     14-2209
     Mustafaj v. Lynch
                                                                                       BIA
                                                                                  Wright, IJ
                                                                               A093 409 829
                              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   8th day of June, two thousand fifteen.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            BARRINGTON D. PARKER,
 9            DEBRA ANN LIVINGSTON,
10                 Circuit Judges.
11   _____________________________________
12
13   ALBAN MUSTAFAJ,
14            Petitioner,
15
16                       v.                                          14-2209
17                                                                   NAC
18
19   LORETTA E. LYNCH, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                     Sokol Braha, New York, New York.
25
26   FOR RESPONDENT:                     Benjamin C. Mizer, Acting Assistant
27                                       Attorney General, Civil Division;
28                                       Blair T. O’Connor, Assistant
29                                       Director; John F. Stanton, Trial
 1                                Attorney, Office of Immigration
 2                                Litigation, United States
 3                                Department of Justice, Washington,
 4                                D.C.
 5
 6       UPON DUE CONSIDERATION of this petition for review of a

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

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

 9   DISMISSED in part, and DENIED in part.

10       Petitioner   Alban   Mustafaj,   a   native   of   the   former

11   Yugoslavia and citizen of Kosovo, seeks review of a June 4, 2014,

12   decision of the BIA affirming a September 18, 2012, decision

13   of an Immigration Judge (“IJ”) denying his application for

14   asylum, withholding of removal, and relief under the Convention

15   Against Torture (“CAT”).     In re Alban Mustafaj, No. A093 409

16   829 (B.I.A. Jun. 4. 2014), aff’g No. A093 409 829 (Immig. Ct.

17   N.Y. City Sept. 18, 2012).    We assume the parties’ familiarity

18   with the underlying facts and procedural history in this case.

19       We have reviewed both the BIA’s and IJ’s decisions.         See

20   Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).    The

21   applicable standards of review are well established.         See 8

22   U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,

23   513 (2d Cir. 2009).

                                     2
1        Mustafaj challenges the IJ’s pretermission of his untimely

2    asylum application, arguing that the IJ committed legal error

3    and violated due process by determining that his credible

4    testimony, alone, was insufficient to establish his date of

5    entry into the United States.     We generally lack jurisdiction

6    to review this determination, but we retain jurisdiction to

7    review colorable constitutional claims and questions of law.

8    8 U.S.C. §§ 1158(a)(2)(B) and (a)(3), 1252(a)(2)(D); see also

9    Barco-Sandoval v. Gonzales, 516 F.3d 35, 40-41 (2d Cir. 2008)

10   (providing claim must be colorable).        Even where testimony is

11   credible, the agency may require corroboration.       Diallo v. INS,

12   232 F.3d 279, 285 (2d Cir. 2000).

13       Mustafaj submitted evidence in an effort to establish a

14   March 2006 entry date: a November 2005 application to open a

15   bank account in Kosovo, airline ticket stubs that did not list

16   the year they were used, and an affidavit from someone repeating

17   what Mustafaj had told him.       It was not error for the IJ to

18   consider   this   evidence   in       assessing   whether   Mustafaj

19   established his date of entry, and in determining that this

20   evidence did not establish entry in or after March 2006.         Id.


                                       3
1         Mustafaj also challenges the weight the IJ accorded this

2    documentary evidence.    The weight attributed to evidence is a

3    factual determination that we lack jurisdiction to review.

4    Boluk v. Holder, 642 F.3d 297, 304 (2d Cir. 2011).

5         Turning to withholding of removal, an alien is eligible for

6    such relief if it is more likely than not that his “life or

7    freedom would be threatened in [the country of removal] because

8    of   [his]   race,   religion,   nationality,    membership   in   a

9    particular social group, or political opinion.”           8 U.S.C.

10   § 1231(b)(3)(A).     An alien who demonstrates past persecution

11   benefits from a presumption that his life or freedom would be

12   threatened in the future.         8 C.F.R. § 1208.16(b)(1)(i).

13   “[P]ersecution is the infliction of suffering or harm upon those

14   who differ on the basis of a protected statutory ground,” and

15   it “does not encompass mere harassment.”        Ivanishvili v. U.S.

16   DOJ, 433 F.3d 332, 341 (2d Cir. 2006).     The agency reasonably

17   concluded that the incidents of past harm did not rise to the

18   level of persecution.

19        Mustafaj’s claim stems from his employment as a bodyguard

20   for Ramush Haradinaj, the leader of the Alliance for the Future

21   of Kosovo, and his belief that supporters of the opposition
                                      4
1    party, the Democratic Party of Kosovo, seek to harm him.

2    Mustafaj testified that he received threatening phone calls and

3    letters, he was pulled over by members of the Democratic Party

4    and was told he would have been killed if he were not with his

5    mother, and someone shot a gun at his home.   These threatening

6    incidents, however, do not constitute past persecution.     Huo

7    Qiang Chen v. Holder, 773 F.3d 396, 406 (2d Cir. 2014) (“threats

8    of persecution, no matter how credible, do not demonstrate past

9    persecution”).

10       Absent a presumption based on past persecution, it was

11   Mustafaj’s burden to show that it is more likely than not that

12   he would be persecuted on account of his political opinion if

13   he returned to Kosovo.   8 C.F.R. § 1208.16(b)(2).   The agency

14   did not err in finding that Mustafaj did not meet his burden.

15   Mustafaj testified that he quit his job as a bodyguard in 2004,

16   and the last time he was threatened by anyone was in 2004.

17   Although Mustafaj argues that the 2004 death of one of

18   Haradinaj’s bodyguards shows that he, too, is in danger of harm,

19   Mustafaj testified that he did not know whether the death was

20   an accident and he did not know why this bodyguard was killed.

21   It is therefore not clear that Mustafaj would be subject to a
                                    5
1    similar fate simply because he had worked as a bodyguard in 2004.

2    See 8 C.F.R. § 1208.16(b)(2) (providing an applicant can

3    establish     eligibility   for   withholding     of   removal   by

4    demonstrating a pattern or practice of persecution of a group

5    of similarly situated persons).       In addition, the death of one

6    of eleven of Haradinaj’s bodyguards does not establish that it

7    is “more likely than not” that Mustafaj, too, will be similarly

8    persecuted.    Id.

9        For the foregoing reasons, the petition for review is

10   DISMISSED in part, and DENIED in remaining part.        As we have

11   completed our review, any stay of removal that the Court

12   previously granted in this petition is VACATED, and any pending

13   motion for a stay of removal in this petition is DISMISSED as

14   moot.   Any pending request for oral argument in this petition

15   is DENIED in accordance with Federal Rule of Appellate Procedure

16   34(a)(2), and Second Circuit Local Rule 34.1(b).

17                                 FOR THE COURT:
18                                 Catherine O=Hagan Wolfe, Clerk
19




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