11-1920-ag

Vila v. Holder

BIA

Vomacka, IJ

 A078 323 385

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

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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 3rd day of May, two thousand twelve.

PRESENT:

PETER W. HALL,

GERARD E. LYNCH,

DENNY CHIN,

Circuit Judges. 

_____________________________________

KASTRIOT VILA,

Petitioner, 

 v. 11-1920-ag

NAC

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL,

Respondent.

_____________________________________

FOR PETITIONER: Caridad Pastor Cardinale, Pastor &

Associates, P.C., Troy, Michigan.

FOR RESPONDENT: Tony West, Assistant Attorney

General; William C. Peachey,

Assistant Director; Andrew B.

Insenga, Trial Attorney, Office of
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Immigration Litigation, Civil

Division, United States Department

of Justice, Washington, D.C.

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 Kastriot Vila, a native and citizen of

Albania, seeks review of an April 27, 2011, decision of the

BIA affirming the April 27, 2009, decision of Immigration

Judge (“IJ”) Alan Vomacka denying his application for asylum

and withholding of removal. In re Kastriot Vila, No. A078

323 385 (B.I.A. April 27, 2011), aff’g No. A078 323 385

(Immig. Ct. N.Y. City April 27, 2009). We assume the

parties’ familiarity with the underlying facts and

procedural history of the case.

Under the circumstances of this case, we have reviewed

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

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

“substantial evidence” standard of review, and will “uphold

the IJ’s factual findings if they are supported by

reasonable, substantial and probative evidence in the

record.” Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.
3

2009) (internal quotation marks omitted); see also 8 U.S.C.

§ 1252(b)(4)(B). “By contrast, we review de novo questions

of law and the BIA’s application of law to undisputed fact.” 

Yanqin Weng, 562 F.3d at 513 (internal quotation marks and

brackets omitted).

I. Well-Founded Fear of Persecution

Vila contends that he established a well-founded fear

of persecution based on evidence that members of the

Albanian Socialist Party persecuted him due to his prodemocracy views. Because the IJ assumed past persecution,

Vila was presumed to have a well-founded fear of

persecution, but the IJ reasonably found that the government

rebutted that presumption by establishing that the

circumstances in Albania have fundamentally changed. 

See 8 C.F.R. § 1208.13(b)(1). According to the two State

Department reports and the Organization for Security and

Cooperation in Europe (“OSCE”) reports on which the IJ

relied, the Albanian government has been moving towards

democratization, fostering electoral reforms, and undergoing

peaceful transitions between governments. The reports also

note that the country’s Democratic Party gained control of

the Albanian Parliament in 2005.
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Contrary to Vila’s assertions, the fact that the

Socialist Party maintains popular support in his native

village and in the country does not negate this fundamental

change in interparty relations. Absent contradictory

evidence that the Socialist Party targets members of the

majority Democratic Party, the IJ reasonably relied on these

reports to conclude that Vila no longer had a well-founded

fear of persecution. See Hoxhallari v. Gonzales, 468 F.3d

179, 185-86 (2d Cir. 2006) (finding material change in

Albania when State Department reports identify Albania as

moving away from Communism and towards democratization). 

II. Due Process Claims 

Vila’s claim of IJ bias is also unavailing. In

deciding whether an IJ has exhibited bias or hostility

rising to the level of a due process violation, we examine

whether (1) the alien was provided a “full and fair hearing”

and a “meaningful opportunity to be heard,” Li Hua Lin v.

U.S. Dep’t of Justice, 453 F.3d 99, 104-05 (2d Cir. 2006),

and (2) the IJ’s conduct during the hearing prevents us from

conducting a “meaningful review” of the agency’s decision,

Ali v. Mukasey, 529 F.3d 478, 490 (2d Cir. 2008). 
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First, the IJ afforded sufficient due process when he

took administrative notice of the country reports because he

provided Vila the opportunity to review the reports, object,

and rebut the information within the reports with his own

evidence. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 166-

67 (2d Cir. 2008) (finding that procedural due process is

satisfied when applicant is given opportunity to rebut the

significance of potentially dispositive facts of which the

agency has taken administrative notice). 

Regarding Vila’s perception that the IJ lacked “respect

for the Petitioner” because the IJ suggested that Vila did

not “stay and fight out the struggle” for his country, Vila

takes the IJ’s statement out of context. Read in

conjunction with the entire opinion, the IJ was reasoning

that the rise in popularity of the Democratic Party will

discourage any attacks by the waning Socialist Party on

Democratic Party members. Similarly, the IJ’s comment that

Vila had “the advantage of hindsight” in preparing his case

is of no import because the IJ nevertheless assumed Vila’s

credibility. Accordingly, Vila’s due process claims are

without merit. See Jian Hui Shao, 546 F.3d at 166-67.
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For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, petitioner’s

pending motion for a stay of removal is DENIED as moot.

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk