09-2914-ag

Lushaj v. Holder

BIA

Sichel, IJ

A097 966 139

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.

At a stated term of the United States Court of Appeals

for the Second Circuit, 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,

 Circuit 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 RESPONDENT: Tony West, Asst. Atty. General, 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 review of a

decision of the Board of Immigration 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, order of the BIA,

reversing the April 25, 2007, decision of Immigration Judge

(“IJ”) Helen 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 applicable standards of review are

well-established. See 8 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 social

group, we decline to consider Lushaj’s unexhausted arguments

that she is a member of a particular social group composed of:

(1) “young women in Albania”; (2) “women who were previously

targeted for sex-trafficking by members of the Haklaj gang and
Before the BIA, Lushaj argued that she belonged to a group

1

comprised of “teenage or young adult desirable females from families

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.” Lushaj concedes that the BIA properly found the term

“desirable” is not sufficiently particular or well-defined. See UceloGomez v. Gonzales, 509 F.3d 70, 73 (2d Cir. 2007).

-3-

who managed to escape and avoid capture”; and (3) “teenage or

young adult females from families 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.3d 104, 119-20

(2d Cir. 2007). Rather, we confine our review to the legal 1

theory Lushaj 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 whom “members of the Haklaj

gang wished to kidnap . . . and force . . . into prostitution,

at least in part to punish [their] family members for their

political activities in Albania”; and (2) she had a wellfounded fear of future persecution based on an imputed

political opinion.

The BIA concluded that the IJ erred when she found Lushaj

to be a member of a particular social group. In the BIA’s

view, the IJ’s definition of Lushaj’s purported social group

was “circular” because it was based exclusively on the

persecution that its members suffered 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) (holding that a social group

cannot be defined exclusively by the fact that its members

have been subjected to harm.)). This view may well be

reasonable, and appears to be acknowledged by the petitioner,

at least with respect to her claim of past persecution. 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 member of this “group,” she had become a

potential target of the Haklaj gang. Even on this

interpretation, however, the “group” would not 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 that any harm she suffered or feared was on

account of an imputed political opinion. Indeed, Lushaj

failed to support her claim with evidence indicating that the

Haklaj gang targeted her for any reason other than pecuniary

gain. See Melgar de Torres v. Reno, 191 F.3d 307, 314 n.3 (2d
-5-

Cir. 1999) (“[g]eneral violence in El Salvador does not

constitute persecution, nor can it form a basis for

petitioner’s well-founded fear of persecution”); see also Jian

Xing Huang v. 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

demonstrate the requisite nexus to a protected ground. 8

U.S.C. § 1252(b)(4)(B).

Because the BIA reasonably found that Lushaj failed 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 relate to a private gang motivated by pecuniary gain,

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 that she
-6-

more likely 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 Procedure 34(a)(2), and Second Circuit Local Rule

34.1(b).

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk