    12-4631 (L)
    Boraj v. Holder
                                                                                    BIA
                                                                       Gordon-Uruakpa, IJ
                                                                            A087 560 858
                       UNITED STATES COURT OF APPEALS
                           FOR THE SECOND CIRCUIT
                               SUMMARY ORDER
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         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 18th day of March, two thousand fourteen.

    PRESENT:
             JOSÉ A. CABRANES,
             GERARD E. LYNCH,
             CHRISTOPHER F. DRONEY,
                  Circuit Judges.
    _____________________________________

    QAMIL BORAJ,
             Petitioner,

                      v.                                   12-4631 (Lead);
                                                           13-728 (Con)
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:               Michael P. DiRaimondo, DiRaimondo &
                                  Masi, LLP, Melville, NY.

    FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
                                  General; Leslie McKay, Assistant
                                  Director; Sara J. Bergene, Trial
                                  Attorney, Office of Immigration
                                  Litigation, United States Department
                                  of Justice, Washington, D.C.
     UPON DUE CONSIDERATION of these petitions for review of

decisions of the Board of Immigration Appeals (“BIA”), it is

hereby ORDERED, ADJUDGED, AND DECREED that the petition for

review in Dkt. No. 12-4631 (L) is GRANTED in part and DENIED

in part and the petition for review in Dkt. No. 13-728 (Con)

is DISMISSED as moot.

     Petitioner Qamil Boraj, a native and citizen of

Albania, seeks review of a November 14, 2012, order of the

BIA, denying withholding of removal and reversing the April

7, 2011, decision of an Immigration Judge (“IJ”), which

granted asylum and relief under the Convention Against

Torture (“CAT”), In re Qamil Boraj, No. A087 560 858 (B.I.A.

Nov. 14, 2012), rev’g No. A087 560 858 (Immig. Ct. N.Y. City

Apr. 7, 2011), and a February 15, 2013, decision of the BIA

denying his timely motion to reopen, In re Qamil Boraj, No.

A087 560 858 (B.I.A. Feb. 15, 2013).   We assume the parties’

familiarity with the underlying facts and procedural history

in this case.

I.   Petition for Review in Dkt. No. 12-4631 (L)

     Under the circumstances of this case, we review only

the decision of the BIA.   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); Yanqin

Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

                              2
    A.    Economic Persecution

    The BIA correctly concluded that Boraj had not

established that his termination from the police department

constituted a severe economic disadvantage amounting to

economic persecution.     In Guan Shan Liao v. U.S. Dep’t of

Justice, 293 F.3d 61(2d Cir. 2002), we noted that “an asylum

applicant must offer some proof that he suffered a

‘deliberate imposition of substantial economic

disadvantage.’” Id. at 70 (quoting Chan v. INS, 195 F. 3d

198 (4th Cir. 1998)).     There, Guan failed to meet that

standard because he offered “[n]o testimony or other

evidence . . . regarding [his] income in China, his net

worth at the time of the fines, or any other facts that

would make it possible[] to evaluate his personal financial

circumstances in relation to the fines.” Id. Here, Boraj

failed to present any testimony or evidence bearing on his

personal financial situation or his subsequent private

sector employment from which to assess the economic impact

of his termination.     His evidentiary proffer was therefore

insufficient to sustain the IJ’s finding of severe economic

harm.    See Guan Shan Liao, 293 F.3d at 70 (“Absent this sort

of proof, we cannot assess whether or not the fines

constituted a substantial disadvantage to him.”).

                                 3
    B. Asylum & Withholding of Removal Due to Fear of Gangs

    Because the IJ erroneously granted Boraj asylum based

on his claim of economic persecution, the IJ did not address

Boraj’s alternative claim that he was eligible for asylum or

withholding of removal on the basis of his fear of

persecution by gangs. Rather than remand the matter for

further fact finding by the IJ, the BIA denied relief based

on its own determinations that Albanian authorities were not

unwilling or unable to control the gang members Boraj

feared, and that Boraj was targeted by the gangs as criminal

retaliation for his actions against them as a police

officer, rather than on a account of his membership in a

particular social group. Such independent fact-finding by

the BIA violates 8 C.F.R. § 1003.1(d)(3)(iv), which provides

that “[e]xcept for taking administrative notice of commonly

known facts such as current events or the contents of

official documents, the Board will not engage in factfinding

in the course of deciding appeals.” See also Xian Tuan Ye v.

Dep’t of Homeland Sec., 446 F.3d 289, 296 (2d Cir. 2006)

(“[T]he BIA may only review the IJ’s factual findings to

determine whether they are clearly erroneous, and may not

engage in fact-finding, other than taking administrative


                             4
notice of commonly known facts”); 8 C.F.R. § 1003.1(d)(3)(i)

(“The Board will not engage in de novo review of findings of

fact determined by an immigration judge.”).

     The BIA’s fact-finding here is particularly troubling

because it ignored several of the IJ’s conclusions including

(1) that Boraj’s alleged persecutor, Adrian Malasi,

successfully bribed a prosecutor and secured release even

though he was arrested for threatening Boraj’s life at

gunpoint, (2) that four of the six other police officers in

his unit had been murdered in Albania, and (3) that Boraj

credibly testified that gang leader Lester Aliko had also

sought to recruit Boraj into Aliko’s criminal organization.

Those facts might support a conclusion that Malasi and Aliko

targeted Boraj for his perceived membership in a political

or social group, and the BIA erred by not allowing the IJ to

conduct this contextual analysis in the first instance.

    In sum, although we express no view regarding the

ultimate merits of Boraj’s claim, we vacate the BIA’s denial

of asylum and withholding of removal on the basis of Boraj’s

fear of persecution by gangs with instruction to remand to

the IJ for consideration of this alternative ground for

asylum.   See   8 C.F.R. § 1003.1(d)(3)(i), (iv); Xian Tuan

Ye, 446 F.3d at 296.
                               5
    Because substantial time has elapsed since the November

2010 merits hearing, the parties should be afforded the

opportunity to supplement the record with recent evidence of

country conditions on remand.       See Secaida-Rosales v.

I.N.S., 331 F.3d 297, 312-13 (2d Cir. 2003) (holding that

because a significant amount of time had passed since the

IJ’s initial ruling, the record should be supplemented with

evidence of current country conditions on remand), overruled

in part on other grounds by Xiu Xia Lin v. Mukasey, 534 F.3d

162 (2d Cir. 2008).

    C.   CAT Relief

    The BIA concluded that the IJ erred in granting CAT

relief because Boraj had not established that Albanian

authorities would acquiesce in his prospective torture by

gang members.     See Khouzam v. Ashcroft, 361 F.3d 161, 168

(2d Cir. 2004).    As with the BIA’s treatment of the record

supporting Boraj’s claim for asylum, this finding was

predicated on an improper de novo review of the IJ’s factual

determinations.     See 8 C.F.R. § 1003.1(d)(3)(i), (iv); Xian

Tuan Ye, 446 F.3d at 296.    The IJ concluded that Boraj had

established governmental acquiescence because Malasi

successfully bribed the prosecutor’s office to release him

after he was arrested for threatening Boraj’s life at
                                6
gunpoint and the State Department’s Country Reports

indicated that “police corruption and impunity persisted in

Albania.”   The BIA substituted its own view of the country

conditions evidence for that of the IJ based solely on an

abstract review of the country conditions evidence without

regard to Boraj’s credible testimony concerning Malasi’s

bribes to the prosecutor’s office and the murder of four of

the six other police officers in his unit.   As we noted in

Delgado v. Mukasey, 508 F.3d 702(2d Cir. 2007), the BIA

commits error when it “deal[s] with [a claim of] fear of

future persecution entirely in the abstract.” Id. at 706.

II. Petition for Review in Dkt. No. 13-728 (Con)

    Because we have already concluded that Boraj should be

permitted to supplement the record with current evidence of

country conditions as a consequence of the partial grant of

his petition in No. 12-4631, his challenge to the BIA’s

subsequent denial of reopening is moot.   See Arizonans for

Official English v. Arizona, 520 U.S. 43, 67 (1997).

    For the foregoing reasons, the petition for review in

Dkt. No. 12-4631 (L) is DENIED in part, as it relates to the

BIA’s economic persecution finding, and GRANTED in part, as

it relates to the BIA’s denial of asylum, withholding of

removal, and CAT relief due to Boraj’s fear of persecution
                              7
by gangs.   The petition for review in Dkt. No. 13-728 (Con)

is DISMISSED as moot.   Boraj’s pending request for oral

argument in these petitions 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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