         11-5162
         Gega v. Holder
                                                                                            BIA
                                                                                      Straus, I.J.
                                                                                   A200 082 837

                               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 New
 4       York, on the 23rd day of August, two thousand twelve.
 5
 6       PRESENT:
 7                        ROBERT A. KATZMANN,
 8                        BARRINGTON D. PARKER,
 9                        DEBRA ANN LIVINGSTON,
10                             Circuit Judges.
11
12
13       LEONARD GEGA,
14                Petitioner,
15
16                        v.                                    11-5162
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21
22
23       FOR PETITIONER:                Elyssa N. Williams, Formica Williams,
24                                      P.C., New Haven, Connecticut.
25
26       FOR RESPONDENT:                Stuart F. Delery, Assistant Attorney
27                                      General; Mary Jane Candaux, Assistant
28                                      Director; Laura M.L. Maroldy, Trial
29                                      Attorney, Office of Immigration
30                                      Litigation, United States Department of
31                                      Justice, Washington, D.C.
32
 1
 2       UPON DUE CONSIDERATION of this petition for review of a

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

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

 5   DISMISSED in part AND DENIED in part.

 6       Petitioner Leonard Gega, a native and citizen of Albania,

 7   seeks review of a November 16, 2011, decision of the BIA

 8   affirming the June 14, 2010, decision of Immigration Judge

 9   (“IJ”) Michael W. Straus denying his application for asylum,

10   withholding of removal and relief under the Convention Against

11   Torture (“CAT”).    In re Leonard Gega, No. A200 082 837 (B.I.A.

12   Nov. 16, 2011), aff’g No. A200 082 837 (Immig. Ct. Hartford

13   June 14, 2010).    We assume the parties’ familiarity with the

14   underlying facts and procedural history of the case.

15       Under the circumstances of this case, we have reviewed

16   the IJ’s decision as modified by the BIA decision.      See Xue

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

18   2005).   The applicable standards of review are well-

19   established.   See 8 U.S.C. § 1252(b)(4)(B); see also Chuilu

20   Liu v. Holder, 575 F.3d 193, 196 (2d Cir. 2009).

21       Title 8, Section 1158(a)(3) of the United States Code

22   provides that no court shall have jurisdiction to review the

23   agency’s finding that an asylum application was untimely under

                                     2
 1   8 U.S.C. § 1158(a)(2)(B), or its finding of neither changed

 2   nor extraordinary circumstances excusing the untimeliness

 3   under 8 U.S.C. § 1158(a)(2)(D).    While the courts retain

 4   jurisdiction, under 8 U.S.C. § 1252(a)(2)(D), to review

 5   constitutional claims and “questions of law,” in this case,

 6   Gega has challenged only purely factual determinations and the

 7   agency’s exercise of discretion.    Therefore, we lack

 8   jurisdiction to review the agency’s denial of asylum.     See

 9   Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329-31

10   (2d Cir. 2006).

11       Substantial evidence supports the agency’s conclusion

12   that, even if Gega suffered past persecution in Albania,

13   fundamental changes in conditions in that country rebut the

14   presumption that he has a well-founded fear of future

15   persecution.   See 8 C.F.R. § 1208.13(b).   As noted by the BIA,

16   the 2006 Asylum Profile reflects that the Democratic Party –

17   rather than the communists– is in power in Albania, and that

18   “there are no indications of systemic political persecution”

19   there.   Gega himself testified that the Democratic Party

20   controls the police, and that the members of the Zyberi family

21   who had previously threatened him were no longer members of

22   the national or local police force.    Further, Gega testified


                                    3
 1   that his father and five siblings remain in Albania without

 2   harm.   See Matter of A-E-M-, 21 I. & N. Dec. 1157, 1160 (BIA

 3   1998) (finding that an applicant’s claim of future persecution

 4   was undercut by the fact that his co-applicant and other

 5   relatives remained in Peru without harm after he left).

 6       Gega argues that the agency erred in concluding that

 7   fundamental changes in Albania rebut the presumption that he

 8   has a well-founded fear of future persecution on the basis of

 9   religious persecution he experienced in Albania, rather than

10   persecution motivated by his political opinion.   Gega,

11   however, points to nothing in the record that supports his

12   claim that he would experience religious persecution if he

13   returned to Albania.   Absent “solid support” in the record

14   that his fear is objectively reasonable, Gega’s claim that he

15   fears future persecution is “speculative at best.”   Jian Xing

16   Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (per curiam).

17       Finally, because Gega offered no other evidence that he

18   would likely be tortured in Albania, the agency did not err in

19   denying his application for CAT relief as that claim was based

20   on the same factual predicate as his asylum and withholding of

21   removal claims.   See Paul v. Gonzales, 444 F.3d 148, 156-57

22   (2d Cir. 2006).


                                    4
1        For the foregoing reasons, the petition for review is

2    DISMISSED in part and DENIED in part.   As we have completed

3    our review, any stay of removal that the Court previously

4    granted in this petition is VACATED, and any pending motion

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

6    Any pending request for oral argument in this petition is

7    DENIED in accordance with Federal Rule of Appellate Procedure

8    34(a)(2), and Second Circuit Local Rule 34.1(b).

 9                              FOR THE COURT:
10                              Catherine O’Hagan Wolfe, Clerk
11
12
13
14




                                   5
