09-5079-ag 

Gjoni v. Holder 

BIA

 Nelson, IJ

A099 592 066

A099 592 067

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

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 NAC

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.

10 Franc Gjoni and Alme Gjoni, natives and citizens of 1

11 Albania, seek review of a November 12, 2009 order of the BIA

12 affirming the February 1, 2008 decision of Immigration Judge

13 (“IJ”) Barbara A. Nelson, which denied their applications

14 for asylum, withholding of removal, and relief under the

15 Convention Against Torture (“CAT”). In re Gjoni, Nos. A099

16 592 066/067 (B.I.A. Nov. 12, 2009), aff’g Nos. A099 592

17 066/067 (Immig. Ct. N.Y. City Feb. 1, 2008). We assume the

18 parties’ familiarity with the underlying facts and

19 procedural history in this case.

20 Under the circumstances of this case, we review the

21 decision of the IJ as supplemented by the BIA. See Yan Chen

22 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The

23 applicable standards of review are well-established. See
3

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

10 changed country conditions rebut the presumption of a well11 founded fear of persecution where the petitioner suffered

12 past persecution. Niang v. Mukasey, 511 F.3d 138, 148-49

13 (2d Cir. 2007). In other words, “[a] showing of past

14 persecution sets up a rebuttable presumption of a well15 founded fear of future persecution, which is overcome only

16 if a preponderance of the evidence establishes that a change

17 in circumstances in the applicant’s country of nationality

18 has occurred such that the applicant’s fear is no longer

19 well-founded.” Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 148

20 (2d Cir. 2003).

21 In this case, there has been an “indisputable

22 historical event” in Albania, Gjoni’s country of 
4

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

10 still wish to harm him. See Ivanishvili v. U.S. Dep’t of

11 Justice, 433 F.3d 332, 342 (2d Cir. 2006). 

12 Additionally, it is not improper for the agency to

13 consider an applicant’s claim of a well-founded fear of

14 persecution diminished where, as here, similarly-situated

15 family members remain in his or her native country unharmed. 

16 See Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir.

17 1999). Accordingly, substantial evidence supports the

18 agency’s finding that there has been a fundamental change in

19 circumstances in Albania, rebutting the presumption of a

20 well-founded fear of future persecution, and, moreover, that

21 Gjoni does not have an objectively reasonable fear of future

22 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

10 C.F.R. § 1208.17. 

11 Although in certain circumstances, an IJ may grant

12 asylum to an applicant who has established past persecution,

13 but not a well-founded fear of future persecution, see 8

14 C.F.R. § 1208.13(b)(1)(iii); Wu Zheng Huang v. INS, 436 F.3d

15 89, 96 (2d Cir. 2006), this so-called “humanitarian asylum”

16 has been reserved for applicants who have suffered

17 “atrocious forms of persecution” or who may suffer “other

18 serious harm upon their return.” See 8 C.F.R.

19 § 1208.13(b)(1)(iii); Matter of Chen, 20 I. & N. Dec. 16, 19

20 (B.I.A. 1989). We have found that to merit a grant of

21 humanitarian asylum on the basis of severe past persecution,

22 an applicant must demonstrate “long-lasting physical or

23 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

10 stress disorder; however, the IJ and the BIA did not err

11 when finding that these conditions alone were not enough to

12 merit the grant of humanitarian asylum. Moreover, there was

13 no medical evidence to demonstrate a causal connection

14 between Gjoni’s past persecution and seizure disorder. See

15 Matter of Chen, 20 I. & N. Dec. 16, 19 (B.I.A. 1989). The

16 IJ did not abuse her discretion in denying humanitarian

17 asylum. See 8 U.S.C. § 1252(b)(4)(D); Hoxhallari, 468 F.3d

18 at 184; Wu Zheng Huang, 436 F.3d at 96.

19 For the foregoing reasons, the petition for review is

20 DENIED. As we have completed our review, any stay of

21 removal that the Court previously granted in this petition

22 is VACATED, and any pending motion for a stay of removal in

23 this petition is DISMISSED as moot. Any pending request for
7

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