         08-1458-ag
         Djokic v. Holder
                                                                                       BIA
                                                                                    Bain, IJ
                                                                               A079 319 095
                             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 29 th day of March, two thousand ten.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                         Chief Judge,
 9                GUIDO CALABRESI,
10                DEBRA ANN LIVINGSTON,
11                         Circuit Judges.
12       _______________________________________
13
14       JASMINA DJOKIC,
15                Petitioner,
16
17                          v.                                  08-1458-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., 1 UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       ____________________________________________________________
23
24
25

                       1
                   Pursuant to Federal Rule of Appellate Procedure
             43(c)(2), Attorney General Eric. H. Holder, Jr., is
             automatically substituted for former Attorney General
             Michael B. Mukasey as respondent in this case.
 1   FOR PETITIONER:        Robert M. Birach, Detroit, Michigan.
 2
 3   FOR RESPONDENT:        Tony West, Assistant Attorney
 4                          General; James E. Grimes, Senior
 5                          Litigation Counsel; Janice K.
 6                          Redfern, Senior Litigation Counsel,
 7                          Office of Immigration Litigation,
 8                          United States Department of Justice,
 9                          Washington, D.C.
10
11       UPON DUE CONSIDERATION of this petition for review of a

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

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

14   is DENIED.

15       Jasmina Djokic, a native and citizen of the former

16   Yugoslavia, seeks review of a February 27, 2008 order of the

17   BIA affirming the November 28, 2006 decision of Immigration

18   Judge (“IJ”) Terry Bain, which denied her application for

19   asylum, withholding of removal, and relief under the

20   Convention Against Torture (“CAT”).   In re Jasmina Djokic,

21   No. A079 319 095 (B.I.A. Feb. 27, 2008), aff’g No. A079 319

22   095 (Immig. Ct. N.Y. City Nov. 28, 2006). We assume the

23   parties’ familiarity with the underlying facts and

24   procedural history in this case.

25       Under the circumstances of this case, we review the

26   decision of the IJ as supplemented by the BIA.   See Yan Chen

27   v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).   The



                                  2
1    applicable standards of review are well-established.

2    8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep't of

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

4        The agency determined that, although she experienced

5    past persecution, conditions in Montenegro have changed to

6    the extent that Djokic no longer has a well-founded fear of

7    persecution. 8 C.F.R. § 1208.13(b)(1) . The agency is

8    required to provide a reasoned basis for such a finding.

9    See Niang v. Mukasey, 511 F.3d 138, 148-49 (2d Cir. 2007).

10   Here, the IJ examined the record and reasonably determined

11   that Djokic’s fear of persecution was not objectively well-

12   founded, for the following reasons.    Since Montenegro

13   separated from Serbia, conditions for ethnic Albanians had

14   improved.   Although Djokic may be subject to harassment and

15   discrimination, any adverse treatment would not rise to the

16   level of persecution.    Given the IJ’s review of the record,

17   substantial evidence supports her finding that any

18   presumption of a well-founded fear of persecution was

19   successfully rebutted.    See 8 U.S.C. § 1252(b)(4)(B) ;

20   Hoxhallari v. Gonzales, 468 F.3d 179, 184 (2d Cir. 2006).

21   But see Alibasic v. Mukasey, 547 F.3d 78, 81-82, 84-87 (2d

22   Cir. 2008) (finding that the BIA erred in reversing the IJ’s

23   grant of asylum based on the same evidence).

                                    3
1        Even absent a well-founded fear of future persecution,

2    the agency may grant asylum based on the severity of past

3    persecution.       8 C.F.R. § 1208.13(b)(1)(iii)(A) (providing

4    that to be eligible for humanitarian asylum, a petitioner

5    must demonstrate “compelling reasons for being unwilling or

6    unable to return . . . [that] aris[e] out of the severity of

7    the past persecution”).       There is no abuse of discretion in

8    the BIA’s conclusion, based on the facts found by the IJ,

9    that Djokic did not endure the type of atrocious persecution

10   for which humanitarian asylum is reserved. 2     See Mirzoyan v.

11   Gonzales, 457 F.3d 217, 220 (2d Cir. 2006) (stating that

12   humanitarian asylum is reserved for “certain rare cases”);

13   Jalloh v. Gonzales, 498 F.3d 148, 151 (2d Cir. 2007) (per

14   curiam) ; Matter of Chen, 20 I. & N. Dec. 16, 19 (B.I.A.

15   1989).

16       For the foregoing reasons, the petition for review is

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

18   removal that the Court previously granted in this petition


               2
             Despite Djokic’s argument to the contrary, we do
       not find that the BIA acted ultra vires in finding her
       ineligible for humanitarian asylum. See 8 C.F.R.
       § 1003.1(d)(3)(ii) (providing that the BIA may review de
       novo “questions of law, discretion, and judgment and all
       other issues in appeals from decisions of immigration
       judges”).

                                       4
1    is VACATED, and any pending motion for a stay of removal in

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

3    oral argument in this petition is DENIED in accordance with

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

5    Circuit Local Rule 34.1(b).

 6                                 FOR THE COURT:
 7                                 Catherine O’Hagan Wolfe, Clerk
 8
 9
10




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