11-944-ag

Veliu v. Holder

BIA

Nelson, IJ

A099 521 162

A099 521 163

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.

At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Daniel Patrick Moynihan

United States Courthouse, 500 Pearl Street, in the City of

New York, on the 31st day of July, two thousand twelve.

PRESENT:

 RICHARD C. WESLEY,

RAYMOND J. LOHIER, JR.,

SUSAN L. CARNEY,

 Circuit Judges. 

_______________________________________

REZEART VELIU, AMIJET KERKUTI,

Petitioners, 

 v. 11-944-ag

NAC 

ERIC H. HOLDER, JR., UNITED STATES

ATTORNEY GENERAL,

Respondent.

_______________________________________

FOR PETITIONERS: Gregory Marotta, Vernon, New Jersey.

FOR RESPONDENT: Tony West, Assistant Attorney

General; Susan K. Houser; Francis W.

Fraser, Senior Litigation Counsel,

Office of Immigration Litigation,

United States Department of Justice,

Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a

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

hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

review is DENIED.

Rezeart Veliu and Amijet Kerkuti, natives of the former

Yugoslavia, ethnic Albanians, and citizens of Macedonia,

seek review of a February 16, 2011 decision of the BIA that

affirmed the February 27, 2009 decision of an immigration

judge (“IJ”) denying Veliu’s application for asylum,

withholding of removal, and relief under the Convention

Against Torture (“CAT”), and the derivative claim of

Kerkuti, Veliu’s wife. In re Rezeart Veliu, Amijet Kerkuti,

Nos. A099 521 162/163 (B.I.A. Feb. 16, 2011), aff’g Nos.

A099 521 162/163 (Immig. Ct. N.Y. City Feb. 27, 2009). We

assume the parties’ familiarity with the underlying facts

and procedural history of this case.

Under the circumstances of this case, we review both

the BIA’s and IJ’s opinions. Zaman v. Mukasey, 514 F.3d

233, 237 (2d Cir. 2008). The applicable standards of review

are well established. 8 U.S.C. § 1252(b)(4)(B); Aliyev v.

Mukasey, 549 F.3d 111, 115 (2d Cir. 2008).

Veliu contends that the agency erred by failing to

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consider whether he established past persecution in

Macedonia. But the IJ reasonably construed his application

as based solely on his claim of a well-founded fear of

future persecution instead, because Veliu testified that he

had never been arrested, detained, beaten, or otherwise

harmed in Macedonia, and the harassment that his family

members allegedly suffered in the past was not sufficient to

establish past persecution as to Veliu. See Shi Liang Lin

v. U.S. Dep’t of Justice, 494 F.3d 296, 308 (2d Cir. 2007)

(concluding “that the statutory scheme unambiguously

dictates that applicants can become candidates for asylum

relief only based on persecution that they themselves have

suffered”); see also Ivanishvili v. U.S. Dep’t of Justice,

433 F.3d 332, 341 (2d Cir. 2006) (holding that in order to

constitute persecution, harm must be sufficiently severe,

rising above “mere harassment”). 

Absent past persecution, an alien may establish

eligibility for asylum by demonstrating a well-founded fear

of future persecution. See 8 C.F.R. § 1208.13(b)(2). Veliu

argues that he established such a well-founded fear based on

the expected consequences of his prior evasion of service in

the Macedonian military. Although past avoidance of

compulsory military service generally does not provide a

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basis for asylum, we have recognized exceptions to this rule

when (1) “an individual’s refusal to serve in the military

leads to disproportionately excessive penalties, inflicted

on him or her because of that individual’s race, religion,

nationality, membership in a particular social group, or

political opinion”; or (2) “an individual . . . is fleeing

to avoid punishment for refusing to join a military force

condemned by the international community.” Islami v.

Gonzales, 412 F.3d 391, 396 (2d Cir. 2005), overruled in

part on other grounds by Shi Liang Lin v. U.S. Dep’t of

Justice, 494 F.3d 296, 305 (2d Cir. 2007) (internal

quotation marks and citations omitted). 

Here, the agency did not err in finding that Veliu

failed to demonstrate a well-founded fear of suffering

disproportionately excessive penalties on account of his

ethnicity for his refusal to serve in the Macedonian

military. As the IJ found, the record evidence indicates

that Macedonian draft evaders, regardless of ethnicity, most

often face a minor fine; they may be imprisoned for up to

two months. We have held that “[p]unishment for violation

of a generally applicable criminal law is not persecution.”

Saleh v. U.S. Dep’t of Justice, 962 F.2d 234, 239 (2d Cir.

1992). Moreover, although the 2007 U.S. Department of State

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Country Report on Human Rights Practices in Macedonia (“2007

Report”) stated that ethnic Albanians face discrimination in

Macedonia, this evidence did not demonstrate that the

discrimination rises to the level of persecution. See

Ivanishvili, 433 F.3d at 341. Moreover, the report advised

that the treatment of ethnic minorities had improved

significantly in recent years. 

Additionally, an expert witness’s conclusory assertion

that there was “a good possibility that [Veliu would] be

mistreated by police” did not establish that Veliu’s fear of

police abuse was objectively reasonable. Neither the

expert’s testimony nor the most recent country conditions

evidence cited well-sourced or detailed reports of police

abuse against ethnic Albanian detainees. See Jian Hui Shao

v. Mukasey, 546 F.3d 138, 160-61, 165 (2d Cir. 2008)

(finding no error in the agency’s determination that

unattributed reports of persecution alone are insufficient

to demonstrate that a fear of persecution is well-founded);

see also Lecaj v. Holder, 616 F.3d 111, 117-19 (2d Cir.

2010) (concluding that a country report’s discussion of an

isolated incident of police abuse against ethnic Albanians

in Montenegro was insufficient to demonstrate that an

applicant’s fear of persecution on account of his ethnicity

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was objectively reasonable). Furthermore, the 2007 Report

observed that police misconduct had been “substantially

reduced,” and that the government had made an effort to

recruit ethnic Albanians to the police force, which was

comprised of 17 percent ethnic Albanians. 

Because the agency reasonably found that Veliu failed

to establish that he had a well-founded fear of being

subjected to disproportionately excessive penalties for

evading the Macedonian military draft, it did not err in

denying him asylum, withholding of removal, and CAT relief:

all three claims rested on the same factual predicate. See

Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

For the foregoing reasons, the petition for review is

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

removal that the Court previously granted in this petition

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

this petition is DISMISSED as moot. Any pending request for

oral argument in this petition is DENIED in accordance with

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

Circuit Local Rule 34.1(b).

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk

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