    09-0475-ag
    Simoni v. Holder
                                                                                  BIA
                                                                            W eisel, IJ
                                                                         A096 452 879
                        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 11 th day of February, two thousand               ten.

    PRESENT:
             DENNIS JACOBS,
                   Chief Judge,
             PIERRE N. LEVAL,
             PETER W. HALL,
                   Circuit Judges.
    _______________________________________

    Fred Simoni, a.k.a. Agim Murtez Ani,
             Petitioner,

                       v.                                  09-0475-ag
                                                           NAC
    Eric H. Holder, Jr.,
    United States Attorney General,
             Respondent.
    _______________________________________

    FOR PETITIONER:               Parker Waggaman, New York, New York.

    FOR RESPONDENT:               Tony West, Assistant Attorney
                                  General, Anh-Thu P. Mai-Windle,
                                  Senior Litigation Counsel, Lynda A.
                                  Do, Attorney, United States
                                  Department of Justice, Civil
                                  Division, Office of Immigration
                                  Litigation, Washington, D.C.
     UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
review is DENIED.

     Petitioner Fred Simoni, a native and citizen of
Albania, seeks review of the January 7, 2009 order of the
BIA affirming the December 6, 2006 decision of Immigration
Judge (“IJ”) Robert D. Weisel, denying his application for
asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Fred Simoni, No.
A096 452 879 (B.I.A. Jan. 7, 2009), aff’g No. A096 452 879
(Immig. Ct. N.Y. City Dec. 6, 2006). We assume the parties’
familiarity with the underlying facts and procedural history
of the case.

     This Court reviews the agency’s factual findings under
the substantial evidence standard. 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). We review de novo
questions of law and the application of law to undisputed
fact. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.
2008). As an initial matter, contrary to the government’s
assertion that Simoni’s challenge to the IJ’s changed
country conditions finding was unexhausted before the BIA,
the issue is considered exhausted because the BIA addressed
it. See Xian Tuan Ye v. DHS, 446 F.3d 289, 296-97 (2d Cir.
2006).

     Assuming, as did the BIA, that Simoni established he
suffered past persecution, substantial evidence supports the
agency’s determination that country conditions in Albania
have significantly changed such that Simoni did not
establish a well-founded fear of persecution. See 8 C.F.R.
§ 1208.13(b)(1)(i). Before this Court, Simoni argues,
principally, that the agency erred in relying on Hoxhallari
v. Gonzales, 468 F.3d 179 (2d Cir. 2006), in reaching its
determination because his case is factually distinguishable
from Hoxhallari. To wit, he does not have relatives who
remain in Albania and are politically active. Petitioner,
however, misreads Hoxhallari. The agency relied on the fact
that Hoxhallari’s relatives remained in Albania to support
an adverse credibility finding, not as a basis for its
alternative finding that changed circumstances in Albania

                             2
rebutted any presumption that Hoxhallari had a well-founded
fear of future persecution. Hoxhallari, 468 F.3d at 182-83.
Here, the agency properly conducted an individualized
assessment of how the Democratic Party’s victory in the 2005
and 2007 Albanian elections would affect Simoni's claim, and
reasonably concluded that Simoni did not establish a well-
founded fear of future persecution. See Niang v. Mukasey,
511 F.3d 138, 148-49 (2d Cir. 2007); see also Hoxhallari,
468 F.3d at 187 (holding that the agency need not enter
specific findings regarding changed country conditions where
“changed conditions evidently prevail in a country that is
the subject of an appreciable proportion of asylum claims,”
such as Albania). Moreover, Simoni identifies no evidence
compelling the conclusion that changed country conditions in
Albania do not negate his well-founded fear of persecution.
See Manzur, 494 F.3d at 289.

     Because Simoni was unable to show the objective
likelihood of persecution needed to make out an asylum
claim, he was necessarily unable to meet the higher standard
required to succeed on his claims for withholding of removal
and CAT relief where those claims are based on the same
factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156
(2d Cir. 2006); Kyaw Zwar Tun v. INS, 445 F.3d 554, 567 (2d
Cir. 2006). Additionally, because Simoni presented no
evidence of any long-lasting physical or mental effects of
his alleged persecution, the agency did not err in finding
that he failed to demonstrate eligibility for humanitarian
asylum pursuant to 8 C.F.R. § 1208.13(b)(1). See Jalloh v.
Gonzales, 489 F.3d 148, 151 (2d Cir. 2007); Matter of Chen,
20 I. & N. Dec. 16, 20 (B.I.A. 1989). Accordingly, the
agency’s denial of asylum was not improper.

     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(b).

                                 FOR THE COURT:
                                 Catherine O'Hagan Wolfe, Clerk




                             3
