2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-11-2011

Adnan Morina v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-1854

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1

IMG-118 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-3055

___________

ADNAN MORINA, a/k/a ABENE MORINA,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES

___________

No. 09-3057

___________

ADEM MORINA,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES

___________

No. 10-1854

___________

ADNAN MORINA, a/k/a ABENE MORINA; ADEM MORINA,

Petitioners

v.

ATTORNEY GENERAL OF THE UNITED STATES
2

____________________________________

On Petitions for Review of Orders of the

Board of Immigration Appeals

(Agency Nos. A097-391-119 & A097-457-942)

Immigration Judge: Honorable Annie S. Garcy

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

April 20, 2011

Before: AMBRO, GREENAWAY, JR. AND GREENBERG, Circuit Judges

(Opinion filed: May 11, 2011)

___________

OPINION

___________

PER CURIAM

Cousins Adnan and Adem Morina petition for review of the Board of Immigration 

Appeals‟ (“BIA”) decisions upholding the Immigration Judge‟s (“IJ”) denial of their 

respective applications for asylum, withholding of removal, and relief under the 

Convention Against Torture (“CAT”). Petitioners also seek review of the BIA‟s 

subsequent decision denying their joint motion to reconsider. For the reasons that follow, 

we will deny the petitions.

I.

Petitioners are ethnic Albanians from Kosovo. In September 2003, Adem1entered 

 

1 We mean no disrespect when we refer to Petitioners by their first names; we do 
3

the United States with a fraudulent passport and sought admission under the Visa Waiver 

Program (“VWP”).2 After that request was denied, he applied for asylum, withholding of 

removal, and CAT relief, and was placed in asylum-only proceedings. Meanwhile, in 

February 2004, Adnan entered the United States without being admitted or paroled. He 

subsequently was placed in removal proceedings, where he conceded his removability 

and applied for asylum, withholding of removal, and CAT relief.

Petitioners claimed that they feared returning to Kosovo because Albanian 

extremists with ties to the Alliance for the Future of Kosovo (“AAK”) had persecuted 

them on account of their membership in the Democratic League of Kosovo (“LDK”), a 

rival political party. Their respective cases were ultimately consolidated before the IJ, 

who heard their testimony over the course of several hearings between December 2004 

and August 2006. 

Petitioners testified as follows. In 1998, they and their family fled Kosovo in the 

wake of mistreatment by the Serbian government and its armed forces.

3 After NATO 

 

so solely for ease of identification. 

2 Under the VWP, aliens from certain countries are permitted to visit the United 

States for 90 days or less without a visa. See 8 U.S.C. § 1187(a). Aliens who 

request admission under the VWP agree to waive any challenge to their removal; 

however, they may still apply for asylum, withholding of removal, and CAT relief. 

Shehu v. Att‟y Gen. of the U.S., 482 F.3d 652, 655 (3d Cir. 2007) (citing 8 U.S.C. 

§ 1187(b)). VWP applicants who apply for asylum, withholding of removal, 

and/or CAT relief are placed in “asylum-only” proceedings, not removal 

proceedings. See Shehu, 482 F.3d at 655. 

3

Petitioners testified about the alleged mistreatment they received at the hands of 

the Serbian government in the years leading up to their 1998 flight from Kosovo. 

In denying their respective applications for relief, the IJ found that the Serbian 
4

intervened in Kosovo in 1999, Petitioners and their family returned there. Around that 

same time, Adnan joined the LDK (Adem had joined several years earlier).

In September 2000, Petitioners attended a political rally. On their way home —

Petitioners lived together, along with many of their family members — AAK supporters 

beat and threatened the two of them and burned their LDK flags. In February 2001, 

Petitioners received threatening telephone calls after a leader from the LDK visited their

home. In May 2001, there was an explosion outside Petitioners‟ house. They reported 

the explosion to the police, who said that it was “nothing.” A few days later, Petitioners 

received an anonymous phone call. The caller stated that the explosion was a warning 

and threatened that each family member would be killed if they continued to support the 

LDK.

In June 2001, five or six masked men accosted Adnan and his father on their way 

home from work. The masked men beat the two of them, and threatened to kill them if 

they continued to support the LDK. A few months later, a group of masked men broke 

into Petitioners‟ house looking for Adem, who was not there at the time. The men beat 

Adem‟s father, and stated that they would have killed Adem if he had been home. In 

light of this incident, Adem went into hiding for several months.

 

government was no longer in a position to carry out this mistreatment because the 

United Nations had gained control over the region. On appeal, the BIA explained 

that, “[f]or understandable reasons, [Petitioners] make[] no claim for relief related 

to actions taken by Serbian forces.” (See Admin. R. at 39, 43.) Petitioners did not 

challenge this characterization in their motion to reconsider, nor do they do so 

here. 
5

In August 2002, Adnan‟s father‟s store was attacked by gunfire. Adnan and his 

father, who were inside the store at the time but escaped unharmed, received a 

threatening phone call the next day. A few months later, two men beat Adem on his way 

to the train station, injuring his ear. In April 2003, Adem was again accosted by two 

men, who beat him and threatened that, if he did not leave Kosovo, he would be buried 

there.

In July 2003, a group of masked men abducted Adem. They placed a bag over his 

head and drove around for approximately thirty minutes, during which time they beat and 

threatened him. They then threw Adem from the car, removed the bag, placed a gun in 

his mouth, and told him that he was about to die. Adem begged for his life, and the men 

proceeded to beat him until he passed out. The men were gone when he awoke, so he 

went home and began making plans for his departure from Kosovo. He left shortly 

thereafter.

Around that same time, Adnan and his father were also abducted by a group of 

masked men. The men forced Adnan and his father into separate cars and proceeded to 

beat them. The men threatened that they would kill the two of them if they continued to 

support the LDK. The men then threw Adnan and his father out of the cars, continued to 

beat them, and put a gun to Adnan‟s head. The men ultimately let the two of them go, 

and Adnan left Kosovo two days later.

Petitioners testified that they and their family members in Kosovo — with the 
6

possible exception of one relative — are no longer members of the LDK. Petitioners did 

not allege that the family had received additional threats since their departure from 

Kosovo, or that the Albanian extremists were looking for the two of them.

In December 2006, the IJ denied Petitioners‟ respective applications. The IJ found 

that Petitioners each lacked credibility, and that Adnan‟s claims did not rise to the level 

of past persecution. The IJ further found that the conditions in Kosovo had 

fundamentally changed since Petitioners‟ departure, noting that the LDK and AAK had 

entered into a ruling coalition in October 2004. The IJ also rejected Petitioners‟ 

argument that they would be tortured by, or with the acquiescence of, the government 

upon their return to Kosovo, noting that the LDK was the most popular political party in 

Kosovo. As a result, the IJ ordered Adnan‟s removal and returned Adem‟s case to the 

Department of Homeland Security.

Petitioners appealed the IJ‟s decision to the BIA, which addressed their respective 

cases in separate (but similar) decisions. The BIA rejected the IJ‟s adverse credibility 

determinations, concluding that they were “based on improper speculation and 

inconsistencies that are either not fully supported by the record or have been reasonably 

explained by [Petitioners].” (Admin. R. at 40, 44.) The BIA agreed with the IJ, however, 

that Adnan‟s claims did not rise to the level of past persecution and that, even if he and 

Adem had suffered past persecution, fundamental changes had occurred in Kosovo that 

rebutted any presumption of a well-founded fear of future persecution. The BIA further 

concluded that Petitioners had not otherwise established a well-founded fear of future 
7

persecution, for they were no longer members of the LDK, and there was no evidence 

that Albanian extremists in Kosovo had harmed their family since their departure or were 

looking for them. Finally, the BIA held that Petitioners had not established that they 

would likely be tortured by, or with the acquiescence of, the government in Kosovo.

Petitioners timely filed a joint petition for review. Because the BIA had issued 

separate decisions, the Clerk docketed Adnan‟s and Adem‟s respective cases separately 

(C.A. Nos. 09-3055 and 09-3057, respectively). Meanwhile, in July 2009, Petitioners 

jointly moved the BIA to reconsider its June 2009 decisions. In February 2010, the BIA, 

in a single decision, denied the motion on the merits, finding “no basis to reconsider our 

June 17, 2009, decision[s].” (Admin. R. at 3.) Petitioners then timely filed a petition for 

review of that decision, and the Clerk docketed this new petition at C.A. No. 10-1854. 

The Clerk subsequently granted the Government‟s unopposed motion to consolidate the 

three cases, and they are now ripe for disposition.

II.

We have jurisdiction over the instant petitions pursuant to 8 U.S.C. § 1252(a)(1).

4

We review the agency‟s factual findings, including its conclusions concerning evidence 

of past persecution and a well-founded fear of persecution, for substantial evidence. See

 

4 Our jurisdiction under § 1252(a)(1) is limited to the review of “final order[s] of 

removal.” Although Adem was not in removal proceedings, we nonetheless have 

jurisdiction to review his claims because, as we have previously explained, “a 

denial of a VWP applicant‟s petition for asylum, withholding of removal, and 

relief under the CAT constitutes „a final order of removal‟ within the meaning of 

[§ 1252(a)(1)].” Shehu, 482 F.3d at 656.
8

Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006). Under this deferential standard 

of review, we may not disturb the agency‟s findings “unless the evidence not only 

supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483-

84 (3d Cir. 2001). We review the agency‟s denial of Petitioners‟ motion to reconsider for 

abuse of discretion, see Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir. 2005), and must 

uphold that decision unless it is “arbitrary, irrational, or contrary to law.” Id. (quotation 

marks and citation omitted). 

To obtain asylum, an alien must show that he is unable or unwilling to return to 

the country in question “because of persecution or a well-founded fear of persecution on 

account of race, religion, nationality, membership in a particular social group, or political 

opinion.” 8 U.S.C. § 1101(a)(42); see 8 U.S.C. § 1158(b). A showing of past 

persecution creates a presumption of a well-founded fear of future persecution. 8 C.F.R. 

§ 1208.13(b)(1). That presumption is rebutted, however, if the Government establishes, 

by a preponderance of the evidence, that “[t]here has been a fundamental change in 

circumstances such that the applicant no longer has a well-founded fear of persecution in 

the [country in question].” See 8 C.F.R. § 1208.13(b)(1)(i)(A), (ii). 

In this case, even if Petitioners could establish past persecution, substantial 

evidence supports the agency‟s determination that the changed circumstances in Kosovo 

rebut any presumption of a well-founded fear of persecution, and that Petitioners have not 

otherwise demonstrated a well-founded fear of future persecution. As the BIA 

highlighted, the political landscape in Kosovo has changed since Petitioners‟ departure, 
9

with the AAK — whose supporters Petitioners claim to fear — forming a ruling coalition 

with the LDK. Additionally, Petitioners‟ family members in Kosovo — with the possible 

exception of one relative — are no longer members of the LDK, and there is no 

indication that the family has continued to experience any of the earlier troubles 

highlighted by Petitioners. Moreover, Petitioners themselves are no longer members of 

the LDK, further lessening the possibility that they would be harmed if they returned to 

Kosovo.

Because Petitioners cannot satisfy the standard for asylum, they cannot meet the 

higher standard for withholding of removal. See Lukwago v. Ashcroft, 329 F.3d 157, 

182 (3d Cir. 2003). Additionally, they have not shown that the evidence compels a 

finding that either one of them would likely be tortured by, or with the acquiescence of, 

the government in Kosovo. Finally, Petitioners have failed to establish that the BIA 

abused its discretion in denying their motion to reconsider.

5

Having reviewed the record, we are confident that, contrary to Petitioners‟ 

contention, the BIA properly considered all of the record evidence in reaching its 

decisions. Accordingly, and in light of the above, we will deny the petitions for review.

 

5

Petitioners argue that “the BIA inexplicably departed from established standards 

for [reviewing a] motion to reconsider in denying Petitioners‟ motion on the 

ground that Petitioners did not submit[] new evidence in support of the motion.” 

(Pet‟rs‟ Supplemental Br. 20.) This argument lacks merit, for the BIA denied the 

motion not because Petitioners failed to provide new evidence, but because they 

did not establish a basis for disturbing the BIA‟s earlier decisions. Nor do we 

agree with the Petitioners‟ contention that the BIA simply “disregarded” their 

motion.