         09-1392-ag
         Bushati v. Holder
                                                                                       BIA
                                                                                 Abrams, IJ
                                                                               A099 682 922
                                  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.


 1            At a stated term of the United States Court of                 Appeals
 2       for the Second Circuit, held at the Daniel Patrick                 Moynihan
 3       United States Courthouse, 500 Pearl Street, in the                 City of
 4       New York, on the 18 th day of February, two thousand               ten.
 5
 6       PRESENT:
 7                           ROBERT D. SACK,
 8                           PETER W. HALL,
 9                           DEBRA ANN LIVINGSTON,
10                                    Circuit Judges.
11
12       _______________________________________
13
14       GERT BUSHATI,
15                Petitioner,
16
17                           v.                                 09-1392-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _______________________________________
23
24       FOR PETITIONER:                  Linda L. Foster, Fresh Meadows, New
25                                        York.
26
1    FOR RESPONDENT:        Tony West, Assistant Attorney
2                           General, Civil Division; Barry J.
3                           Pettinato, Assistant Director;
4                           Katharine E. Clark, Trial Attorney,
5                           Office of Immigration Litigation,
6                           United States Department of Justice,
7                           Washington, D.C.
8
9        UPON DUE CONSIDERATION of this petition for review of a

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

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

12   is DENIED.

13       Gert Bushati, a native and citizen of Albania, seeks

14   review of a March 10, 2009, order of the BIA affirming the

15   March 8, 2007, decision of Immigration Judge (“IJ”) Steven

16   R. Abrams, which denied his application for asylum,

17   withholding of removal, and relief under the Convention

18   Against Torture (“CAT”).     In re Gert Bushati, No. A099 682

19   922 (B.I.A. Mar. 10, 2009), aff’g No. A099 682 922 (Immig.

20   Ct. N.Y. City Mar. 8, 2007).     We assume the parties’

21   familiarity with the underlying facts and procedural history

22   in this case.

23       As an initial matter, we have jurisdiction under

24   8 U.S.C. § 1252(a)(1) to review the denial of relief in

25   “asylum-only” proceedings.     See Kanacevic v. INS, 448 F.3d

26   129, 134 (2d Cir. 2006).     We review the decision of the IJ


                                     2
1    as supplemented by the BIA.     See Yan Chen v. Gonzales, 417

2    F.3d 268, 271 (2d Cir. 2005).       The applicable standards of

3    review are well-established.     See Bah v. Mukasey, 529 F.3d

4    99, 110 (2d Cir. 2008); Manzur v. U.S. Dep't of Homeland

5    Sec., 494 F.3d 281, 289 (2d Cir. 2007).

6        Contrary to Bushati’s argument, substantial evidence

7    supports the agency’s finding that he did not sufficiently

8    establish that his attackers were government agents or

9    individuals the government is unable or unwilling to

10   control.    See Matter of Acosta, 19 I. & N. Dec. 211, 222

11   (BIA 1985); accord Ivanishvili v. U.S. Dep’t of Justice, 433

12   F.3d 332, 342 (2d Cir. 2006).       Bushati presented evidence

13   that he was attacked by men wearing masks, but that his

14   attackers had no other physical indicia of being police

15   officers.    The affidavit corroborating these attacks states

16   that the attackers’ identity and the reasons for their

17   actions could not be discerned.       Therefore, the agency

18   reasonably found such evidence did not establish that his

19   attackers were Albanian police officers, and the record does

20   not compel the contrary conclusion.       See 8 U.S.C.

21   § 1252(b)(4)(B) (noting that a court of appeals may overturn

22   administrative findings of fact only if any reasonable


                                     3
1    factfinder would be compelled to conclude to the contrary).

2        Because Bushati failed to challenge the IJ’s finding

3    that he did not establish a pattern or practice of

4    persecution of ethnic Chams in Albania before the BIA, we

5    find that he has failed to exhaust his administrative

6    remedies. See Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004).

7    We also find that because Bushati failed to establish past

8    persecution, he is entitled to neither a presumption of a

9    well-founded fear of persecution, see 8 C.F.R.

10   § 1208.13(b)(1), nor humanitarian asylum, see Matter of

11   Chen, 20 I. & N. Dec. 16, 19 (BIA 1989).       Moreover, the

12   agency reasonably found based on the evidence before it that

13   any well-founded fear Bushati may have is undermined by the

14   fact that his family remains in Albania unharmed.       See

15   Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999).

16       Finally, we are without authority to consider the

17   evidence Bushati submitted to the Court.       See 8 U.S.C.

18   § 1252(b)(4)(A) (“[T]he court of appeals shall decide the

19   petition only on the administrative record on which the

20   order of removal is based.”).       Additionally, we decline to

21   remand to the BIA for consideration of this evidence where,

22   inter alia, Bushati failed to submit it to the agency.         See


                                     4
1    Xiao Xing Ni v. Gonzales, 494 F.3d 260, 269 (2d Cir. 2007).

2        Because Bushati was unable to show the objective

3    likelihood of persecution needed to make out an asylum

4    claim, he was necessarily unable to meet the higher standard

5    required to succeed on a claim for withholding of removal.

6    See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

7    Bushati has failed to challenge sufficiently the agency’s

8    denial of his application for CAT relief before this Court.

9    See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545

10   n.7 (2d Cir. 2005).

11       For the foregoing reasons, the petition for review is

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

13   removal that the Court previously granted in this petition

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

15   this petition is DISMISSED as moot. Any pending request for

16   oral argument in this petition is DENIED in accordance with

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

18   Circuit Local Rule 34(b).

19                               FOR THE COURT:
20                               Catherine O’Hagan Wolfe, Clerk
21
22
23




                                   5
