     15-167
     Maliqi v. Lynch
                                                                                       BIA
                                                                                 Loprest, IJ
                                                                               A201 105 870
                            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 TO 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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   14th day of December, two thousand sixteen.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            ROBERT D. SACK,
 9            GERARD E. LYNCH,
10                 Circuit Judges.
11   _____________________________________
12
13   LIRIDON MALIQI,
14            Petitioner,
15
16                     v.                                            15-167
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Sokol Braha, New York, New York;
24                                       Adrian Spirollari, Brooklyn, New
25                                       York.
26
27   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
28                                       Assistant Attorney General; Cindy S.
29                                       Ferrier, Assistant Director;
30                                       Jessica E. Burns, Trial Attorney,
31                                       Office of Immigration Litigation,
32                                       United States Department of Justice,
33                                       Washington, D.C.
1        UPON DUE CONSIDERATION of this petition for review of a

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

3    ORDERED, ADJUDGED, AND DECREED that the petition for review is

4    DENIED.

5        Petitioner Liridon Maliqi, a native and citizen of Kosovo,

6    seeks review of a December 23, 2014, decision of the BIA

7    affirming a February 11, 2013, decision of an Immigration Judge

8    (“IJ”) denying him asylum, withholding of removal, and relief

9    under the Convention Against Torture (“CAT”).          In re Liridon

10   Maliqi, No. A201 105 870 (B.I.A. Dec. 23, 2014), aff’g No. A201

11   105 870 (Immig. Ct. N.Y. City Feb. 11, 2013).          We assume the

12   parties’ familiarity with the underlying facts and procedural

13   history in this case.

14       We have reviewed the IJ’s and the BIA’s decisions “for the

15   sake of completeness.”   Wangchuck v. Dep’t of Homeland Sec.,

16   448 F.3d 524, 528 (2d Cir. 2006).         The applicable standards of

17   review are well established.     See 8 U.S.C. § 1252(b)(4)(B); see

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

19       The agency did not err in finding that Maliqi failed to

20   establish   past   persecution       or   a   well-founded   fear   of

21   persecution in Kosovo.   Maliqi asserted that a family in Kosovo

22   had threatened his life because they blamed his father for the


                                      2
1    Serbian military’s killing of one of their relatives during the

2    Kosovo war.

3        A valid past persecution claim can be based on harm other

4    than threats to life or freedom, including non-life-threatening

5    violence and physical abuse, Beskovic v. Gonzales, 467 F.3d 223,

6    226 n.3 (2d Cir. 2006), but the harm must be sufficiently severe,

7    rising above “mere harassment,” Ivanishvili v. U.S. Dep’t of

8    Justice, 433 F.3d 332, 341 (2d Cir. 2006).       In evaluating a past

9    persecution claim, the agency must consider the harm suffered

10   in the aggregate.       Poradisova v. Gonzales, 420 F.3d 70, 79-80

11   (2d Cir. 2005).

12       The agency did not err in finding that Maliqi’s experiences

13   in Kosovo did not constitute persecution.         Maliqi’s claim of

14   past persecution rested on unfulfilled threats directed at him

15   and his brothers, and an incident after he left Kosovo, in which

16   two unidentified men grabbed and threatened his sister in the

17   family’s home.    These incidents, even considered cumulatively,

18   did not constitute persecution against Maliqi.          See Ci Pan v.

19   U.S. Att’y General, 449 F.3d 408, 412-13 (2d Cir. 2006)

20   (recognizing     that   unfulfilled    threats   do   not   amount   to

21   persecution); Tao Jiang v. Gonzales, 500 F.3d 137, 141 (2d Cir.

22   2007) (providing that an asylum applicant cannot establish

23   persecution based on harm to a family member unless the
                                        3
1    applicant was “within the zone of risk when the family member

2    was harmed, and suffered some continuing hardship after the

3    incident.”).

4         Absent    past    persecution,    an    alien   may       establish

5    eligibility for asylum by demonstrating a well-founded fear of

6    future persecution.      8 C.F.R. § 1208.13(b)(2).       To establish

7    a well-founded fear of persecution, an applicant must show that

8    he   subjectively     fears   persecution   and   that   his    fear   is

9    objectively reasonable.       Ramsameachire v. Ashcroft, 357 F.3d

10   169, 178 (2d Cir. 2004).

11        The agency reasonably determined that Maliqi’s fear of

12   persecution in Kosovo was not objectively reasonable.             Maliqi

13   and his younger brothers remained unharmed in Kosovo from 2001,

14   when the family who sought revenge first threatened them, until

15   the end of 2010, when Maliqi left Kosovo for the United States.

16   During that time, Maliqi and his brothers lived in the family’s

17   home, walked to school daily, and otherwise lived openly without

18   taking any safety precautions other than avoiding the family

19   who sought revenge against them.       As Maliqi was able to avoid

20   harm for almost a decade without altering his daily life, the

21   agency did not err in finding that his fear of persecution was

22   not objectively reasonable.       See Jian Xing Huang v. U.S. INS,

23   421 F.3d 125, 129 (2d Cir. 2005) (“In the absence of solid
                                        4
1    support in the record . . . , [an applicant’s] fear is

2    speculative at best”).

3        Maliqi argues that the IJ misconstrued the record when he

4    found that Maliqi and his brothers were last threatened in 2005

5    and that the IJ ignored the assault on his sister in finding

6    that his fear was not objectively reasonable.             There is no

7    indication that the IJ ignored this evidence.         The IJ correctly

8    noted that the last direct threat to Maliqi (as opposed to word

9    of mouth through his cousin) occurred in 2005.             And the IJ

10   acknowledged the assault on Maliqi’s sister in 2011, during

11   which two unidentified men accosted her in the family home

12   before fleeing without harming her when her parents returned

13   home.   The IJ did not err in concluding that, despite this

14   incident, Maliqi’s ability to live unharmed in Kosovo for six

15   years after the last direct threat to him was dispositive of

16   his claim of an objectively reasonable fear of persecution.

17   See Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) (“Where

18   there   are   two   permissible   views   of    the     evidence,   the

19   factfinder’s    choice    between     them     cannot     be   clearly

20   erroneous.”); see also Melgar de Torres, 191 F.3d 307, 313 (2d

21   Cir. 1999).

22       Alternatively, the IJ reasonably concluded that Maliqi

23   failed to demonstrate a well-founded fear of persecution
                                       5
1    because he did not establish that the government of Kosovo was

2    unable or unwilling to protect him.    See Pan v. Holder, 777 F.3d

3    540, 543 (2d Cir. 2015).      Although police were unable to act

4    on the threats Maliqi’s family reported in the early 2000s,

5    Maliqi did not demonstrate that the same conditions prevailed

6    at the time of his hearing in 2012.         He did not know whether

7    his family reported the assault on his sister in 2011, and the

8    2010 U.S. State Department Human Rights Report on Kosovo stated

9    that the European Union Rule of Law Mission in Kosovo had

10   deployed police and other resources to assist the government,

11   the   Police   Inspectorate   of   Kosovo    investigated    civilian

12   complaints against the police, and domestic and international

13   human rights groups operated freely in the country.         The report

14   gave no indication that police are unable or unwilling to

15   protect citizens in circumstances such as Maliqi’s.

16         Because Maliqi failed to demonstrate a well-founded fear

17   of persecution, the agency did not err in denying him asylum,

18   withholding of removal, and CAT relief because all three claims

19   were based on the same factual predicate.      See Paul v. Gonzales,

20   444 F.3d 148, 156-57 (2d Cir. 2006).        Accordingly, the Court

21   need not consider the agency’s alternative determination that

22   Maliqi failed to demonstrate that the harm he fears is on account

23   of a protected ground.   See INS v. Bagamasbad, 429 U.S. 24, 25
                                        6
1    (1976) (“As a general rule courts and agencies are not required

2    to make findings on issues the decision of which is unnecessary

3    to the results they reach.”).

4        For the foregoing reasons, the petition for review is

5    DENIED.   Petitioner’s request for oral argument is DENIED in

6    accordance with Federal Rule of Appellate Procedure 34(a)(2),

7    and Second Circuit Local Rule 34.1(b).

 8
 9                                FOR THE COURT:
10                                Catherine O=Hagan Wolfe, Clerk




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