11-5162 Gega v. Holder BIA Straus, I.J. A200 082 837 

### 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, 2** **007, 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** 1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of New** 3 **York, on the 23 rd** **day of August, two thousand twelve.** 4 5 **PRESENT:** 6 **ROBERT A. KATZMANN,** 7 **BARRINGTON D. PARKER,** 8 **DEBRA ANN LIVINGSTON,** 9 Circuit Judges**.** 10 11 12 **LEONARD GEGA,** 13 Petitioner**,** 14 15 **v. 11-5162** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20 21 22 **FOR PETITIONER: Elyssa N. Williams, Formica Williams,** 23 **P.C., New Haven, Connecticut.** 24 25 **FOR RESPONDENT: Stuart F. Delery, Assistant Attorney** 26 **General; Mary Jane Candaux, Assistant** 27 **Director; Laura M.L. Maroldy, Trial** 28 **Attorney, Office of Immigration** 29 **Litigation, United States Department of** 30 **Justice, Washington, D.C.** 31 321 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 is 4 DISMISSED in part AND DENIED in part. 5 Petitioner Leonard Gega, a native and citizen of Albania, 6 seeks review of a November 16, 2011, decision of the BIA 7 affirming the June 14, 2010, decision of Immigration Judge 8 (“IJ”) Michael W. Straus denying his application for asylum, 9 withholding of removal and relief under the Convention Against 10 Torture (“CAT”). In re Leonard Gega , No. A200 082 837 (B.I.A. 11 Nov. 16, 2011), aff’gNo. A200 082 837 (Immig. Ct. Hartford 12 June 14, 2010). We assume the parties’ familiarity with the 13 underlying facts and procedural history of the case. 14 Under the circumstances of this case, we have reviewed 15 the IJ’s decision as modified by the BIA decision. See Xue 16 Hong Yang v. U.S. Dep’t of Justice , 426 F.3d 520, 522 (2d Cir. 17 2005). The applicable standards of review are well18 established. See8 U.S.C. § 1252(b)(4)(B); see also Chuilu 19 Liu v. Holder , 575 F.3d 193, 196 (2d Cir. 2009). 20 Title 8, Section 1158(a)(3) of the United States Code 21 provides that no court shall have jurisdiction to review the 22 agency’s finding that an asylum application was untimely under 23

28 U.S.C. § 1158(a)(2)(B), or its finding of neither changed 1 nor extraordinary circumstances excusing the untimeliness 2 under 8 U.S.C. § 1158(a)(2)(D). While the courts retain 3 jurisdiction, under 8 U.S.C. § 1252(a)(2)(D), to review 4 constitutional claims and “questions of law,” in this case, 5 Gega has challenged only purely factual determinations and the 6 agency’s exercise of discretion. Therefore, we lack 7 jurisdiction to review the agency’s denial of asylum . See 8 Xiao Ji Chen v. U.S. Dep’t of Justice , 471 F.3d 315, 329-31 9 (2d Cir. 2006). 10 Substantial evidence supports the agency’s conclusion 11 that, even if Gega suffered past persecution in Albania, 12 fundamental changes in conditions in that country rebut the 13 presumption that he has a well-founded fear of future 14 persecution. See8 C.F.R. § 1208.13(b). As noted by the BIA, 15 the 2006 Asylum Profile reflects that the Democratic Party – 16 rather than the communists– is in power in Albania, and that 17 “there are no indications of systemic political persecution” 18 there. Gega himself testified that the Democratic Party 19 controls the police, and that the members of the Zyberi family 20 who had previously threatened him were no longer members of 21 the national or local police force. Further, Gega testified 22

3that his father and five siblings remain in Albania without 1 harm. See Matter of A-E-M- , 21 I. & N. Dec. 1157, 1160 (BIA 2 1998) (finding that an applicant’s claim of future persecution 3 was undercut by the fact that his co-applicant and other 4 relatives remained in Peru without harm after he left). 5 Gega argues that the agency erred in concluding that 6 fundamental changes in Albania rebut the presumption that he 7 has a well-founded fear of future persecution on the basis of 8 religious persecution he experienced in Albania, rather than 9 persecution motivated by his political opinion. Gega, 10 however, points to nothing in the record that supports his 11 claim that he would experience religious persecution if he 12 returned to Albania. Absent “solid support” in the record 13 that his fear is objectively reasonable, Gega’s claim that he 14 fears future persecution is “speculative at best.” Jian Xing 15 Huang v. INS , 421 F.3d 125, 129 (2d Cir. 2005) (per curiam). 16 Finally, because Gega offered no other evidence that he 17 would likely be tortured in Albania, the agency did not err in 18 denying his application for CAT relief as that claim was based 19 on the same factual predicate as his asylum and withholding of 20 removal claims. See Paul v. Gonzales , 444 F.3d 148, 156-57 21 (2d Cir. 2006). 22

4For the foregoing reasons, the petition for review is 1 DISMISSED in part and DENIED in part. As we have completed 2 our review, any stay of removal that the Court previously 3 granted in this petition is VACATED, and any pending motion 4 for a stay of removal in this petition is DISMISSED as moot. 5 Any pending request for oral argument in this petition is 6 DENIED in accordance with Federal Rule of Appellate Procedure 7 34(a)(2), and Second Circuit Local Rule 34.1(b). 8

FOR THE COURT: 9 Catherine O’Hagan Wolfe, Clerk 10 11 12 13 14

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