09-2920-ag

Markaj v. Holder

BIA

Abrams, IJ

A096 263 931

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

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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 21st day of October, two thousand ten.

PRESENT:

REENA RAGGI,

GERARD E. LYNCH,

DENNY CHIN,

 Circuit Judges. 

_______________________________________

DENADA MARKAJ,

Petitioner, 

 v. 09-2920-ag

NAC 

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL

Respondent. ______________________________________

FOR PETITIONER: Joshua E. Bardavid, New York, 

New York.

FOR RESPONDENT: Tony West, Assistant Attorney

General; Melissa Neiman-Kelting,

Senior Litigation Counsel; Stefanie

Notarino Hennes, Trial Attorney,

Office of Immigration Litigation,

Civil Division, United States

Department of Justice, Washington,

D.C.
2

UPON DUE CONSIDERATION of this petition for review of a

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

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

DENIED.

Petitioner Denada Markaj, a native and citizen of

Albania, seeks review of an June 29, 2009 order of the BIA

affirming the November 19, 2007 decision of Immigration Judge

(“IJ”) Steven R. Abrams denying Markaj’s application for

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

Denada Markaj, No. A096 263 931 (B.I.A. June 29, 2009), aff’g

No. A096 263 931 (Immig. Ct. N.Y. City Nov. 19, 2007). We

assume the parties’ familiarity with the underlying facts and

procedural history in this case.

Under the circumstances of this case, we review the IJ’s

decision as supplemented by the BIA’s decision. See Yan Chen

v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the

BIA’s factual findings under the substantial evidence

standard, including those underlying the immigration court’s

determination that an alien has failed to satisfy her burden

of proof, and treat those findings as conclusive unless a

reasonable adjudicator would be compelled to conclude to the

contrary. 8 U.S.C. § 1252(b)(4)(B); Chuilu Liu v. Holder, 575
1 For purposes of the CAT analysis, the IJ assumed

that abduction, forcing a girl into a trafficking ring,

and selling her into sexual slavery would constitute

torture. 

3

F.3d 193, 196 (2d Cir. 2009). 

Substantial evidence supports the BIA’s determination

that Markaj failed to demonstrate that it was “more likely

than not” that she would be subject to torture, 8 C.F.R. 

§ 1208.16(c), “by or at the instigation of or with the consent

or acquiescence of a public official or other person acting in

an official capacity” in Albania, id. § 1208.18(a)(1). De La

Rosa v. Holder, 598 F.3d 103, 109 (2d Cir. 2010). While the

record reflects that trafficking of women for sexual

exploitation occurs in Albania,1 and that some police officers

may be involved in trafficking-related corruption, Markaj has

failed to show that Albanian government officials or other

persons acting in an official capacity acquiesce in such

practices. In reaching this conclusion, the IJ relied on the

2006 U.S. Department of State Country Report on Human Rights

Practices for Albania (“Country Report”), which indicates that

Albania’s laws prohibit human trafficking and that law

enforcement officials are making progress in arresting and

prosecuting human traffickers. The IJ specifically noted the

Country Report’s observations that Albania has: (1) developed
4

a human trafficking strategy and action plan based on United

Nations guidelines that are intended to prevent recruitment

of, and to provide protection for, potential victims; (2)

outlined an approach for prosecuting traffickers; and

(3) arrested and convicted some traffickers. The Country

Report further indicates that during 2006, in contrast to

prior years, there were no reported cases of direct police

involvement in human trafficking in Albania. Based on this

evidence, the agency reasonably determined that the Albanian

government does not acquiesce in trafficking of women. 

Although Markaj argues that the agency erroneously

credited the Country Report over the affidavit of her expert,

Bernd Fischer (the “Fischer Affidavit”), she has failed to

show that the record compels a result contrary to that reached

by the agency. We generally defer to the agency’s evaluation

of documentary evidence, Xiao Ji Chen v. U.S. Dep’t of

Justice, 471 F.3d 315, 341-42 (2d Cir. 2006), and we have

observed that U.S. State Department reports are ordinarily

probative, see Tu Lin v. Gonzales, 446 F.3d 395, 400 (2d Cir.

2006). Here, the IJ found that the Fischer Affidavit did not

address, much less contradict, the Country Report’s

observations regarding the Albanian government’s efforts to
2 While the government argues that Markaj failed to

exhaust her claim that the agency did not adequately

consider the Fischer Affidavit, Markaj did challenge the

IJ’s determination that she failed to establish a

likelihood that she would be subjected to human

trafficking, and we will not hold a petitioner to “the

exact contours of [her] argument below.” See Gill v.

INS, 420 F.3d 82, 86 (2d Cir. 2005). 

5

combat human trafficking. We identify no error in this

conclusion. Furthermore, given the Country Report’s

observation that there were no reported cases of direct police

involvement in human trafficking in Albania during 2006, and

that the Albanian government has successfully prosecuted at

least some traffickers, Markaj’s assertion that police

involvement undermines government efforts to combat human

trafficking does not compel a finding of government

acquiescence. Accordingly, the IJ’s denial of CAT relief was

not erroneous.

To the extent Markaj faults the BIA for not specifically

discussing the Fischer Affidavit, the agency was under no

obligation to do so.2 See Jian Hui Shao v. Mukasey, 546 F.3d

138, 169 (2d Cir. 2008) (“[W]e do not demand that the BIA

expressly parse or refute on the record each individual

argument or piece of evidence offered by the petitioner.”)

(internal quotation marks omitted). Moreover, the BIA

decision does not stand alone, but rather supplements the IJ’s
6

decision, which did explicitly address Markaj’s arguments

concerning the Fischer Affidavit. See Yan Chen v. Gonzales,

417 F.3d at 271. Thus, the agency adequately considered the

documents supporting Markaj’s CAT claim.

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 the Federal Rule

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

34.1(b). 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk