Peraj v. Holder , 407 F. App'x 540 ( 2011 )

10-275-ag
Peraj v. Holder
BIA
Straus, IJ
A098 880 544
A098 880 543
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 25 th day of January, two thousand eleven.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 ROBERT D. SACK,
10 DENNY CHIN,
11 Circuit Judges.
12 _______________________________________
13
14 YLBER PERAJ, SUADA PERAJ,
15
16 Petitioners,
17
18 v. 10-275-ag
19 NAC
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL
22 Respondent.
23 ______________________________________
24
25 FOR PETITIONERS: Charles Christophe, Christophe &
26 Associates, P.C., New York, New
27 York.
28
29 FOR RESPONDENT: Tony West, Assistant Attorney
30 General; Douglas E. Ginsburg,
31 Assistant Director; Franklin M.
32 Johnson, Jr., Trial Attorney, Office
33 of Immigration Litigation, Civil
1 Division, United States Department
2 of Justice, Washington, D.C.
3
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Petitioners Ylber Peraj and Suada Peraj, natives and
9 citizens of Albania, seek review of a January 7, 2010, order
10 of the BIA affirming the April 24, 2008, decision of
11 Immigration Judge (“IJ”) Michael W. Straus denying their
12 application for asylum, withholding of removal, and relief
13 under the Convention Against Torture (“CAT”). In re Ylber
14 Peraj, Suada Peraj, Nos. A098 880 544/43 (B.I.A. Jan. 7,
15 2010), aff’g No. A098 880 544/43 (Immig. Ct. Hartford,
16 Conn. Apr. 24, 2008). We assume the parties’ familiarity
17 with the underlying facts and procedural history in this
18 case.
19 Under the circumstances of this case, we review the
20 IJ’s decision as modified by the BIA decision, i.e., minus
21 the arguments for denying relief that were not considered by
22 the BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426
23 F.3d 520, 522 (2d Cir. 2005). The applicable standards of
24 review are well-established. See 8 U.S.C. § 1252(b)(4)(B);
2
1 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
2 The IJ found that the petitioners did not meet their
3 burden of proof because, inter alia, they provided no
4 documentation corroborating Ylber Peraj’s involvement with
5 the Legality Party and no medical evidence corroborating his
6 testimony that he was beaten by the police. In cases
7 applying the REAL ID Act, “an IJ, weighing the evidence to
8 determine if the alien has met his burden, may rely on the
9 absence of corroborating evidence adduced by an otherwise
10 credible applicant unless such evidence cannot be reasonably
11 obtained.” Chuilu Liu v. Holder, 575 F.3d 193, 197 (2d Cir.
12 2009) (dicta; concluding that pre-REAL ID Act standards
13 applied to Chuilu Liu’s proceedings). The petitioners argue
14 that the agency did not establish that such corroborating
15 evidence was reasonably available. However, the agency
16 found that corroboration was available because Ylber Peraj
17 testified that his family was involved with the Legality
18 Party in Albania and that his family doctor had treated him.
19 Petitioners have offered no evidence to show that
20 corroboration was unavailable. Accordingly, the agency
21 reasonably found that petitioners did not meet their burden
22 of proving their eligibility for asylum. See 8 U.S.C.
3
1 § 1158(b)(1)(B)(ii); Chuilu Liu, 575 F.3d at 197-98.
2 Because petitioners were unable to show the objective
3 likelihood of persecution needed to make out an asylum
4 claim, and because their claims for withholding of removal
5 and CAT relief were based on the same factual predicate as
6 their asylum claim, they were necessarily unable to meet the
7 higher standard required to succeed on a claim for
8 withholding of removal or CAT relief. See Paul v. Gonzales,
9 444 F.3d 148, 156 (2d Cir. 2006); Gomez v. INS, 947 F.2d
10 660, 665 (2d Cir. 1991); Xue Hong, 426 F.3d at 523 (2d Cir.
11 2005); see also 8 U.S.C. §§ 1231(b)(3)(C), 1229a(c)(4)(B).
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, any stay of
14 removal that the Court previously granted in this petition
15 is VACATED, and any pending motion for a stay of removal in
16 this petition is DISMISSED as moot. Any pending request for
17 oral argument in this petition is DENIED in accordance with
18 Federal Rule of Appellate Procedure 34(a)(2), and Second
19 Circuit Local Rule 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
22
4