09 -23 07 -ag

Gashi v. Holder BIA Bain, IJ A098 283 805 

### UNITE D STATES C OURT OF AP PEALS FOR T HE SE COND CIRCU IT 

# SUM MARY ORDE R

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 I T O N ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at t he Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 29 day of June, two thousand ten. th PRESENT: JON O. NEWMAN,

ROBERT A. KATZMANN, PETER W. HALL, C ircuit Judges .

____________________________________ FATMIR GASHI,

Petitioner , v. 09-2307-ag NAC ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL

Respondent .

___________________________________ FOR PETITIONER: Glenn H. Bank, New York, New York. FOR RESPONDENT: Michael F. Hertz, Deputy Assistant Attorney General, Civil Division; Carl H. McIntyre,Assistant Director; T. Bo Stanton, Attorney, Office of Immigration L itigation, Civil Division, United States Department of Justice, Washington, D.C.We not e, howeve r, tha t t he IJ’ s dec isi on con tai ns no dis cus sio n o f 1 t h eGov e r nme n t ’ s s u b s t a n t i a l e v i d e n c eo f f e r e dt or e b u tt h ep r e s ump t ion of fut urepe rse cut ion . TheIJ st ated onl y, “Th e Gove rnmentha s n ot rebutt ed thi s p res ump tio n.” -2- UPON DUE CONSIDERATION o f t h is petition for review of a Board of Immigration Appeals (“BIA”) decisio n, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED. Petitioner Fatmir Gashi, a native of Yugos l a via and a citizen of Kosovo, seeks review of a May 6, 2009, order of the BIA reversing the July 13, 2006, decision of Immigration Judge (“IJ”) Terry Bain granting Gashi’s application for asylum. In re Fatmir Gashi , No. A098 283 805 (B.I.A. May 6, 2009), rev’g No. A098 283 805 (Immig. Ct . N . Y . C i ty July 13, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case. Under the circumstances of this case, we review only the decision of the BIA. See Yan Chen v. Gonzales , 417 F.3d 268, 1 271 (2d Cir. 200 5 ) . The applicable standards of review are well-established. See 8 U.S.C. § 1252 ( b ) (4)(B); see also Manzur v. U.S. Dep’t of Homeland Sec. , 494 F.3d 281, 289 (2d Cir. 2007); Salimatou Bah v. Mukasey , 529 F.3d 99, 110 (2d Cir. 2008).-3-

In its decision, the BIA found that even assuming Gashi had suffered past persecution, any presumption of a likelihood of future persecution had been rebutted. When an applicant for asylum has been found to have suffered past persecution, the presumption of a well-founded fear of future persecution may be rebutted i f t h e BIA finds that there has been a fundamental change in circumstances such that the applicant’s life or freedom would no longer be threatened in the country of removal on ac c o u n t of one of the five statutory grounds. 8 C.F.R. §§ 1208.16(b)(1)(i)(A), 1208.13(b)(1)(i)(A). The BIA has elaborated that the presumption may be rebutted if, in the applicant’s country, the offending government has been overthrown and no longer wields influence, the new leadership do e s n o t “ h a r b o r t h e s a m e a n i m o s i t i e s a s t h e o l d , ” o r human rights practices have improved. See In re N-M-A, 22 I & N Dec. 312, 320-21 (BIA 1998); In re O-Z-, 22 I & N Dec. 23, 26-27 (BIA 1998). We find no error in the agency’s conclusion that the government success fully rebutted any presumption of persecution because the bac k g r ound materials and testimony showed that: (1) U.N. and Kosovar forces a r e “able and willing” to protect the leg a l rights of Albanians; and (2) Gashi’s family remained unharmed in Kosovo. See Alibasic v.-4-

Mukasey , 547 F.3d 78, 86-87 (2d Cir. 2008). As an initial matter, we find unavailin g G ashi’s assertion that because the BIA agreed with the g overnment’s pos i t i o n , i t n e c e s s a r i l y f a i l e dt o c o n d u c t a n i n d e p e ndent review of his claims. Gashi also argues that the BIA’s finding regarding changed country conditions in Kosovo is erroneous because the BIA ignored evidence in the record demonstrating that Kosovo continues to suf f e r from ethnic tension between Serbs and Albanians. However, th e B I A d id not dispute that ethnic tension continues to plague Kosovo, but noted that most of the violence is now directed at e t h n i c Serbs and that Kosovar authorit i es have actively pursued police officers for their roles in the 2004 riots. Moreover, the BIA reasonably found that Gashi’s claim of a well-founded fear of future persecution was diminished by the fact that his family members

r emained in Kosovo unharmed. S e e Me l g a rd e T o r r e s v . Reno , 191 F.3d 307, 313 (2d Cir. 1999). In light of these findings, the BIA r easonably determined that the government met its burden of proof. Although Gashi argues that the BIA placed undue weight on the Department of State country conditions reports, we accord-5-

deference to the agency’s evaluation of documentary evidence. See Xiao Ji Chen v. United States Dep’t of Justice , 471 F.3d 315, 324 (2d Cir. 2006). Gashi’s argument that the BIA failed to consider his testimony and documentary evidence is

s i m i l arly unavailing, as the record does not compellingly suggest that the BI A i gnored any material evidence that he sub m i t t e d in support of his claim. See Jian Hui Shao v. Mukasey , 546 F.3d 138, 1 6 9 ( 2 d Cir. 2008). To the extent Gashi argues the BIA failed to conduct the requisite minimal level of analysis, we find the BIA’s discuss ion of both Gashi’s past persecution and the increased efforts on the part of Kosovar authorities to apprehend those responsible for the 2004 riots sufficient to enable us to conduct our review. See Alibasic , 547 F.3d at 86-87. Finally, Gashi’s argument that the BIA violated his due proces s r ights by taking judicial notice of changed country conditions in Kosovo is without merit. The BIA did not take notice of any documents outsid e the administrative record, but rather determined that the country conditions evidence submitted before the IJ did no t demonstrate a basis for an objectively reasonable f e a r of future persecution. See 8 C.F.R. § 1003.1(d)(3); Alibasic , 547 F.3d at 85. Because the-6-

BIA’ s d e c i s i o n w a s s u p p o r t e db y s u b s t a n t i a l e v i d e n c e, inasmuch as Gashi’s claim for withholding of removal and CAT reli e f s h a r e t h e s a m e f a c t u a l p r e d i c a t e a s h i s c l a i m for asyl u m , t h e agency’s finding is fatal to those claims as

w e ll. See Paul v. Gonzales , 444 F.3d 148, 156 (2d Cir. 2006). For the foregoing rea s o n s , 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 Pr o c e d u re 34(a)(2), and Second Circuit Local Rule 34.1(b). FOR THE COURT: Catherine O’Hagan Wolfe, Clerk