09-1132-ag

Simoni v. Holder

BIA

Abrams, IJ

A077 353 685

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 12 day of March, two thousand ten. th

5

6 PRESENT:

7 DENNIS JACOBS,

8 Chief Judge,

9 JOSEPH M. McLAUGHLIN,

10 GERARD E. LYNCH,

11 Circuit Judges.

12 _______________________________________

13

14 GENTIAN SIMONI,

15 Petitioner,

16

17 v. 09-1132-ag

18 NAC

19 ERIC H. HOLDER, Jr., U.S. ATTORNEY 

20 GENERAL, 

21 Respondent.

22 _______________________________________

23

24 FOR PETITIONER: Sokol Braha, New York, New York.

25

26 FOR RESPONDENT: Tony West, Assistant Attorney

27 General, Blair T. O’Connor,

28 Assistant Director, Juria L. Jones,

29 Trial Attorney, Office of

30 Immigration Litigation, United

31 States Department of Justice,

32 Washington, D.C.
2

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 Gentian Simoni, a native and citizen of Albania, seeks

6 review of a March 4, 2009, order of the BIA, affirming the

7 January 12, 2007, decision of Immigration Judge (“IJ”)

8 Steven R. Abrams, which denied his application for asylum,

9 withholding of removal, and relief under the Convention

10 Against Torture (“CAT”). In re Gentian Simoni, No. A077 353

11 685 (B.I.A. Mar. 4, 2009), aff’g No. A077 353 685 (Immig.

12 Ct. N.Y. City Jan. 12, 2007). We assume the parties’

13 familiarity with the underlying facts and procedural history

14 in this case.

15 Under the circumstances of this case, we review both

16 the BIA’s and IJ’s opinions. See Yan Chen v. Gonzales, 417

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

18 review are well-established. See 8 U.S.C. § 1252(b)(4)(B);

19 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). 

20 Although the IJ found that Simoni had suffered past

21 persecution as a result of his association with the

22 Democratic Party, he reasonably concluded that conditions in
3

1 Albania have changed sufficiently such that Simoni’s fear of

2 persecution is no longer objectively well-founded. See

3 ; 8 C.F.R. § 1208.13(b)(1)(i)(A) Hoxhallari v. Gonzales, 468

4 F.3d 179, 184 (2d Cir. 2006). As the BIA explained, even

5 though the Democratic Party was in power when Simoni was

6 persecuted in 1996, the Democratic Party lost control in

7 1997 after a period of unrest, and returned to power after

8 elections in 2005. The finding of substantially changed

9 country conditions since 1996 is thus well-supported in the

10 record. See Hoxhallari, 468 F.3d at 187. Furthermore, we

11 find no support in the record for Simoni’s argument that the

12 IJ failed to consider all of the country conditions evidence

13 in the record. See Xiao Ji Chen v. U.S. Dep’t of Justice,

14 471 F.3d 315, 338 n.17 (2d Cir. 2006).

15 Simoni further argues that the agency erred in failing

16 to grant him humanitarian asylum based on the severity of

17 the 1996 persecution. On appeal to the BIA, however, Simoni

18 argued that the agency should grant him humanitarian relief

19 based on incidents that occurred after 1996. The BIA did

20 not reach this argument because it affirmed the IJ’s

21 rejection of the post-1996 allegations on credibility

22 grounds. Thus, to the extent that Simoni now asserts that
4

1 he is eligible for humanitarian asylum based on his May 1996

2 persecution, we decline to review that unexhausted argument. 

3 See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 123-24

4 (2d Cir. 2007). 

5 Before this Court, Simoni again argues that the agency

6 should have granted him humanitarian asylum based on the

7 later incidents of persecution he alleged. Yet, even

8 assuming his credibility, it is plain that Simoni did not

9 suffer the type of “atrocious” persecution for which

10 humanitarian asylum is reserved. See Matter of Chen, 20 I.

11 & N. Dec. 16, 19-20 (BIA 1989); see also Jalloh v. Gonzales,

12 498 F.3d 148, 151 (2d Cir. 2007). Indeed, Simoni has never

13 argued that he suffers the long-lasting physical or mental

14 effects that would support humanitarian asylum. See Jalloh,

15 498 F.3d at 151.

16 Accordingly, the agency properly denied Simoni’s

17 application for asylum.

18 Because Simoni failed to challenge the IJ’s denial of

19 his applications for withholding of removal and CAT relief

20 either before the BIA or this Court, we deem any such

21 arguments waived. See Yueqing Zhang v. Gonzales, 426 F.3d

22 540, 541 n.1, 545 n.7 (2d Cir. 2005). 
5

1 For the foregoing reasons, the petition for review is

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

3 removal that the Court previously granted in this petition

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

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

6 oral argument in this petition is DENIED in accordance with

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

8 Circuit Local Rule 34.1(b).

9 FOR THE COURT: 

10 Catherine O’Hagan Wolfe, Clerk

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