0 9 -5 0 7 9 -ag

G joni v . H olde r BI A N el son, IJ A 099 592 066 A 099 592 067 

### UNITE D STA TES C OURT OF AP PEALS FOR T HE SE COND CIRCU IT 

# SUM MAR Y O RDE R

R U L I N G S B Y S U M M A R Y O R D E R D O N O T H A V E P R E C E D E N T I A L E F F E C T . C I T A T I O N T O A S U M M A R Y O RDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RUL E 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 4 New York, on the 17 day of December, two thousand ten. th 5 6 PRESENT: 7 ROGER J. MINER, 8 JOSEPH M. McLAUGHLIN, 9 JOSÉ A. CABRANES, 10 Circuit Judges . 11

_______________________________________ 12 13 FRANC GJONI, ALME GJONI 14 Petitioners , 15 16 v. 09-5079-ag 17 N A C 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent . 21

_______________________________________ 22 23 FOR PETITIONERS: Andrew P. Johnson, New York, New 24 York. 25 26 FOR RESPONDENT: Tony West, Assistant Attorney 27 General; Greg D. Mack, Senior 28 Litigation Counsel; Shahrzad Baghai,This order refers solely to Franc Gjoni, as his 1 wife Alme was listed as a derivative applicant in his application. 2 1 Trial Attorney, Office of 2 Immigration Litigation, United 3 States Department of Justice, 4 Washington, D.C. 5 6 UPON DUE CONSIDERATION of this petition for review of a 7 Board of Immigration Appeals (“BIA”) decision, it is hereby 8 ORDERED, ADJUDGED, AND DECREED that the petition for review 9 is DENIED. 1 0 Franc Gjoni and Alme Gjoni, natives and citizens of 1 Albania, 1 1 seek review of a November 12, 2009 order of the BIA 1 2 affirming the February 1, 2008 decision of Immigration Judge 1 3 (“IJ”) Barbara A. Nelson, which denied their applications 1 4 for asylum, withholding of removal, and relief under the 1 5 Convention Against Torture (“CAT”). In re Gjoni , Nos. A099 1 6 592 066/067 (B.I.A. Nov. 12, 2009), aff’g Nos. A099 592 1 7 066/067 (Immig. Ct. N.Y. City Feb. 1, 2008). We assume the 1 8 parties’ familiarity with the underlying facts and 1 9 procedural history in this case. 2 0 Under the circumstances of this case, we review the 2 1 decision of the IJ as supplemented by the BIA. See Yan Chen 2 2 v. Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). The 2 3 applicable standards of review are well-established. See3 1 Salimatou Bah v. Mukasey , 529 F.3d 99, 110 (2d Cir. 2008); 2 Shu Wen Sun v. BIA , 510 F.3d 377, 379 (2d Cir. 2007). 3 The regulations require IJs to exercise the Attorney 4 General’s discretion to deny asylum to applicants who 5 establish eligibility based solely on past persecution when 6 the government establishes a fundamental change in 7 circumstances sufficient to rebut the presumption of a well8 founded fear of persecution. 8 C.F.R. § 1208.13(b)(1). The 9 agency must provide a reasoned basis for a finding that 1 0 changed country conditions rebut the presumption of a well1 1 founded fear of persecution where the petitioner suffered 1 2 past persecution. Niang v. Mukasey , 511 F.3d 138, 148-49 1 3 (2d Cir. 2007). In other words, “[a] showing of past 1 4 persecution sets up a rebuttable presumption of a well1 5 founded fear of future persecution, which is overcome only 1 6 if a preponderance of the evidence establishes that a change 1 7 in circumstances in the applicant’s country of nationality 1 8 has occurred such that the applicant’s fear is no longer 1 9 well-founded.” Jin Shui Qiu v. Ashcroft , 329 F.3d 140, 148 2 0 (2d Cir. 2003). 2 1 In this case, there has been an “indisputable 2 2 historical event” in Albania, Gjoni’s country of4 1 nationality. Namely, the Socialist Party that persecuted 2 Gjoni is no longer in power and has not been since July 3 2005. See Hoxhallari v. Gonzales , 468 F.3d 179, 187-88 (2d 4 Cir. 2006) (per curiam). Furthermore, the agency relied on 5 both changed country circumstances and specific findings 6 based on record evidence in determining that Gjoni did not 7 have a well-founded fear of persecution. There is no 8 evidence that the new Albanian government is unable or 9 unwilling to protect Gjoni from the individuals who may 1 0 still wish to harm him. See Ivanishvili v. U.S. Dep’t of 1 1 Justice , 433 F.3d 332, 342 (2d Cir. 2006). 1 2 Additionally, it is not improper for the agency to 1 3 consider an applicant’s claim of a well-founded fear of 1 4 persecution diminished where, as here, similarly-situated 1 5 family members remain in his or her native country unharmed. 1 6 See Melgar de Torres v. Reno , 191 F.3d 307, 313 (2d Cir. 1 7 1999). Accordingly, substantial evidence supports the 1 8 agency’s finding that there has been a fundamental change in 1 9 circumstances in Albania, rebutting the presumption of a 2 0 well-founded fear of future persecution, and, moreover, that 2 1 Gjoni does not have an objectively reasonable fear of future 2 2 persecution, distinct from his past persecution.5 1 Because Gjoni was unable to show the objective 2 likelihood of persecution needed to make out an asylum 3 claim, he was necessarily unable to meet the higher standard 4 required to succeed on a claim for withholding of removal. 5 See Paul v. Gonzales , 444 F.3d 148, 156 (2d Cir. 2006); 6 Gomez v. INS , 947 F.2d 660, 665 (2d Cir. 1991). 7 Furthermore, given the change in country conditions, Gjoni 8 has not demonstrated that he would be tortured, with the 9 government’s consent or acquiescence, in Albania. See 8 1 0 C.F.R. § 1208.17. 1 1 Although in certain circumstances, an IJ may grant 1 2 asylum to an applicant who has established past persecution, 1 3 but not a well-founded fear of future persecution, see 8 1 4 C.F.R. § 1208.13(b)(1)(iii); Wu Zheng Huang v. INS , 436 F.3d 89, 96 (2d Cir. 2006), this so-called “humanitarian asylum” 15 1 6 has been reserved for applicants who have suffered

“ atrocious forms of persecution” or who may suffer “other 17 serious harm upon their return.” See 8 C.F.R. 18 1 9 § 1208.13(b)(1)(iii) ; Matter of Chen, 20 I. & N. Dec. 16, 19 2 0 (B.I.A. 1989). We have found that to merit a grant of 2 1 humanitarian asylum on the basis of severe past persecution, 2 2 an applicant must demonstrate “long-lasting physical or 2 3 mental effects of his persecution.” Omaro Jalloh v.6 1 Gonzales, 498 F.3d 148, 152 (2d Cir. 2007). In this case, 2 the IJ reasonably concluded that while Gjoni’s past 3 persecution, including his arrests, detentions, and beatings 4 while detained which led to his hospitalization upon 5 release, was unfortunate, it was not so severe that he 6 merited a discretionary grant of humanitarian asylum, 7 considering the substantial changes in Albania. See 8 Hoxhallari , 468 F.3d at 184–85. 9 Gjoni does suffer from depression and post-traumatic 1 0 stress disorder; however, the IJ and the BIA did not err 1 1 when finding that these conditions alone were not enough to 1 2 merit the grant of humanitarian asylum. Moreover, there was 1 3 no medical evidence to demonstrate a causal connection 1 4 between Gjoni’s past persecution and seizure disorder. See 1 5 Matter of Chen , 20 I. & N. Dec. 16, 19 (B.I.A. 1989). The 1 6 IJ did not abuse her discretion in denying humanitarian 1 7 asylum. See 8 U.S.C. § 1252(b)(4)(D); Hoxhallari, 468 F.3d 1 8 at 184 ; Wu Zheng Huang, 436 F.3d at 96. 1 9 For the foregoing reasons, the petition for review is 2 0 DENIED. As we have completed our review, any stay of 2 1 removal that the Court previously granted in this petition 2 2 is VACATED, and any pending motion for a stay of removal in 2 3 this petition is DISMISSED as moot. Any pending request for7 1 oral argument in this petition is DENIED in accordance with 2 Federal Rule of Appellate Procedure 34(a)(2), and Second 3 Circuit Local Rule 34.1(b). 4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, Clerk 6 7