         10-3721-ag
         Ukshini v. Holder
                                                                                       BIA
                                                                                 Abrams, IJ
                                                                               A088 173 727



                               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 11th day of October, two thousand eleven.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                JOSÉ A. CABRANES,
 9                RAYMOND J. LOHIER, JR.,
10                         Circuit Judges.
11       _______________________________________
12
13       FEHMI UKSHINI,
14
15                           Petitioner,
16
17                           v.                                 10-3721-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       ______________________________________
23
24       FOR PETITIONER:              Andrew P. Johnson, Law Offices of Andrew
25                                    P. Johnson, New York, New York.
26
27       FOR RESPONDENT:              Tony West, Assistant Attorney General;
28                                    William C. Peachey, Assistant Director;
29                                    Mona Maria Yousif, Trial Attorney, Office
30                                    of Immigration Litigation, Civil
31                                    Division, United States Department of
32                                    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       Petitioner Fehmi Ukshini, a native and citizen of the

 6   former Yugoslavia, seeks review of an August 19, 2010, order

 7   of the BIA affirming the October 20, 2008, decision of

 8   Immigration Judge (“IJ”) Steven R. Abrams denying his

 9   application for asylum, withholding of removal, and relief

10   under the Convention Against Torture (“CAT”).    In re Fehmi

11   Ukshini, No. A088 173 727 (B.I.A. Aug. 19, 2010), aff’g No.

12   A088 173 727 (Immig. Ct. N.Y. City Oct. 20, 2008).     We

13   assume the parties’ familiarity with the underlying facts

14   and procedural history in this case.

15       Under the circumstances of this case, we have reviewed

16   the decision of the IJ as supplemented by the BIA.     See Yan

17   Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).     The

18   applicable standards of review are well established.        See 8

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

20   513 (2d Cir. 2009).

21       The agency reasonably found that Ukshini’s

22   corroborating evidence did not establish that his political

23   opinion was a “central reason” that he was attacked. See 8

                                  2
 1   U.S.C. § 1158(b)(1)(B)(i). First, contrary to Ukshini’s

 2   argument, because the IJ explicitly considered his

 3   corroborating evidence, a reasonable fact-finder would not

 4   be compelled to conclude that the agency ignored any

 5   material evidence. See Xiao Ji Chen v. Dep't of Justice, 471

 6   F.3d 315, 337 n.17 (2d Cir. 2006) (presuming that the agency

 7   “has taken into account all of the evidence before [it],

 8   unless the record compellingly suggests otherwise.”).

 9   Second, the agency’s finding was an adequate ground for the

10   denial of relief even in the absence of an adverse

11   credibility finding. See Chuilu Liu v. Holder, 575 F.3d 193,

12   198 n.5 (2d Cir. 2009) (“[A] failure to corroborate can

13   suffice, without more, to support a finding that an alien

14   has not met his burden of proof . . .”); see also 8 U.S.C.

15   § 1158(b)(1)(B)(ii). Third, the agency reasonably found that

16   Ukshini’s medical documents, which establish an attack but

17   not a motive, and his party membership card, which lists his

18   personal information but no specific political activity,

19   were insufficient corroborating evidence to establish that

20   he was attacked on account of his political opinion. See

21   Xiao Ji Chen, 471 F.3d at 342 (“[T]he weight to afford to

22   such evidence ‘lie[s] largely’ within the discretion of the

23   IJ.”) (internal citation omitted).   Therefore, because

                                  3
 1   Ukshini’s corroborating evidence failed to demonstrate his

 2   political activity, the agency reasonably concluded that,

 3   without further corroborating evidence, he had failed to

 4   establish that he had been persecuted on the basis of his

 5   political opinion.   See Chuilu Liu, 575 F.3d at 198 n.5; see

 6   also Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 (2d Cir.

 7   2005) (citing INS v. Elias-Zacarias, 502 U.S. 478, 483

 8   (1992)) (“The applicant must also show, through direct or

 9   circumstantial evidence, that the persecutor’s motive to

10   persecute arises from the applicant’s political belief.”).

11       Because Ukshini was unable to show past persecution or

12   a well-founded fear of future persecution on account of a

13   protected ground, as needed to make out an asylum claim, and

14   because his claim for withholding of removal was based on

15   the same factual predicate as his asylum claim, he was

16   necessarily unable to meet the higher standard required to

17   succeed on a claim for withholding of removal.   See Paul v.

18   Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Gomez v. INS,

19   947 F.2d 660, 665 (2d Cir. 1991); see also 8 U.S.C.

20   §§ 1231(b)(3)(C), 1229a(c)(4)(B).

21

22



                                   4
 1       The agency also reasonably denied Ukshini’s application

 2   for CAT relief because Ukshini did not establish that he

 3   would be tortured at “the instigation of or with the consent

 4   or acquiescence of a public official or other person acting

 5   in an official capacity.” 8 C.F.R. § 1208.18(a)(1). The

 6   record indicates that Ukshini’s attacker was arrested for

 7   his 2006 attack on Ukshini, and that the Democratic League

 8   of Kosovo is a controlling coalition member of the

 9   government. Because the government of Kosovo has previously

10   punished Ukshini’s attacker, the agency reasonably concluded

11   that there was insufficient evidence that public officials

12   in Kosovo would breach their legal responsibility to

13   intervene to prevent such activity. See Khouzam v. Ashcroft,

14   361 F.3d 161, 171 (2d Cir. 2004) (“[T]orture requires only

15   that government officials know of or remain willfully blind

16   to an act and thereafter breach their legal responsibility

17   to prevent it.”).

18       For the foregoing reasons, the petition for review is

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

20   removal that the Court previously granted in this petition

21   is VACATED, and any pending motion for a stay of removal in

22   this petition is DISMISSED as moot.   Any pending request for


                                   5
1   oral argument in this petition is DENIED in accordance with

2   Federal Rule of Appellate Procedure 34(a)(2), and Second

3   Circuit Local Rule 34.1(b).

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




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