09-2914-ag
Lushaj v. Holder
                                                                                 BIA
                                                                            Sichel, IJ
                                                                        A097 966 139
                        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.


     At a stated term of the           United States Court of Appeals
for the Second Circuit, held           at the Daniel Patrick Moynihan
United States Courthouse, 500          Pearl Street, in the City of New
York, on the 4 th day of June,         two thousand ten.

PRESENT:

         JON O. NEWMAN,
         ROBERT A. KATZMANN,
         PETER W. HALL,
                Circuit Judges.
_______________________________________

LINDITA LUSHAJ,
         Petitioner,

                   v.                                              09-2914-ag
                                                                          NAC
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
         Respondent.
_______________________________________

FOR PETITIONER:                  Howard Baker, New York, New York.

FOR RESPONDENT:                  Tony West, Asst. Atty. General, Luis
                                 E. Perez, Senior Litigation Counsel,
                                 Elizabeth D. Kurlan, Trial Atty.,
                                 Office  of   Immigration  Litigation,
                                 Civil Division, United States Depart-
                                 ment of Justice, Washington, D.C.
      UPON DUE CONSIDERATION of this petition for review of a

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

hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

review is DENIED.

      Petitioner      Lindita   Lushaj,      a    native   and    citizen      of

Albania, seeks review of a June 12, 2009, order of the BIA,

reversing the April 25, 2007, decision of Immigration Judge

(“IJ”) Helen Sichel, which had granted her application for

asylum.    In re Lindita Lushaj, No. A097 966 139 (B.I.A. June

12, 2009), rev’g No. A097 966 139 (Immig. Ct. N.Y. City Apr.

25,   2007).     We   assume    the   parties’       familiarity      with    the

underlying facts and procedural history of the case.

      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).

      As   an   initial    matter,    with       respect   to   her   claim    of

persecution on account of membership in a recognized social

group, we decline to consider Lushaj’s unexhausted arguments

that she is a member of a particular social group composed of:

(1) “young women in Albania”; (2) “women who were previously

targeted for sex-trafficking by members of the Haklaj gang and


                                      -2-
who managed to escape and avoid capture”; and (3) “teenage or

young adult females from families well-known in the town of

Tropoje to have been pro-Democratic Party sympathizers and to

have been anti-communist and anti-Socialist Party opponents.”

See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20

(2d Cir. 2007). 1         Rather, we confine our review to the legal

theory Lushaj advanced before the BIA; namely, that: (1) the

IJ    did   not   err    in   finding   that   she     was   a   member     of   the

particular social group of women whom “members of the Haklaj

gang wished to kidnap . . . and force . . . into prostitution,

at least in part to punish [their] family members for their

political activities in Albania”; and (2) she had a well-

founded     fear    of    future   persecution         based     on    an   imputed

political opinion.

       The BIA concluded that the IJ erred when she found Lushaj

to be a member of a particular social group.                          In the BIA’s

view, the IJ’s definition of Lushaj’s purported social group

was    “circular”        because   it   was    based    exclusively         on   the

persecution that its members suffered or feared.                        See Ucelo-



       1
      Before the BIA, Lushaj argued that she belonged to a group
comprised of “teenage or young adult desirable females from families
well-known in the town of Tropoje to have been pro-Democratic Party
sympathizers and to have been anti-communist and anti-Socialist Party
opponents.”   Lushaj concedes that the BIA properly found the term
“desirable” is not sufficiently particular or well-defined. See Ucelo-
Gomez v. Gonzales, 509 F.3d 70, 73 (2d Cir. 2007).

                                        -3-
Gomez, 509 F.3d at 73 (citing Matter of A-M-E- & J-G-U-, 24 I.

& N. Dec. 69, 74 (B.I.A. 2007) (holding that a social group

cannot be defined exclusively by the fact that its members

have    been      subjected         to     harm.)).       This    view     may     well    be

reasonable, and appears to be acknowledged by the petitioner,

at least with respect to her claim of past persecution. See

Brief for Petitioner at 18, 34.                       But it is also reasonable to

think    that      the       BIA    was    somewhat      misinterpreting         the     IJ’s

point, which may have been that Lushaj was a member of a group

of women identified by the political views of their families,

and    that,      as    a    member       of   this   “group,”     she    had    become     a

potential         target       of     the      Haklaj     gang.          Even     on     this

interpretation, however, the “group” would not qualify as a

social group within the meaning of 8 U.S.C. § 1101(a)(42(A) in

the absence of any evidence that such a “group” was perceived

as a discrete group by Albanian society. See Matter of S-E-G-,

24 I. & N. Dec. 579, 586-87 (B.I.A. 2008).

       The     BIA      also       properly      found    that     Lushaj       failed     to

demonstrate          that     any     harm     she    suffered    or     feared     was    on

account      of    an       imputed       political     opinion.         Indeed,       Lushaj

failed to support her claim with evidence indicating that the

Haklaj gang targeted her for any reason other than pecuniary

gain.    See Melgar de Torres v. Reno, 191 F.3d 307, 314 n.3 (2d


                                               -4-
Cir.    1999)   (“[g]eneral       violence       in    El     Salvador     does    not

constitute      persecution,        nor    can        it     form   a     basis    for

petitioner’s well-founded fear of persecution”); see also Jian

Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (holding

that,    absent    solid       support    in   the     record,      his    fear    was

“speculative at best”).             Accordingly, substantial evidence

supports     the    agency’s      conclusion          that    Lushaj      failed    to

demonstrate the requisite nexus to a protected ground.                               8

U.S.C. § 1252(b)(4)(B).

       Because the BIA reasonably found that Lushaj failed to

establish that any harm she suffered or feared bore a nexus to

a protected ground, it reasonably denied her application for

asylum and withholding of removal.                See Paul v. Gonzales, 444

F.3d 148, 156 (2d Cir. 2006).             Thus, we need not definitively

adjudicate Lushaj’s argument that she otherwise established

past persecution or a well-founded fear of future persecution,

although the BIA appears to have reasonably concluded that her

fears relate to a private gang motivated by pecuniary gain,

rather than to apprehended action by the Albanian government.

Furthermore,       the   BIA    reasonably     denied        Lushaj’s     claim    for

relief under the Convention Against Torture because she failed

to provide any particularized evidence indicating that she



                                         -5-
more likely than not would be tortured if she returned to

Albania.    See Wang v. Ashcroft, 320 F.3d 130, 143-44 (2d Cir.

2003).

    For the foregoing reasons, the petition for review is

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

that the Court previously granted in this petition is VACATED,

and any pending motion for a stay of removal in this petition

is DISMISSED as moot. Any pending request for oral argument in

this petition 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




                               -6-
