17

- 1484 Prenga v. Sessions BIA Straus , IJ A 070 449 551 

### 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 COU**  **RT, 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**  1 **for the Second Circuit, held at the Thurgood Marshall**  2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 20**  **th da**  **y of August**  **, two thousand eighteen** 
**.** 4 5 **PRESENT:** 6 **JOHN M. WALKER, JR.**  **,** 7 **BARRINGTON D. PARKER ,**  8 **DEBRA ANN LIVINGSTON ,**  9 **Circuit Judges.** 10

**_____________________________________** 11 12 **GJOVALIN PRENGA ,**  13 **Petitioner ,**  14 15

**v. 17** 

**- 1484**  16 **NAC** 17 **JEFFERSON B. SESSIONS**  **III,** 18 **UNITED STATES ATTORNEY GENERAL**  **,** 19 **Respondent .**  20

**_____________________________________** 21 22 **FOR PETITIONER :**  Alan Michael Strauss , Franklin, 23 ME

. 24 25 **FOR RESPONDENT:** Chad A. Readler, Acting Assistant 26 Attorney General ; Leslie McKay , 27 Senior Litigation Counsel ; Manuel 28 A. Palau , Trial Attorney, Office 29 of Immigration Litigation , United 30 States Department of Justice, 31 Washington, D C. 322 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 petitio n for review 3

is DENIED

. 4

Petitioner Gjovalin Prenga , a stateless native of 5

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

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

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

application for asylum, withholding of removal , and relief 9

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

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

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

the parties’ familiarity with the underlying facts and 13

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

necessary to explain o u r decision to deny the petition

. 15

Under the circumstances of this case, we have review ed 16

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

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

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

findings for substantial evidence and we review legal 20

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

Lecaj v. Holder , 616 F.3d 111, 114 (2d Cir. 2010). 223 **I. Removability**  1

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

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

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

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

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

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

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

§ 1182(a)(6)(E)(i)

. 9

Although Pre nga initially argued that he did not 10

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

contest his removability after his proceedings were 12

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

. 13

Accordingly, he has fail ed to exhaust any challenge to his 14

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

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

order to be preserved for judicial review). 17

**II. Asylum**  18

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

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

of a first offense for which the alien has affirmatively 21

shown that the alien committed the offense for the purpose 224 of assisting, abetting, or aiding only the alien’s spouse, 1

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

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

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

for aiding and abetting the illegal entry of his cousin and 5
her friend rather than a spouse, child, or paren t, the 6

aggravated felony provision applies and bars asylum. 8 7
U.S.C. § 1158(b)(2)(A)(ii), (B)(i). This aggravated felony 8

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

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

felony

. S ee 8 U.S.C. § 1101(a)(43)(N). 11

**III. Withholding of Removal**  12

An applicant for withholding of removal must show a 13

likelihood that his or her life or freedom will be 14

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

nationality, membership in a particular social group, or 16

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

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

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

presumption may be rebutted if the Government shows by a 20

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

fundamental change in circumstances such that the 225 applicant’s life or freedom would not be threatened.” 8 1

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

conduct an individualized analysis that takes into accou nt 3

the applicant ’s particular circumstances and any evidence 4

offered that contradicts country conditions reports. See 5
Lecaj , 616 F.3d at 115

- 16. 6

Substantial evidence supports the IJ ’s conclusion that 7

there has been a fundamental change in Albania. The 8

country reports, particularly the State Department’s 2006 9

Asylum Profile, reflect ed a fundamental change in Albania’s 10

gover nment since the end of the c ommunist regime, stating 11

that there are high levels of religious tolerance and no 12

evidence of retribution against those who have returned to 13

Albania after fleeing the country during communism. See 14

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

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

fundamental change in the political structure and 17

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

that the Government had the burden of proving that 19

conditions have fundamentally changed within the military 20

specifically. However, t he country conditions reports 21

stating that the military is subject to civilian control 226 suggest that there has also been a fundamental change in 1

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

suggesting that the military continues to discriminate 3

based on religion or political opi nion. Moreover, it is 4

unlikely that conditions in the military are relevant to 5
Prenga’s individual circumstances because there is no 6

evidence that he would be forced to serve in the military 7
again or that he would be targeted for escaping a military 8

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

115

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

long as agency also considers “any contrary or 11

countervailing evidence” ). 12

**IV. CAT Relief**  13

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

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

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

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

“all evidence relevant to the possibility of future 18

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

regarding the possibility of internal relocation, 20

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

rights,” and “[o]ther relevant information regarding 227 conditions in the country of removal.” 8 C.F.R. § 1

1208.16(c)(3)( i)

- (iv). However, evidence of past torture 2

does not create a presumption that an applicant will be 3

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

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

on the likelihood that the alien will be t ortured . . . 6

regardless of the alien’s . . . past experiences. Unlike 7
an asylum claim, the CAT claim . . . requires a showing 8

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

Prenga argues that his past mistreatment amounted to 10

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

there is no evidence that he was pardoned for his mi litary 12

conviction and escape. However, the 2006 Asylum Profile 13

reported that the post

- c ommunist Albanian government has not 14

targeted returning Albanians who for merly opposed or fled 15

c ommunist rule, and none of the other evidence in the record 16

contradicts this. Prenga did not submit letters from his 17

parents in Albania or other evidence that the government is 18

personally interested in him . G iven the lack of eviden ce 19

that similarly situated individuals have been arrested or 20

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

warrant relief. See Mu Xiang Lin v. U.S. Dep’t of Justice , 228 432 F.3d 156, 160 (2d Cir. 2005) (petitioner must establish 1

that someone in his particular circumstances would more 2

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

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

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

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

best.”). 7
For the foregoing reasons, the petition for review is 8

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

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

for oral argument is DENIED in accordance with Federal Rule 11

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

Rule 34.1(b). 13

FOR THE COURT: 14 Catherine O ’ Hagan Wolfe, Clerk 15