         10-2706-ag                                                                    BIA
         Latifaj v. Holder                                                      Bukszpan IJ
                                                                               A089 252 372


                              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 29th day of May, two thousand twelve.
 5
 6       PRESENT:
 7                José A. Cabranes,
 8                Debra Ann Livingston,
 9                Gerard E. Lynch,
10                     Circuit Judges.
11       ______________________________________
12
13       MUSTAF LATIFAJ,
14                     Petitioner,
15
16                           v.                                 10-2706-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                     Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               Joshua Bardavid, New York, N.Y.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General; Blair T. O’Connor,
27                                     Assistant Director; Remi Adalemo,
28                                     Attorney, Office of Immigration
29                                     Litigation, United States Department
30                                     of Justice, 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

 4   is DENIED.

 5       Mustaf Latifaj, a native of the former Yugoslavia and a

 6   citizen of Serbia, seeks review of a June 29, 2010, order of

 7   the BIA vacating the June 19, 2008, decision of Immigration

 8   Judge (“IJ”) Joanna Miller Bukszpan, which granted Latifaj’s

 9   application for asylum.   In re Mustaf Latifaj, No. A089 252

10   372 (B.I.A. June 29, 2010), rev’g No. A089 252 372 (Immig.

11   Ct. N.Y. City June 19, 2008).       We assume the parties’

12   familiarity with the underlying facts and procedural history

13   in this case.

14       Under the circumstances of this case, we have reviewed

15   only the decision of the BIA.       See Yan Chen v. Gonzales, 417

16   F. 3d 268, 271 (2d Cir.   2005).      The applicable standards of

17   review are well-established.    See Yanqin Weng v. Holder, 562

18   F.3d 510, 513 (2d Cir. 2009).       We address only Latifaj’s

19   challenge to the BIA’s decision regarding whether he has a

20   well-founded fear of persecution.       See Yueqing Zhang v.

21   Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).

22       The BIA must review the factual findings of the IJ for

23   clear error, see 8 C.F.R. § 1003.1(d)(3)(i), rejecting a


                                     2
 1   factual finding only if it “is left with the definite and

 2   firm conviction that a mistake has been committed.”     Matter

 3   of R-S-H-, 23 I. & N. Dec. 629, 637 (BIA 2003) (quoting

 4   United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).

 5   The BIA reviews the IJ’s findings regarding whether any harm

 6   an asylum applicant may suffer rises to the level of

 7   persecution and whether an applicant’s fear of persecution

 8   is objectively reasonable de novo.   See 8 C.F.R

 9   § 1003.1(d)(3)(ii); Hui Lin Huang v. Holder, No. 10-1263-ag,

10   2012 WL 10033506 *1, *4 (2d Cir. Mar. 27, 2012); Mirzoyan v.

11   Gonzales, 457 F.3d 217, 220 (2d Cir. 2006) (“The IJ

12   determined, however, that . . . the facts did not meet the

13   legal definition of persecution in the INA. This is a mixed

14   question of law and fact, which we review de novo.”).

15       After summarizing Latifaj’s testimony and concluding

16   that he was credible, the IJ made the following findings:

17   (1) conditions in Kosovo were “unsettled”; (2) the

18   organization which threatened Latifaj was on the U.S. State

19   Department terrorist list and could not be controlled by the

20   government; and (3) there was at least a ten percent chance

21   that Latifaj “would have problems if he were to return to

22   Kosovo.”   Based on those findings, the IJ reached the legal

23   conclusion that Latifaj had a well-founded fear of future

24   persecution on account of political opinion.

                                   3
 1       The BIA did not explicitly address the IJ’s statement

 2   that there was a reasonable possibility that Latifaj “would

 3   have problems,” but instead explained that Latifaj “failed

 4   to establish that a reasonable person in his circumstances

 5   would fear persecution upon return to Serbia based on any

 6   ground protected under the Act . . . [because he] did not

 7   establish that he would be targeted for persecution by the

 8   [terrorist organization].”    The BIA did not make any new

 9   findings of fact, as its statement that it was unclear who

10   was making the telephone calls to Latifaj’s family and what

11   the threats in those calls entailed was a summary of

12   Latifaj’s own testimony.     See Belortaja v. Gonzales, 484

13   F.3d 619, 625 (2d Cir. 2007) (8 C.F.R. § 1003.1(d)(3)(iv)

14   was intended to restrict the introduction of new evidence

15   before the BIA, “not the reevaluation of evidence obtained

16   by the IJ previously”).    Cf. Padmore v. Holder, 609 F.3d 62,

17   68 (2d Cir. 2010) (concluding that the BIA exceeded its

18   authority when “the BIA decided to reverse the IJ . . .

19   based on disputed material facts with respect to which the

20   IJ reached no resolution”).     See also Lin Zhong v. U.S.

21   Dept. of Justice, 480 F.3d 104, 117 (2d Cir. 2007); Matadin

22   v. Mukasey, 546 F.3d 85 (2d Cir. 2008) (“Questions of law,


                                     4
 1   including what quantum of evidence will suffice to discharge

 2   an applicant’s burden of proof, are reviewed de novo.”).

 3       Moreover, as Latifaj failed to establish that the

 4   telephone calls his family continued to receive after he

 5   left Serbia were from the AKSH, or that the calls were

 6   threatening, the agency did not err in finding that his fear

 7   of persecution was not objectively reasonable.   See Jian

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

 9   (concluding that a fear is not objectively reasonable if it

10   lacks “solid support” in the record and is merely

11   “speculative at best”).   Additionally, it was not improper

12   for the agency to find that the objective reasonableness of

13   Latifaj’s fear of future persecution was diminished because

14   his family remained in Serbia unharmed.   See Melgar de

15   Torres v. Reno, 191 F. 3d 307, 313 (2d Cir. 1999)

16   (concluding that where an asylum applicant’s family

17   continued to live in petitioner’s native country, his claim

18   of a well-founded fear was diminished).

19       Accordingly, because the BIA did not make independent

20   fact findings or find any facts contrary to those found by

21   the IJ, and explained why the evidence was insufficient to

22   demonstrate an objectively reasonable well-founded fear, it

23   did not err in denying Latifaj’s application for asylum.

                                   5
 1       For the foregoing reasons, the petition for review is

 2   DENIED.   As we have completed our review, the pending motion

 3   for a stay of removal in this petition is DISMISSED as moot.

 4   Petitioner’s request for oral argument in this petition is

 5   DENIED in accordance with Federal Rule of Appellate

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

 7

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




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