09-0475-ag

Simoni v. Holder

BIA

Weisel, IJ

 A096 452 879

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

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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 11 day of February, two thousand ten. th

PRESENT:

DENNIS JACOBS,

Chief Judge,

PIERRE N. LEVAL,

PETER W. HALL,

 Circuit Judges. 

_______________________________________

Fred Simoni, a.k.a. Agim Murtez Ani,

Petitioner, 

 v. 09-0475-ag

NAC

Eric H. Holder, Jr., 

United States Attorney General,

Respondent.

_______________________________________

FOR PETITIONER: Parker Waggaman, New York, New York.

FOR RESPONDENT: Tony West, Assistant Attorney

General, Anh-Thu P. Mai-Windle,

Senior Litigation Counsel, Lynda A.

Do, Attorney, United States

Department of Justice, Civil

Division, Office of Immigration

Litigation, 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 Fred Simoni, a native and citizen of

Albania, seeks review of the January 7, 2009 order of the

BIA affirming the December 6, 2006 decision of Immigration

Judge (“IJ”) Robert D. Weisel, denying his application for

asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). In re Fred Simoni, No.

A096 452 879 (B.I.A. Jan. 7, 2009), aff’g No. A096 452 879

(Immig. Ct. N.Y. City Dec. 6, 2006). We assume the parties’

familiarity with the underlying facts and procedural history

of the case.

This Court reviews the agency’s factual findings under

the substantial evidence standard. 8 U.S.C. §

1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland

Sec., 494 F.3d 281, 289 (2d Cir. 2007). We review de novo

questions of law and the application of law to undisputed

fact. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.

2008). As an initial matter, contrary to the government’s

assertion that Simoni’s challenge to the IJ’s changed

country conditions finding was unexhausted before the BIA,

the issue is considered exhausted because the BIA addressed

it. See Xian Tuan Ye v. DHS, 446 F.3d 289, 296-97 (2d Cir.

2006). 

Assuming, as did the BIA, that Simoni established he

suffered past persecution, substantial evidence supports the

agency’s determination that country conditions in Albania

have significantly changed such that Simoni did not

establish a well-founded fear of persecution. See 8 C.F.R.

§ 1208.13(b)(1)(i). Before this Court, Simoni argues,

principally, that the agency erred in relying on Hoxhallari

v. Gonzales, 468 F.3d 179 (2d Cir. 2006), in reaching its

determination because his case is factually distinguishable

from Hoxhallari. To wit, he does not have relatives who

remain in Albania and are politically active. Petitioner,

however, misreads Hoxhallari. The agency relied on the fact

that Hoxhallari’s relatives remained in Albania to support

an adverse credibility finding, not as a basis for its

alternative finding that changed circumstances in Albania
3

rebutted any presumption that Hoxhallari had a well-founded

fear of future persecution. Hoxhallari, 468 F.3d at 182-83. 

Here, the agency properly conducted an individualized

assessment of how the Democratic Party’s victory in the 2005

and 2007 Albanian elections would affect Simoni's claim, and

reasonably concluded that Simoni did not establish a wellfounded fear of future persecution. See Niang v. Mukasey,

511 F.3d 138, 148-49 (2d Cir. 2007); see also Hoxhallari,

468 F.3d at 187 (holding that the agency need not enter

specific findings regarding changed country conditions where

“changed conditions evidently prevail in a country that is

the subject of an appreciable proportion of asylum claims,”

such as Albania). Moreover, Simoni identifies no evidence

compelling the conclusion that changed country conditions in

Albania do not negate his well-founded fear of persecution. 

See Manzur, 494 F.3d at 289.

Because Simoni was unable to show the objective

likelihood of persecution needed to make out an asylum

claim, he was necessarily unable to meet the higher standard

required to succeed on his claims for withholding of removal

and CAT relief where those claims are based on the same

factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156

(2d Cir. 2006); Kyaw Zwar Tun v. INS, 445 F.3d 554, 567 (2d

Cir. 2006). Additionally, because Simoni presented no

evidence of any long-lasting physical or mental effects of

his alleged persecution, the agency did not err in finding

that he failed to demonstrate eligibility for humanitarian

asylum pursuant to 8 C.F.R. § 1208.13(b)(1). See Jalloh v.

Gonzales, 489 F.3d 148, 151 (2d Cir. 2007); Matter of Chen,

20 I. & N. Dec. 16, 20 (B.I.A. 1989). Accordingly, the

agency’s denial of asylum was not improper.

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(b).

FOR THE COURT: 

Catherine O'Hagan Wolfe, Clerk