUCI
                               MARIGLEN SPAHIU,
                                              Petitioners

                                          v.

              ATTORNEY GENERAL OF THE UNITED STATES;
          SECRETARY OF DEPARTMENT OF HOMELAND SECURITY


                      On Petition for Review of an Order of the
                           Board of Immigration Appeals
                    (Agency Nos. A95-101-441 & A56-134-599)
                  Immigration Judge: Honorable Rosalind K. Malloy


                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  October 15, 2008

          Before: SLOVITER, STAPLETON AND COWEN, Circuit Judges


                         (Opinion filed: November 14, 2008)



                                      OPINION


PER CURIAM

      Guara Kuci and Mariglen Spahiu, wife and husband, are natives and citizens of

Albania who entered the United States in 2003. They were charged as being removable
based on their entry into this country without being admitted or paroled. See Immigration

and Nationality Act (“INA”) § 212(a)(6)(A)(i) [8 U.S.C. § 1182(a)(6)(A)(i)].1 The

petitioners conceded removability and applied for asylum, withholding of removal, and

protection under the United Nations Convention Against Torture (“CAT”).2 In support of

their claims, Kuci testified that she regularly received phone calls encouraging her to go

to Italy to have “a greater and brighter future.” Then, in February 2003, individuals

known for trafficking in women twice attempted to kidnap Kuci. As the would-be

kidnappers fled after the second attempt, they threatened Kuci, saying “this is not the end

of it.” Kuci and her family reported both incidents to the police. Continuing to fear for

her safety, Kuci remained in her home until May 2003, when she departed for the United

States.

          The Immigration Judge (“IJ”) denied the petitioners’ applications for asylum,

finding that Kuci’s experiences did not rise to the level of persecution because the

kidnapping attempts were unsuccessful. The IJ also concluded that Kuci did not face

future persecution because her marriage and age took her outside the targeted social

group.

          In their appeal to the Board of Immigration Appeals (“BIA”), the petitioners

defined the particular social group to which Kuci belongs as “young women who have



   1
     Spahui was also charged with assisting an alien in illegally entering the United
States. See INA § 212(a)(6)(E)(i) [8 U.S.C. § 1182(a)(6)(E)(i)].
   2
       Spahiu’s claims are derivative of his wife’s.

                                                2
been approached or threatened with kidnapping, forced [prostitution] or killing by human

traffickers that the government of Albania either cannot or will not control.” The BIA

dismissed the appeal. The Board accepted Kuci’s testimony as credible and concluded

that her experiences did rise to the level of persecution. But, relying in part on the

standard for social group membership set forth in In re A-M-E, 24 I. & N. Dec. 69 (BIA

2007), the BIA concluded that the petitioners’ particular social group definition was too

broad because it was based “solely on . . . the person’s gender and contact, no matter how

minimal and apparently, without regard to any particular age, with human traffickers.”

       In April 2007, the petitioners filed in this Court a petition for review of the BIA’s

decision. (C.A. No. 07-2272). The petitioners also filed a motion for reconsideration

with the BIA, alleging that because In re A-M-E was decided while their appeal was

pending before the Board, the standard set forth in that case was inappropriately applied

to them. The BIA rejected this retroactivity argument, reasoning that In re A-M-E did not

change the definition of “particular social group” in any way relevant to the petitioners’

case. The petitioners filed another petition for review. (C.A. No. 07-3814). The cases

have been consolidated for all purposes.

       We have jurisdiction over the petitions pursuant to INA § 242(a)(1) [8 U.S.C.

§ 1252(a)(1)]. Because the BIA rendered its own decision on the merits, we review only

the BIA’s, not the IJ’s, decision.3 See Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002).


   3
    We review the denial of reconsideration for abuse of discretion. See Borges v.
Gonzales, 402 F.3d 398, 404 (3d Cir. 2005). The petitioners, however, have not raised
any challenge to the denial of their motion for reconsideration.

                                              3
An applicant for asylum has the burden of establishing that he is unable or unwilling to

return to his home country “because of [past] persecution or a well-founded fear of future

persecution on account of race, religion, nationality, membership in a particular social

group, or political opinion[.]” INA § 101(a)(42)(A) [8 U.S.C. § 1101(a)(42)(A)]; see 8

C.F.R. § 208.13(a); Abdille v. Ashcroft, 242 F.3d 477, 482 (3d Cir. 2001). Significantly,

the BIA stated that it “accept[ed] Ms. Kuci’s testimony as credible” and that the

attempted kidnappings were “sufficiently ‘menacing and concrete’ to rise to the level of

persecution under the Act.” Therefore, the issue before us requires us to focus on

whether an applicant’s proffered “particular social group” is cognizable under INA §

101(a)(42)(A), a question of law subject to de novo review. See Escobar v. Gonzales,

417 F.3d 363, 365 (3d Cir. 2005) (citing Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir.

2004)).

       At various points in their brief, the petitioners touch on the “particular social

group” definition. For example, they state that the “lead petitioner’s testimony and her

asylum applications show evidence of the persecution and the discrimination she

personally endured, only because she was a young Albanian woman who was targeted by

. . . individuals that the government could not and was not able [to] control.” Later, the

petitioners note that the BIA’s rejection of their “particular social group” definition “was

challenged . . . in [the] Motion to Reconsider . . . which stressed [that] . . . young women

in general are a particular group that has characteristics which are indisputable and not

subject to change.” Finally, the petitioners assert that the BIA’s description of Kuci’s


                                              4
definition as “simply too broad” is “obviously erroneous, especially when you consider

the fact that women in Albania are being kidnapped and threatened to be sold as

prostitutes to this day, no matter their age.” But the petitioners have failed to elaborate on

these statements, none of which explains how the BIA erred in its legal analysis. See

Lunderstadt v. Colafella, 885 F.2d 66, 78 (3d Cir. 1989) (recognizing that conclusory

statements do not preserve an issue for appeal).

       The government recognizes that this court has held “that future persecution based

upon membership in a particular social group may be shown where the group is narrow

and distinctive and motivated by treatment suffered in the past.” Government Br. at 27

n.5, citing Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330 (3d Cir. 2008); Lukwago v.

Ashcroft, 329 F.3d 157, 171-72 (3d Cir. 2003). Nevertheless, the government argues that

the social group proffered by petitioners in this case is both too broad and too generalized.

In support of its rejection of the proposed “social group” definition, the BIA relied on our

decision in Lukwago v. Ashcroft, 329 F.3d 157, 172 (3d Cir. 2003) and our holding “that

the ‘particular social group’ must exist independently of the persecution suffered by the

applicant for asylum.” App. at 5. The proposed social group does not satisfy this criteria.

       For the foregoing reasons, we will deny the petition for review.4




   4
    The petitioners’ motion for leave to expand the record is denied. See INA
242(b)(4)(A) [8 U.S.C. § 1252(b)(4)(A)]; Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330,
340 (3d Cir. 2008) (“Our review is confined solely to the administrative record”).

                                              5
