Veliu v. Holder , 541 F. App'x 138 ( 2013 )

12-778
Veliu v. Holder
BIA
Straus, IJ
A088 653 909
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 Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 15th day of November, two thousand thirteen.
PRESENT:
RALPH K. WINTER,
GUIDO CALABRESI,
PETER W. HALL,
Circuit Judges.
_____________________________________
ISMAIL VELIU,
Petitioner,
v. 12-778
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Andrew P. Johnson, New York, NY.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; Ada E. Bosque,
Senior Litigation Counsel; Puneet
Cheema, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Ismail Veliu, a native and citizen of
Macedonia, seeks review of a February 6, 2012, order of the
BIA, affirming the October 29, 2009, decision of Immigration
Judge (“IJ”) Michael W. Straus, which denied Veliu’s
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Ismail
Veliu, No. A088 653 909 (B.I.A. Feb. 6, 2012), aff’g No.
A088 653 909 (Immig. Ct. N.Y. City Oct. 29, 2009). We
assume the parties’ familiarity with the underlying facts
and procedural history in this case.
Under the circumstances of this case, we have reviewed
both the IJ’s and BIA’s opinions “for the sake of
completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
2008) (per curiam) (internal quotations marks omitted). 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).
Initially, we decline to consider Veliu’s challenge to
the agency’s finding that he failed to submit sufficient
corroborating evidence demonstrating that his November 2007
beating was on account of a protected ground, because the
agency’s alternative determination—that, assuming Veliu had
suffered past persecution, circumstances had fundamentally
changed such that he no longer had a well-founded fear of
persecution based on his Albanian ethnicity or his imputed
political opinion—is supported by substantial evidence. See
INS v. Bagamasbad, 429 U.S. 24, 25 (1976).
An alien who demonstrates past persecution benefits
from the presumption of a well-founded fear of future
persecution. See 8 C.F.R. §§ 1208.13(b)(1) (asylum),
1208.16(b)(1)(i) (withholding of removal); see also Baba v.
Holder, 569 F.3d 79, 86 (2d Cir. 2009); Li Hua Lin v. U.S.
Dep’t of Justice, 453 F.3d 99, 105 (2d Cir. 2006). Once
past persecution is established, the burden rests firmly
with the government to rebut this presumption by showing, by
a preponderance of the evidence, either a “fundamental
change in circumstances such that the applicant’s life or
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freedom would not be threatened on account of any of the
five [protected] grounds . . . upon the applicant’s removal
[to the country] in question or the reasonable possibility
of internal relocation within th[at] country.” Kone v.
Holder, 596 F.3d 141, 147 (2d Cir. 2010) (internal quotation
marks omitted) (citing 8 C.F.R. § 1208.16(b)(1)(i)-(ii); 8
C.F.R. § 1208.13(b)(1)(i)-(ii)).
Contrary to Veliu’s assertions, the agency reasonably
determined that the presumption of a well-founded fear of
future persecution stemming from his assumed past
persecution was rebutted by evidence of changed country
conditions in Macedonia. See Xiao Ji Chen v. U.S. Dep’t of
Justice, 471 F.3d 315, 342 (2d Cir. 2006) (holding that the
weight accorded to the applicant’s evidence in immigration
proceedings lies largely within the discretion of the
agency). First, the agency reasonably determined that
Veliu’s father’s permanent relocation to Italy constituted
fundamentally changed circumstances concerning Veliu’s
claimed fear of persecution due to his imputed political
opinion. See Kone, 596 F.3d at 147. Indeed, as the agency
noted, Veliu had testified that the police had only sought
to harm him as a means of curtailing his father’s political
activities in Macedonia. Second, the agency reasonably
based its fundamental change in circumstances finding on the
evidence in the record concerning conditions for ethnic
Albanians in Macedonia. See Xiao Ji Chen, 471 F.3d at 342.
In doing so, the IJ explicitly considered the evidence in
the record and noted that, unlike the previously year, the
2008 State Department Country Report reflected no incidents
of police violence against ethnic Albanians or
politically-motivated disappearances. Although the IJ
acknowledged that some of the country conditions evidence
reflected tensions between ethnic Albanians and Macedonians,
the agency reasonably concluded that this evidence did not
demonstrate any pattern or practice of persecution and,
instead, reflected a fundamental change in circumstances.
While Veliu takes issue with this determination, the task of
resolving conflicts in the record evidence lies “largely
within the discretion of the agency.” Jian Hui Shao v.
Mukasey, 546 F.3d 138, 171 (2d Cir. 2008). Because the
agency’s conclusion that circumstances have fundamentally
changed “is tethered to the evidentiary record, we will
accord deference to the finding.” See Siewe v. Gonzales,
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480 F.3d 160, 168 (2d Cir. 2007) (“[S]upport for a contrary
inference – even one more plausible or more natural – does
not suggest error.”)
Veliu’s contention, in reliance on Diallo v. INS, that
the agency committed reversible error by failing to make an
explicit credibility determination is misplaced. See 232
F.3d 279, 290 (2d Cir. 2000). Although we have held that
the IJ is required to make an explicit credibility
determination in order to ensure that “an alien receives the
‘potential benefit’ of succeeding on credible testimony
alone” and that appellate review is preserved, see Zaman v.
Mukasey, 514 F.3d 233, 237 (2d Cir. 2008) (quoting Diallo,
232 F.3d at 287), here, the IJ explicitly assumed that Veliu
was credible and the BIA explicitly presumed that Veliu had
testified credibly on appeal. See 8 U.S.C.
§ 1158(b)(1)(B)(iii) (“if no adverse credibility
determination is explicitly made, the applicant or witness
shall have a rebuttable presumption of credibility on
appeal”). As a result, the IJ’s failure to make an explicit
credibly determination did not deny Veliu the “potential
benefit of succeeding on credible testimony alone” or
frustrate our appellate review. See Zaman, 514 F.3d at 237
(internal quotation marks omitted).
Because the agency reasonably determined that Veliu was
unable to meet his burden for asylum, he necessarily failed
to meet the higher burden required to succeed on his
withholding of removal claim. See Gomez v. INS, 947 F.2d
660, 665 (2d Cir. 1991). Moreover, because the foregoing
changed circumstances analysis also served as the basis for
the agency’s denial of CAT relief, the agency did not err in
finding that Veliu had failed to establish that he would
likely be tortured if removed to Macedonia. See Mu-Xing
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, the pending
request for a stay of removal in this petition is DENIED as
moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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