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, 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 New

York, on the 23rd 4 day of August, two thousand twelve.

5

6 PRESENT:

7 ROBERT A. KATZMANN,

8 BARRINGTON D. PARKER,

9 DEBRA ANN LIVINGSTON,

10 Circuit Judges.

11 

12

13 LEONARD GEGA,

14 Petitioner, 

15

16 v. 11-5162

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL,

20 Respondent.

21 

22 

23 FOR PETITIONER: Elyssa N. Williams, Formica Williams,

24 P.C., New Haven, Connecticut.

25

26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney

27 General; Mary Jane Candaux, Assistant

28 Director; Laura M.L. Maroldy, Trial

29 Attorney, Office of Immigration

30 Litigation, United States Department of

31 Justice, Washington, D.C.

32
1

2 UPON DUE CONSIDERATION of this petition for review of a

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

4 ORDERED, ADJUDGED, AND DECREED that the petition for review is

5 DISMISSED in part AND DENIED in part.

6 Petitioner Leonard Gega, a native and citizen of Albania,

7 seeks review of a November 16, 2011, decision of the BIA

8 affirming the June 14, 2010, decision of Immigration Judge

9 (“IJ”) Michael W. Straus denying his application for asylum,

10 withholding of removal and relief under the Convention Against

11 Torture (“CAT”). In re Leonard Gega, No. A200 082 837 (B.I.A.

12 Nov. 16, 2011), aff’g No. A200 082 837 (Immig. Ct. Hartford

13 June 14, 2010). We assume the parties’ familiarity with the

14 underlying facts and procedural history of the case.

15 Under the circumstances of this case, we have reviewed

16 the IJ’s decision as modified by the BIA decision. See Xue

17 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.

18 2005). The applicable standards of review are well19 established. See 8 U.S.C. § 1252(b)(4)(B); see also Chuilu

20 Liu v. Holder, 575 F.3d 193, 196 (2d Cir. 2009).

21 Title 8, Section 1158(a)(3) of the United States Code

22 provides that no court shall have jurisdiction to review the

23 agency’s finding that an asylum application was untimely under

2
1 8 U.S.C. § 1158(a)(2)(B), or its finding of neither changed

2 nor extraordinary circumstances excusing the untimeliness

3 under 8 U.S.C. § 1158(a)(2)(D). While the courts retain

4 jurisdiction, under 8 U.S.C. § 1252(a)(2)(D), to review

5 constitutional claims and “questions of law,” in this case,

6 Gega has challenged only purely factual determinations and the

7 agency’s exercise of discretion. Therefore, we lack 

8 jurisdiction to review the agency’s denial of asylum. See

9 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329-31

10 (2d Cir. 2006).

11 Substantial evidence supports the agency’s conclusion

12 that, even if Gega suffered past persecution in Albania,

13 fundamental changes in conditions in that country rebut the

14 presumption that he has a well-founded fear of future

15 persecution. See 8 C.F.R. § 1208.13(b). As noted by the BIA,

16 the 2006 Asylum Profile reflects that the Democratic Party –

17 rather than the communists– is in power in Albania, and that

18 “there are no indications of systemic political persecution”

19 there. Gega himself testified that the Democratic Party

20 controls the police, and that the members of the Zyberi family

21 who had previously threatened him were no longer members of

22 the national or local police force. Further, Gega testified

3
1 that his father and five siblings remain in Albania without

2 harm. See Matter of A-E-M-, 21 I. & N. Dec. 1157, 1160 (BIA

3 1998) (finding that an applicant’s claim of future persecution

4 was undercut by the fact that his co-applicant and other

5 relatives remained in Peru without harm after he left).

6 Gega argues that the agency erred in concluding that

7 fundamental changes in Albania rebut the presumption that he

8 has a well-founded fear of future persecution on the basis of

9 religious persecution he experienced in Albania, rather than

10 persecution motivated by his political opinion. Gega,

11 however, points to nothing in the record that supports his

12 claim that he would experience religious persecution if he

13 returned to Albania. Absent “solid support” in the record

14 that his fear is objectively reasonable, Gega’s claim that he

15 fears future persecution is “speculative at best.” Jian Xing

16 Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (per curiam).

17 Finally, because Gega offered no other evidence that he

18 would likely be tortured in Albania, the agency did not err in

19 denying his application for CAT relief as that claim was based

20 on the same factual predicate as his asylum and withholding of

21 removal claims. See Paul v. Gonzales, 444 F.3d 148, 156-57

22 (2d Cir. 2006).

4
1 For the foregoing reasons, the petition for review is

2 DISMISSED in part and DENIED in part. As we have completed

3 our review, any stay of removal that the Court previously

4 granted in this petition is VACATED, and any pending motion

5 for a stay of removal in this petition is DISMISSED as moot.

6 Any pending request for oral argument in this petition is

7 DENIED in accordance with Federal Rule of Appellate Procedure

8 34(a)(2), and Second Circuit Local Rule 34.1(b).

9 FOR THE COURT: 

10 Catherine O’Hagan Wolfe, Clerk

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