09-2307-ag

Gashi v. Holder

BIA

Bain, IJ

A098 283 805

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 29 day of June, two thousand ten. th

PRESENT:

JON O. NEWMAN,

ROBERT A. KATZMANN,

PETER W. HALL,

 Circuit 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 Litigation,

Civil Division, United States Department of

Justice, Washington, D.C.
We note, however, that the IJ’s decision contains no discussion of

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the Government’s substantial evidence offered to rebut the presumption

of future persecution. The IJ stated only, “The Government has not

rebutted this presumption.”

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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 Fatmir Gashi, a native of Yugoslavia 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. City 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. 2005). 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). 
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 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 if the 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 account 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

does not “harbor the same animosities as the old,” or 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 successfully rebutted any presumption of

persecution because the background materials and testimony

showed that: (1) U.N. and Kosovar forces are “able and

willing” to protect the legal rights of Albanians; and (2)

Gashi’s family remained unharmed in Kosovo. See Alibasic v.
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Mukasey, 547 F.3d 78, 86-87 (2d Cir. 2008). 

As an initial matter, we find unavailing Gashi’s

assertion that because the BIA agreed with the government’s

position, it necessarily failed to conduct an independent

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 suffer from ethnic tension between Serbs and

Albanians. However, the BIA did not dispute that ethnic

tension continues to plague Kosovo, but noted that most of the

violence is now directed at ethnic Serbs and that Kosovar

authorities 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

remained in Kosovo unharmed. See Melgar de Torres v. Reno,

191 F.3d 307, 313 (2d Cir. 1999). In light of these findings,

the BIA reasonably 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
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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

similarly unavailing, as the record does not compellingly

suggest that the BIA ignored any material evidence that he

submitted in support of his claim. See Jian Hui Shao v.

Mukasey, 546 F.3d 138, 169 (2d Cir. 2008). To the extent

Gashi argues the BIA failed to conduct the requisite minimal

level of analysis, we find the BIA’s discussion 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

process rights by taking judicial notice of changed country

conditions in Kosovo is without merit. The BIA did not take

notice of any documents outside the administrative record,

but rather determined that the country conditions evidence

submitted before the IJ did not demonstrate a basis for an

objectively reasonable fear of future persecution. See 8

C.F.R. § 1003.1(d)(3); Alibasic, 547 F.3d at 85. Because the
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BIA’s decision was supported by substantial evidence,

inasmuch as Gashi’s claim for withholding of removal and CAT

relief share the same factual predicate as his claim for

asylum, the agency’s finding is fatal to those claims as

well. 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