17-1484

Prenga v. Sessions

BIA

Straus, IJ

A070 449 551

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.

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

2 for the Second Circuit, held at the Thurgood Marshall 

3 United States Courthouse, 40 Foley Square, in the City of 

New York, on the 20th 4 day of August, two thousand eighteen.

5

6 PRESENT:

7 JOHN M. WALKER, JR.,

8 BARRINGTON D. PARKER,

9 DEBRA ANN LIVINGSTON,

10 Circuit Judges.

11 _____________________________________

12

13 GJOVALIN PRENGA,

14 Petitioner,

15

16 v. 17-1484

17 NAC

18 JEFFERSON B. SESSIONS III,

19 UNITED STATES ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Alan Michael Strauss, Franklin, 

24 ME.

25

26 FOR RESPONDENT: Chad A. Readler, Acting Assistant 

27 Attorney General; Leslie McKay, 

28 Senior Litigation Counsel; Manuel 

29 A. Palau, Trial Attorney, Office 

30 of Immigration Litigation, United 

31 States Department of Justice, 

32 Washington, DC.
2

1 UPON DUE CONSIDERATION of this petition for review of a 

2 Board of Immigration Appeals (“BIA”) decision, it is hereby 

3 ORDERED, ADJUDGED, AND DECREED that the petition for review 

4 is DENIED.

5 Petitioner Gjovalin Prenga, a stateless native of 

6 Albania, seeks review of an April 24, 2017, decision of the 

7 BIA affirming a January 11, 2016, decision of an Immigration 

8 Judge (“IJ”) finding Prenga removable and denying his 

9 application for asylum, withholding of removal, and relief 

10 under the Convention Against Torture (“CAT”). In re Gjovalin 

11 Prenga, No. A 070 449 551 (B.I.A. Apr. 24, 2017), aff’g No. A

12 070 449 551 (Immig. Ct. Hartford Jan. 11, 2016). We assume 

13 the parties’ familiarity with the underlying facts and 

14 procedural history in this case, which we reference only as 

15 necessary to explain our decision to deny the petition.

16 Under the circumstances of this case, we have reviewed

17 both the IJ’s and BIA’s decisions “for the sake of 

18 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 

19 524, 528 (2d Cir. 2006). We review the agency’s factual 

20 findings for substantial evidence and we review legal 

21 questions, including the application of law to fact, de novo. 

22 Lecaj v. Holder, 616 F.3d 111, 114 (2d Cir. 2010).
3

1 I. Removability

2 The Immigration and Nationality Act (“INA”) provides 

3 that “[a]ny alien who at any time knowingly has encouraged, 

4 induced, assisted, abetted, or aided any other alien to 

5 enter or to try to enter the United States in violation of 

6 law is inadmissible.” 8 U.S.C. § 1182(a)(6)(E)(i). Prenga 

7 was convicted of alien smuggling pursuant to 8 U.S.C. 

8 § 1324(a)(2) and was charged as removable under 8 U.S.C.

9 § 1182(a)(6)(E)(i). 

10 Although Prenga initially argued that he did not 

11 knowingly aid and abet an unlawful entry, he did not

12 contest his removability after his proceedings were 

13 reopened, either before the IJ or on appeal to the BIA. 

14 Accordingly, he has failed to exhaust any challenge to his 

15 removability. Foster v. U.S. INS, 376 F.3d 75, 78 (2d Cir. 

16 2004) (issues must generally be raised before the BIA in 

17 order to be preserved for judicial review). 

18 II. Asylum

19 The INA provides that an offense under 8 U.S.C. 

20 § 1324(a)(2) is an aggravated felony, “except in the case 

21 of a first offense for which the alien has affirmatively 

22 shown that the alien committed the offense for the purpose 
4

1 of assisting, abetting, or aiding only the alien’s spouse, 

2 child, or parent (and no other individual) to violate a 

3 provision of this chapter.” 8 U.S.C. § 1101(a)(43)(N). 

4 Because Prenga was convicted under 8 U.S.C. § 1324(a)(2)(A) 

5 for aiding and abetting the illegal entry of his cousin and 

6 her friend rather than a spouse, child, or parent, the 

7 aggravated felony provision applies and bars asylum. 8 

8 U.S.C. § 1158(b)(2)(A)(ii), (B)(i). This aggravated felony 

9 provision applies to offenses under 8 U.S.C. § 1324(a)(2) 

10 without regard to whether the offense is a misdemeanor or a 

11 felony. See 8 U.S.C. § 1101(a)(43)(N). 

12 III. Withholding of Removal 

13 An applicant for withholding of removal must show a 

14 likelihood that his or her life or freedom will be 

15 threatened on account of the applicant’s “race, religion, 

16 nationality, membership in a particular social group, or 

17 political opinion.” 8 U.S.C. § 1231(b)(3)(A). A past 

18 threat to life or freedom creates a presumption of a future 

19 threat. 8 C.F.R. § 1208.16(b)(1). However, this 

20 presumption may be rebutted if the Government shows by a 

21 “preponderance of the evidence” that “[t]here has been a 

22 fundamental change in circumstances such that the 
5

1 applicant’s life or freedom would not be threatened.” 8 

2 C.F.R. § 1208.16(b)(1)(i)(A), (ii). The agency must 

3 conduct an individualized analysis that takes into account 

4 the applicant’s particular circumstances and any evidence 

5 offered that contradicts country conditions reports. See 

6 Lecaj, 616 F.3d at 115-16. 

7 Substantial evidence supports the IJ’s conclusion that 

8 there has been a fundamental change in Albania. The 

9 country reports, particularly the State Department’s 2006 

10 Asylum Profile, reflected a fundamental change in Albania’s 

11 government since the end of the communist regime, stating 

12 that there are high levels of religious tolerance and no 

13 evidence of retribution against those who have returned to 

14 Albania after fleeing the country during communism. See 

15 Hoxhallari v. Gonzales, 468 F.3d 179, 188 (2d Cir. 2006) 

16 (holding that “there is no doubt that there has been a 

17 fundamental change in the political structure and 

18 government of Albania, beginning in 1990”). Prenga argues 

19 that the Government had the burden of proving that 

20 conditions have fundamentally changed within the military 

21 specifically. However, the country conditions reports 

22 stating that the military is subject to civilian control 
6

1 suggest that there has also been a fundamental change in 

2 the military, and there is no evidence in the record 

3 suggesting that the military continues to discriminate 

4 based on religion or political opinion. Moreover, it is 

5 unlikely that conditions in the military are relevant to 

6 Prenga’s individual circumstances because there is no

7 evidence that he would be forced to serve in the military 

8 again or that he would be targeted for escaping a military 

9 prison during the communist era. See Lecaj, 616 F.3d at 

10 115-16 (allowing reliance on State Department reports, as 

11 long as agency also considers “any contrary or 

12 countervailing evidence”). 

13 IV. CAT Relief

14 An applicant for CAT relief must “establish that it is 

15 more likely than not that he . . . would be tortured if 

16 removed to the proposed country of removal.” 8 C.F.R. 

17 §§ 1208.16(c)(2), 1208.17(a). The agency must consider 

18 “all evidence relevant to the possibility of future 

19 torture,” including “[e]vidence of past torture,” evidence 

20 regarding the possibility of internal relocation, 

21 “[e]vidence of gross, flagrant, or mass violations of human 

22 rights,” and “[o]ther relevant information regarding 
7

1 conditions in the country of removal.” 8 C.F.R. § 

2 1208.16(c)(3)(i)-(iv). However, evidence of past torture 

3 does not create a presumption that an applicant will be 

4 tortured in the future. Ramsameachire v. Ashcroft, 357 

5 F.3d 169, 185 (2d Cir. 2004) (“A CAT claim focuses solely 

6 on the likelihood that the alien will be tortured . . . 

7 regardless of the alien’s . . . past experiences. Unlike 

8 an asylum claim, the CAT claim . . . requires a showing 

9 with respect to future, rather than past, treatment.”). 

10 Prenga argues that his past mistreatment amounted to 

11 torture and that he is likely to face torture again because 

12 there is no evidence that he was pardoned for his military 

13 conviction and escape. However, the 2006 Asylum Profile 

14 reported that the post-communist Albanian government has not

15 targeted returning Albanians who formerly opposed or fled 

16 communist rule, and none of the other evidence in the record 

17 contradicts this. Prenga did not submit letters from his 

18 parents in Albania or other evidence that the government is 

19 personally interested in him. Given the lack of evidence 

20 that similarly situated individuals have been arrested or 

21 mistreated, Prenga’s fear of torture is too speculative to 

22 warrant relief. See Mu Xiang Lin v. U.S. Dep’t of Justice, 
8

1 432 F.3d 156, 160 (2d Cir. 2005) (petitioner must establish 

2 that someone in his particular circumstances would more 

3 likely than not face torture); cf. Jian Xing Huang v. U.S. 

4 INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In the absence of 

5 solid support in the record for [petitioner’s] assertion that 

6 he will be subjected to [future harm], his fear is speculative at 

7 best.”).

8 For the foregoing reasons, the petition for review is 

9 DENIED. As we have completed our review, Prenga’s motion to 

10 stay removal is DENIED as moot. Petitioner’s pending request 

11 for oral argument is DENIED in accordance with Federal Rule 

12 of Appellate Procedure 34(a)(2), and Second Circuit Local 

13 Rule 34.1(b).

14 FOR THE COURT: 

15 Catherine O’Hagan Wolfe, Clerk