         08-5768-ag (L); 09-3455-ag (Con)
         Gjoni v. Holder
                                                                                       BIA
                                                                                Vomacka, IJ
                                                                               A077 699 879
                                 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 20 th day of May, two thousand ten.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                DEBRA ANN LIVINGSTON,
 9                GERARD E. LYNCH,
10                        Circuit Judges.
11       _______________________________________
12
13       JOLANDA GJONI,
14
15                         Petitioner,
16
17                           v.                                 08-5768-ag (L);
18                                                              09-3455-ag (Con)
19                                                              NAC
20       ERIC H. HOLDER, JR., UNITED STATES
21       ATTORNEY GENERAL,
22
23                Respondent.
24       ______________________________________
25
26       FOR PETITIONER:                     Kai W. De Graaf, New York, New York.
27
28       FOR RESPONDENT:                     Tony West, Assistant Attorney
29                                           General, Civil Division; Aviva L.
30                                           Poczter, Senior Litigation Counsel;
31                                           Jesse Lloyd Busen, Office of
32                                           Immigration Litigation, Civil
33                                           Division, U.S. Department of
34                                           Justice, Washington, D.C.
35
1         UPON DUE CONSIDERATION of these petitions for review of

2    two Board of Immigration Appeals (“BIA”) decisions, it is

3    hereby ORDERED, ADJUDGED, AND DECREED, that these petitions

4    for review are DENIED.

5         Petitioner, Jolanda Gjoni, a native and citizen of

6    Albania, seeks review of: (1) an October 28, 2008, order of

7    the BIA affirming the January 5, 2007 decision of

8    Immigration Judge (“IJ”) Alan Vomacka denying petitioner’s

9    application for asylum, withholding of removal, and relief

10   under the Convention Against Torture (“CAT”), In re Jolanda

11   Gjoni, No. A 077 699 879 (B.I.A. Oct. 28, 2008), aff’g No.

12   A 077 699 879 (Immig. Ct. N.Y. City Jan. 5, 2007); and (2) a

13   July 24, 2009, order of the BIA, denying her motion to

14   reopen, In re Jolanda Gjoni, No. A 077 699 879 (B.I.A. July

15   24, 2009).   We assume the parties’ familiarity with the

16   underlying facts and procedural history of the case.

17   I.   Docket No. 08-5768-ag (L): Asylum, Withholding of

18        Removal, and CAT Relief

19        Under the circumstances of this case, we review the

20   IJ’s decision as modified by the BIA decision, i.e., minus

21   the IJ’s adverse credibility determination.   See Xue Hong

22   Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.


                                    2
1    2005).   The applicable standards of review are well-

2    established.   See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

3    Holder, 562 F.3d 510, 513 (2d Cir. 2009).

4        A.    Past Persecution

5         The IJ reasonably found that Gjoni’s past experiences

6    did not rise to the level of persecution.    Although Gjoni

7    argues that the BIA failed to consider evidence that her

8    relatives were murdered on account of their political

9    opinion, even assuming that there was a nexus, it is well-

10   settled that an applicant cannot establish past persecution

11   by virtue of harm to a relative.   Tao Jiang v. Gonzales, 500

12   F.3d 137, 141 (2d Cir. 2007); see also Shi Liang Lin v. U.S.

13   Dep’t of Justice, 494 F.3d 296, 308 (2d Cir. 2007) (“[T]he

14   statutory scheme unambiguously dictates that applicants can

15   become candidates for asylum relief only based on

16   persecution that they themselves have suffered or must

17   suffer.”).

18       To the extent Gjoni argues that the agency erred in

19   failing to ask her for additional corroborative evidence,

20   she misapprehends the agency’s decision.    The BIA did not

21   find that the record lacked corroborative evidence, but

22   rather that the documentary evidence Gjoni submitted was



                                   3
1    insufficient to establish past persecution.    See Diallo v.

2    INS, 232 F.3d 279, 286 (2d Cir. 2000) (finding that although

3    an applicant’s credible testimony may be sufficient to

4    sustain the burden of proof without corroboration, “an

5    applicant’s credible testimony may not always satisfy the

6    burden of proof”).    Finally, Gjoni’s argument that the

7    agency failed to consider her past experiences cumulatively

8    is belied by the record.    Cf. Manzur v. U.S. Dep’t of

9    Homeland Sec., 494 F.3d 281, 290 (2d Cir. 2007).      Thus,

10   substantial evidence supports the BIA’s finding that Gjoni

11   failed to establish past persecution.

12       B.   Well-Founded Fear

13       In the absence of past persecution, an alien can

14   demonstrate eligibility for relief if she can show that she

15   has a well-founded fear of future persecution on account of

16   a protected ground.    8 C.F.R. § 1208.13(b)(2)(i).

17   Substantial evidence supports the agency’s conclusion that

18   Gjoni failed to demonstrate a well-founded fear of being

19   kidnapped and forced into prostitution.    The IJ found that:

20   (1) whereas Gjoni is married with children, common targets

21   of involuntary prostitution in Albania are young single

22   women; and (2) the increasingly democratic nature of Albania



                                    4
1    makes it unlikely that Gjoni would be subjected to

2    prostitution because of her political opinion.     We are not

3    persuaded by Gjoni’s arguments that this analysis was

4    erroneous.   See Manzur, 494 F.3d at 290 (noting that under

5    the substantial evidence standard, an IJ’s findings of fact

6    “are treated as conclusive unless any reasonable adjudicator

7    would be compelled to conclude to the contrary” (internal

8    quotation marks omitted)).

9        Although Gjoni challenges the IJ’s finding that she is

10   an unlikely target for forced prostitution in Albania, a

11   reasonable fact finder would not be compelled to accept her

12   arguments.   See Jian Xing Huang v. INS, 421 F.3d 125, 129

13   (2d Cir. 2005) (finding that a fear is not objectively

14   reasonable if it lacks “solid support” in the record and is

15   merely “speculative at best”).

16       Because Gjoni was unable to meet her burden for asylum,

17   she necessarily failed to meet the higher burden required

18   for withholding of removal.     See Paul v. Gonzales, 444 F.3d

19   148, 156 (2d Cir. 2006).     Although Gjoni sets forth the

20   standard for CAT relief in her brief before this Court, she

21   does not argue that any evidence established a likelihood of

22   torture upon her return to Albania.     Accordingly, we deem



                                     5
1    waived any challenge to the agency’s denial of CAT relief.

2    See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d

3    Cir. 2005).

4    II.   Docket No. 09-3455-ag (Con): Motion to Reopen

5          We review the BIA’s denial of a motion to reopen for

6    abuse of discretion.   See Kaur v. BIA, 413 F.3d 232, 233 (2d

7    Cir. 2005) (per curiam). 1

8          In her motion, Gjoni argued that because her husband

9    has been granted withholding of removal and she will likely

10   return to Albania alone, she has a well-founded fear of

11   being forced into prostitution.   The BIA concluded, however,

12   that the fact that Gjoni’s husband was granted withholding

13   of removal was insufficient to establish her own eligibility

14   for relief.

15         Gjoni argues that the BIA’s October 2008 and July 2009

16   decisions were inconsistent in that the first found that her

17   husband would “likely” return with her to Albania, and that

18   the second noted that she made “no showing that [her]

19   husband was willing to return to Albania” at the time of her

20   January 2006 hearing before the IJ.   Gjoni additionally




             1
             Gjoni does not challenge the BIA’s denial of her
       untimely motion to reconsider.

                                   6
1    argues that the IJ placed “significant stock in the pivotal

2    assumption that [she] would ‘likely be accompanied by her

3    husband [] and three children.”       Despite Gjoni’s arguments,

4    however, even after considering that her husband was granted

5    withholding of removal, the BIA in considering her motion to

6    reopen found that this fact alone was insufficient to

7    demonstrate her prima facie eligibility for asylum.       See INS

8    v. Abudu, 485 U.S. 94, 104-05 (1988).       Moreover, the BIA in

9    its October 2008 decision merely considered her husband’s

10   possible return to Albania as one factor among several in

11   support of its conclusion that Gjoni had failed to establish

12   her eligibility for relief.     We additionally find unavailing

13   Gjoni’s argument that the evidence she submitted with her

14   motion was not cumulative because it was previously

15   unavailable.   As the BIA noted, her evidence merely

16   reiterated general country conditions evidence regarding

17   human trafficking in Albania.       Thus, the BIA did not abuse

18   its discretion in denying Gjoni’s motion to reopen.       See

19   Kaur, 413 F.3d at 233.

20       For the foregoing reasons, the petitions for review are

21   DENIED.   As we have completed our consolidated review, any

22   stay of removal that the Court previously granted is



                                     7
1   VACATED, and any pending motion for a stay of removal is

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

3   DENIED in accordance with Federal Rule of Appellate

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

5                               FOR THE COURT:
6                               Catherine O’Hagan Wolfe, Clerk
7




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