15-167 Maliqi v. Lynch BIA Loprest, IJ A201 105 870 

### 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 TO 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**  1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **14 th** **day of December, two thousand sixteen.** 4 5 **PRESENT:** 6 **JOSÉ A. CABRANES,** 7 **ROBERT D. SACK,** 8 **GERARD E. LYNCH,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **LIRIDON MALIQI,** 13 Petitioner **,** 14 15 **v. 15-167** 16 **NAC** 17 **LORETTA E. LYNCH, UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Sokol Braha, New York, New York; 23 Adrian Spirollari, Brooklyn, New 24 York. 25 26 **FOR RESPONDENT:** Benjamin C. Mizer, Principal Deputy 27 Assistant Attorney General; Cindy S. 28 Ferrier, Assistant Director; 29 Jessica E. Burns, Trial Attorney, 30 Office of Immigration Litigation, 31 United States Department of Justice, 32 Washington, D.C. 332 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review is 3

DENIED. 4 Petitioner Liridon Maliqi, a native and citizen of Kosovo, 5 seeks review of a December 23, 2014, decision of the BIA 6 affirming a February 11, 2013, decision of an Immigration Judge 7 (“IJ”) denying him asylum, withholding of removal, and relief 8 under the Convention Against Torture (“CAT”). In re Liridon 9 Maliqi, No. A201 105 870 (B.I.A. Dec. 23, 2014), aff’gNo. A201 10 105 870 (Immig. Ct. N.Y. City Feb. 11, 2013). We assume the 11 parties’ familiarity with the underlying facts and procedural 12 history in this case. 13 We have reviewed the IJ’s and the BIA’s decisions “for the 14 sake of completeness.” Wangchuck v. Dep’t of Homeland Sec. , 15 448 F.3d 524, 528 (2d Cir. 2006). The applicable standards of 16 review are well established. See 8 U.S.C. § 1252(b)(4)(B); see 17 also Yanqin Weng v. Holder , 562 F.3d 510, 513 (2d Cir. 2009). 18 The agency did not err in finding that Maliqi failed to 19 establish past persecution or a well-founded fear of 20 persecution in Kosovo. Maliqi asserted that a family in Kosovo 21 had threatened his life because they blamed his father for the 223 Serbian military’s killing of one of their relatives during the 1

Kosovo war. 2 A valid past persecution claim can be based on harm other 3

than threats to life or freedom, including non-life-threatening 4 violence and physical abuse, Beskovic v. Gonzales , 467 F.3d 223, 5

226 n.3 (2d Cir. 2006), but the harm must be sufficiently severe, 6 rising above “mere harassment,” Ivanishvili v. U.S. Dep’t of 7 Justice , 433 F.3d 332, 341 (2d Cir. 2006). In evaluating a past 8 persecution claim, the agency must consider the harm suffered 9 in the aggregate. Poradisova v. Gonzales , 420 F.3d 70, 79-80 10 (2d Cir. 2005). 11 The agency did not err in finding that Maliqi’s experiences 12 in Kosovo did not constitute persecution. Maliqi’s claim of 13 past persecution rested on unfulfilled threats directed at him 14 and his brothers, and an incident after he left Kosovo, in which 15 two unidentified men grabbed and thr eatened his sister in the 16 family’s home. These incidents, even considered cumulatively, 17 did not constitute persecution against Maliqi. See Ci Pan v. 18 U.S. Att’y General , 449 F.3d 408, 412-13 (2d Cir. 2006) 19 (recognizing that unfulfilled threats do not amount to 20 persecution); Tao Jiang v. Gonzales , 500 F.3d 137, 141 (2d Cir. 21 2007) (providing that an asylum applicant cannot establish 22 persecution based on harm to a family member unless the 234 applicant was “within the zone of risk when the family member 1 was harmed, and suffered some continuing hardship after the 2 incident.”). 3 Absent past persecution, an alien may establish 4 eligibility for asylum by demonstrating a well-founded fear of 5 future persecution. 8 C.F.R. § 1208.13(b)(2). To establish 6 a well-founded fear of persecution, an applicant must show that 7 he subjectively fears persecution and that his fear is 8 objectively reasonable. Ramsameachire v. Ashcroft , 357 F.3d 9 169, 178 (2d Cir. 2004). 10 The agency reasonably determined that Maliqi’s fear of 11 persecution in Kosovo was not objectively reasonable. Maliqi 12 and his younger brothers remained unharmed in Kosovo from 2001, 13 when the family who sought revenge first threatened them, until 14 the end of 2010, when Maliqi left Kosovo for the United States. 15 During that time, Maliqi and his brothers lived in the family’s 16 home, walked to school daily, and otherwise lived openly without 17 taking any safety precautions other than avoiding the family 18 who sought revenge against them. As Maliqi was able to avoid 19 harm for almost a decade without altering his daily life, the 20 agency did not err in finding that his fear of persecution was 21 not objectively reasonable. See Jian Xing Huang v. U.S. INS , 22 421 F.3d 125, 129 (2d Cir. 2005) (“In the absence of solid 235 support in the record . . . , [an applicant’s] fear is 1 speculative at best”). 2 Maliqi argues that the IJ misconstrued the record when he 3 found that Maliqi and his brothers were last threatened in 2005 4 and that the IJ ignored the assault on his sister in finding 5 that his fear was not objectively reasonable. There is no 6 indication that the IJ ignored this evidence. The IJ correctly 7 noted that the last direct threa t to Maliqi (as opposed to word 8 of mouth through his cousin) occurred in 2005. And the IJ 9 acknowledged the assault on Maliqi’s sister in 2011, during 10 which two unidentified men accosted her in the family home 11 before fleeing without harming her when her parents returned 12 home. The IJ did not err in concluding that, despite this 13 incident, Maliqi’s ability to live unharmed in Kosovo for six 14 years after the last direct threat to him was dispositive of 15 his claim of an objectively reasonable fear of persecution. 16 See Siewe v. Gonzales , 480 F.3d 160, 167 (2d Cir. 2007) (“Where 17 there are two permissible views of the evidence, the 18 factfinder’s choice between them cannot be clearly 19 erroneous.”); see also Melgar de Torres , 191 F.3d 307, 313 (2d 20 Cir. 1999). 21 Alternatively, the IJ reasonably concluded that Maliqi 22 failed to demonstrate a well-founded fear of persecution 236 because he did not establish that the government of Kosovo was 1 unable or unwilling to protect him. See Pan v. Holder , 777 F.3d 2 540, 543 (2d Cir. 2015). Although police were unable to act 3 on the threats Maliqi’s family reported in the early 2000s, 4 Maliqi did not demonstrate that the same conditions prevailed 5 at the time of his hearing in 2012. He did not know whether 6 his family reported the assault on his sister in 2011, and the 7 2010 U.S. State Department Human Rights Report on Kosovo stated 8 that the European Union Rule of Law Mission in Kosovo had 9 deployed police and other resources to assist the government, 10 the Police Inspectorate of Kosovo investigated civilian 11 complaints against the police, and domestic and international 12 human rights groups operated freely in the country. The report 13 gave no indication that police are unable or unwilling to 14 protect citizens in circumstances such as Maliqi’s. 15 Because Maliqi failed to demonstrate a well-founded fear 16 of persecution, the agency did not err in denying him asylum, 17 withholding of removal, and CAT relief because all three claims 18

were based on the same factual predicate. See Paul v. Gonzales , 19 444 F.3d 148, 156-57 (2d Cir. 2006). Accordingly, the Court 20 need not consider the agency’s alternative determination that 21 Maliqi failed to demonstrate that the harm he fears is on account 22 of a protected ground. See INS v. Bagamasbad , 429 U.S. 24, 25 237 (1976) (“As a general rule courts and agencies are not required 1 to make findings on issues the decision of which is unnecessary 2 to the results they reach.”). 3 For the foregoing reasons, the petition for review is 4 DENIED. Petitioner’s request for oral argument is DENIED in 5 accordance with Federal Rule of Appellate Procedure 34(a)(2), 6 and Second Circuit Local Rule 34.1(b). 7

8 FOR THE COURT: 9 Catherine O =Hagan Wolfe, Clerk 10