09-291 4-ag

Lushajv.Holder BIA Sichel, IJ A097 966 139 

### UNITED STATES COURT OFAPPEALS FOR THE SE COND CIRCU IT 

# SUM MARY 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 MU ST S ERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second C ir cuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 4 day of June, two thousand ten. th PRESENT: JON O. NEWMAN,

ROBERT A. KATZMANN, PETER W. HALL, C ircuit Judges .

_______________________________________ LINDITA LUSHAJ,

Petitioner ,

v. 09-2914-ag NAC ERIC H. HOLDER, JR., ATTORNEY GENERAL,

Respondent .

_______________________________________ FOR PETITIONER: Howard Baker, New York, New York. FOR RE SP ONDE NT : Tony West, Asst. Atty. Gen er al , Luis E. Perez, Senior Litigation Counsel, Elizabeth D. Kurlan, Trial Atty., Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.-2-

UPON DUE CONSIDERATION of this petition for re view of a decision of the Board of Immi gration Appeals (“BIA”), it is hereby ORDERED, ADJUDGED, AND DECREED, that the petition for review is DENIED. Petitioner Lindita Lushaj, a native and citizen of Albania, seeks review of a June 12, 2009, orde r of t he BIA, reversing the April 25, 2007, decisi on of Immigration Judge (“IJ”) H el en Sichel, which had granted her application for asylum. In re Lindita Lushaj , No. A097 966 139 (B.I.A. June 12, 2009), rev’g No. A097 966 139 (Immig. Ct. N.Y. City Apr. 25, 2007). We assume the parties’ familiarity with the underlying facts and procedural history of the case. Under the circumstances of this case, we review only the decision of the BIA. See Yan Chen v. Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). The ap pl icable standards of review are well-established. See8 U.S.C. § 1252 (b)(4)(B); Yanqin Weng v. Holder , 562 F.3d 510, 513 (2d Cir. 2009). As an initial matter, with respect to her claim of persecution on account of membership in a recognized soc ial group, we decline to consider Lu sh aj’s unexhausted arguments that she is a member of a particular social group composed of: (1) “young women in Albania”; (2) “women who were previo usly targeted for sex-trafficking by members of the Haklaj gang andBef or e th e BI A, L us ha j ar gu edt ha t sh e be lo ng edt o a gr ou p 1 com pri sedof “t een age o r y oun g a dul t d esi rab le fem ale s f romfa mil ies wel l-k now n i n t he tow n o f T rop oje to ha ve bee n p ro- Dem ocr ati c P art y sym pat hiz ers an d t o h ave been a nti -co mmu nis t a nd ant i-S oci ali st Par ty opp one nts .” Lus haj co nce des that th e B IA pro per ly fou nd the te rm “de sir abl e” is not su ffi cie ntl y p art icu lar o r w ell -de fin ed. SeeUc elo

Gom ez v. Gon zal es , 5 09 F.3 d 7 0, 73 (2dCi r. 200 7). -3- who managed to escape and avoid capture”; and (3) “teenage or young adult females from fa mi li es well-known in the town of Tropoje to have been pro-Democratic Party sympathizers and to have been anti-communist and anti-Socialist Party opponents.” See Lin Zhong v. U.S. Dep’t of Justice , 480 F. 3d1 04, 119-20 (2d Cir. 2 00 7). Rather, we confine our review to the legal 1 theory Lus haj advanced before the BIA; namely, that: (1) the IJ did not err in finding that she was a member of the particular social group of women w hom “members of the Haklaj gang wished to kidnap . . . and force . . . into prostitution, at leas t i n p ar t t o p un is h [ th ei r] fa mi lyme mb er s f or th eir political activities i n Al bania”; and (2) she had a wellfounded fear of future p er secution based on an imputed political opinion. The BIA concluded that the IJ erred when she found Lushaj to be a me mb er o f a pa rt ic ul ar s oc ia l gr ou p. In t he BIA’s view, the IJ’s definition of Lushaj’s purported social group was “circu la r” because it was based exclusively on the persecution that its members suffere d or feared. See Ucelo--4-

Gomez , 509 F.3d at 73 ( citing Matter of A-M-E- & J-G-U- , 24 I. & N. Dec. 69, 74 (B.I.A. 2007) (h ol ding that a social group cannot be defined excl usively by the fact that its members have been subjected to h arm.)). This view may well be reasonable, and appears to be acknowledged by the petitioner, at le as t w it h r es pe ct to he r c la imof pa st pe rs ec ution. See Brief for Petitioner at 18, 34. But it is also reasonable to think that the BIA was somewhat misinterpreting the IJ’s point, which may have been that Lushaj was a member of a group of women identified by the political views of their families, and that , as a m embe r of t hi s “g ro up ,” s he h adb ec ome a potential targ et o f the Haklaj gang. Even on this interpretation, however, the “group” would no t qualify as a social group within the meaning of 8 U.S.C. § 1101(a)(42(A) in the absence of any evidence that such a “group” was perceived

as a discrete group by Albanian society. See Matter of S-E-G- , 24 I. & N. Dec. 579, 586-87 (B.I.A. 2008). The BIA also properly found that Lushaj failed to demonstrate th at any harm she suffered or feared was on account of an imputed political opinion. Indeed, Lu shaj failed to support her claim with evidence indicating that the Haklaj gang targeted her for any reason other th an pecuniary gain. See Melgar de Torres v. Reno , 191 F.3d 307, 314 n.3 (2d-5-

Cir. 1999) (“[g]eneral violence in El Salvad or does not constitute persecution, nor c an it form a basis for petitioner’s well-founded fear of persecution”); see also Jian Xing H ua ngv . INS, 421 F.3d 125, 129 (2d Cir. 2005) (holding that, absent solid support in the record, his fear was “speculative at best ”) . Accordingly, substantial evidence supports the agency’s conclusion that Lushaj failed to de mo ns trate the requisite nexus to a protected ground. 8 U.S.C. § 1252(b)(4)(B). Because the BIA reasonably found that Lushaj f ai led to establish that any harm she suffered or feared bore a nexus to a protected ground, it reasonably denied her application for asylum and withholding of removal. See Paul v. Gonzales , 444 F.3d 148, 156 (2d Cir. 2006). Thus, we need not definitively adjudicate Lushaj’s argument that she otherwise established past persecution or a well-founded fear of future persecution, although the BIA appears to have reasonably concluded that her fears re la te to a p ri va te ga ng mo ti va te d b y p ec un ia rygain, rather than to apprehended action by the Albanian government. Furthermore, the BIA reasonably denied Lushaj’s claim for relief under the Convention Against Torture because she failed to provide any particularized evidence indicating th at she-6-

more like ly than not would be tortured if she returned to Albania. See Wang v. Ashcroft , 320 F.3d 130, 143-44 (2d Cir. 2003) . For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Proc edure 34(a)(2), and Second Circuit Local Rule 34.1(b). FOR THE COURT: Catherine O’Hagan Wolfe, Clerk