09-1133-ag 

Muca v. Holder

BIA

Weisel, IJ

A047 279 580

A047 279 581

A047 279 582

A047 279 583

A047 279 584

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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

4 New York, on the 16 day of February, two thousand ten. th

5

6 PRESENT:

7 JOHN M. WALKER, JR.,

8 BARRINGTON D. PARKER,

9 REENA RAGGI,

10 Circuit Judges.

11 ______________________________________

12

13 SANIJE MUCA, VULNET MUCA, ENGJELL MUCA,

14 RILIND MUCA, MILOT MUCA, 

15 Petitioners,

16

17 v. 09-1133-ag

18 NAC

19 ERIC H. HOLDER, JR.,

20 UNITED STATES ATTORNEY GENERAL,

21 Respondent.

22 __________________________________

23

24 FOR PETITIONERS: Sokol Braha, New York, New York.

25

26 F O R RESPONDENT: Tony West, Assistant Attorney

27 General, Civil Division; Francis W.
2

1 Fraser, Senior Litigation Counsel;

2 Jacob A. Bashyrov, Trial Attorney,

3 Office of Immigration Litigation,

4 U.S. Department of Justice,

5 Washington, D.C.

6

7 UPON DUE CONSIDERATION of this petition for review of a

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

9 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

10 review is DENIED.

11 Petitioners, all citizens of Macedonia, seek review of a

12 February 24, 2009 order of the BIA, affirming the June 4,

13 2007 decision of Immigration Judge Robert D. Weisel, denying

14 their application for asylum, withholding of removal, and

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

16 Muca, Nos. A047 279 580/581/582/583/584 (B.I.A. Feb. 24,

17 2009), aff’g Nos. A047 279 580/581/582/583/584 (Immig. Ct.

18 N.Y. City June 4, 2007). We assume the parties’ familiarity

19 with the underlying facts and procedural history in this

20 case.

21 Under the circumstances of this case, we review the

22 decision of the IJ as supplemented by the BIA. See Yan Chen

23 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The

24 applicable standards of review are well-established. See

25 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d
3

1 510, 513 (2d Cir. 2009).

2 The agency properly found that petitioners failed to

3 establish a well-founded fear of persecution, as required

4 for a grant of asylum. 8 U.S.C. § 1101(a)(42). The IJ

5 provided a reasoned and detailed analysis of the record and

6 determined that, while the evidence indicated that ethnic

7 Albanians experience “discrimination and harassment” in

8 Macedonia, the record did not support a finding that they

9 would face persecution. See Ivanishvili v. U.S. Dep’t of

10 Justice, 433 F.3d 332, 341 (2d Cir. 2006) (holding that harm

11 must be sufficiently severe and rise above “mere

12 harassment”); see also Fatin v. INS, 12 F.3d 1233, 1240 (3d

13 Cir. 1993) (“[P]ersecution does not encompass all treatment

14 that our society regards as unfair, unjust, or even unlawful

15 or unconstitutional.”). With respect to petitioners’

16 arguments regarding the potential harm faced by military

17 recruits and the disabled, we are not compelled to reach a

18 conclusion contrary to that of the agency. See Siewe v.

19 Gonzales, 480 F.3d 160, 167 (2d Cir. 2007). Ultimately, the

20 agency reasonably found that the record did not support a

21 finding that petitioners’ fear was objectively reasonable. 

22 See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005)
4

1 (holding that a fear is not objectively reasonable if it

2 lacks “solid support” in the record and is merely

3 “speculative at best”).

4 Insofar as petitioners failed to meet their burden of

5 proof with respect to asylum, they necessarily failed to

6 meet the higher burden of proof required to prevail on their

7 claim for withholding of removal. See Paul v. Gonzales, 444

8 F.3d 148, 156 (2d Cir. 2006). In addition, because

9 petitioners failed to challenge the denial of their CAT

10 claim either before the BIA or this Court, we deem any such

11 argument abandoned. See Gui Yin Liu v. INS, 508 F.3d 716,

12 723 n.6 (2d Cir. 2007).

13 Finally, we find no error in the BIA’s refusal to enjoin

14 petitioners’ removal based on their allegation that the

15 government delayed placing them in removal proceedings. 

16 Rather than showing that the government engaged in

17 “affirmative misconduct,” the record reveals that

18 petitioners played a role in any delay by pursuing visas for

19 which they were ineligible. See Ajdin v. BCIS, 437 F.3d

20 261, 266 (2d Cir. 2006); see also Rojas-Reyes v. INS, 235

21 F.3d 115, 126 (2d Cir. 2000). To the extent petitioners’

22 brief can be read to request that this Court enjoin their
5

1 removal, we decline that request.

2 For the foregoing reasons, the petition for review is

3 DENIED. As we have completed our review, any stay of

4 removal that the Court previously granted in this petition

5 is VACATED, and any pending motion for a stay of removal in

6 this petition is DISMISSED as moot. Any pending request for

7 oral argument in this petition is DENIED in accordance with

8 Federal Rule of Appellate Procedure 34(a)(2), and Second

9 Circuit Local Rule 34.1(b).

10 FOR THE COURT:

11 Catherine O’Hagan Wolfe, Clerk

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