Vaid Hyzoti v. Eric Holder, Jr. , 517 F. App'x 354 ( 2013 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0242n.06
No. 12-3771 FILED
Mar 08, 2013
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
VAID HYZOTI; LULJETA HYZOTI; FJONA )
HYZOTI; and FJODI HYZOTI, )
) ON PETITION FOR REVIEW
Petitioners, ) OF A FINAL ORDER OF THE
) BOARD OF IMMIGRATION
v. ) APPEALS
)
ERIC H. HOLDER, JR., Attorney General, )
)
Respondent. )
)
BEFORE: MERRITT, CLAY, and GRIFFIN, Circuit Judges.
GRIFFIN, Circuit Judge.
Vaid Hyzoti and his wife and two children petition for review of the decision of the Board
of Immigration Appeals (“Board”) denying their motion to reopen removal proceedings. Because
the Board’s decision was not an abuse of discretion, we deny the petition.
I.
Petitioners are natives and citizens of Albania. They entered the United States in November
2000. A month later, Vaid filed a petition for asylum that included derivative petitions for his wife
and children. Vaid claimed past persecution and a well-founded fear of future persecution on
account of: (1) his political opinion, including his political party affiliation, and support of the
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Albanian monarchy; and (2) his work as a journalist. He also sought withholding of removal under
the Immigration and Nationality Act and protection under the Convention Against Torture.
The Hyzoti family appeared before an immigration judge (“IJ”) in connection with their
asylum petitions. The IJ later denied all relief, concluding that Vaid was not credible and had not
adequately corroborated his claims. The IJ further found that Vaid’s testimony, even if credible, did
not establish past persecution, and, alternatively, that a fundamental change in circumstances had
since occurred in Albania such that the family no longer had a well-founded fear of future
persecution even had they established one initially.
Upon review, the Board agreed that fundamental changes in Albania precluded relief. (It did
not address the IJ’s findings on credibility and past persecution.) The Board pointed specifically to
a U.S. Department of State Country Report for 2004, which indicated that, although “serious
political repression existed in the past, there are no indications of systemic political persecution in
Albania at the present time.” It further noted that “there are no indications that the Socialist Party,
either through its own organization or through authorities, is engaged in a pattern of repression or
violent behavior against its opponents,” of which Vaid, as a former member of the Legality and
Democratic parties, was one. The family petitioned for review, but we upheld the agency’s ruling
as supported by substantial evidence.
The Hyzotis declined to leave the country. Three and a half years later, they asked the Board
to reopen their case based upon changed circumstances in Albania. In support of that request, Vaid
submitted a personal statement and expert reports from university professors Dr. Bernd Fischer and
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Dr. Brian Williams detailing the current political culture and “pervasive problem of sex trafficking”
in Albania. (Vaid claimed his daughter faces an increased risk of being kidnaped into prostitution
because of her father’s political views.) Various news articles and reports also were submitted. The
Board denied their motion. This timely petition followed.
II.
The decision whether to reopen removal proceedings is a matter of broad Board discretion.
See 8 C.F.R. § 1003.2(a). We review a decision to deny reopening for an abuse of that discretion,
which occurs if the decision lacks “a rational explanation, inexplicably departs from established
policies, or rests on an impermissible basis such as invidious discrimination.” Yu Yun Zhang v.
Holder, 702 F.3d 878, 879 (6th Cir. 2012) (brackets and internal quotation marks omitted). We will
not reverse the Board simply because we would have decided the matter differently in the first
instance. See Alizoti v. Gonzales, 477 F.3d 448, 453 (6th Cir. 2007).
III.
An alien subject to a final order of removal is limited to one motion to reopen and must file
within ninety days of being ordered removed. 8 U.S.C. § 1229a(c)(7)(A), (C)(i). These limits do
not apply, however, if the alien seeks asylum and can show “changed country conditions” arising in
the country of removal using evidence that is “material and was not available and would not have
been discovered or presented at the previous proceeding.” Id. § 1229a(c)(7)(C)(ii).
Petitioners’ motion to reopen was based upon their claim that country conditions in Albania
had changed for the worse since they were ordered removed (in 2005). The Board gave two reasons
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for denying the motion, reasons we consider separately.1 First, it concluded that petitioners failed
to show that much of the evidence submitted was unavailable and could not have been discovered
or presented at the hearings in 2005. That conclusion was rational. Extensive portions of Dr. Bernd
Fischer’s report concern Albania’s political and social climate generally—including the prevalence
of police corruption, crime, and the lack of an independent judiciary—and could have been presented
in 2005. And his critique of the accuracy of the U.S. Department of State’s Country Conditions
Reports as “often paint[ing] too positive of a picture of domestic conditions in Albania and
overlook[ing] serious problems” was an argument petitioners could have made previously.
Large portions of Dr. Brian Williams’s report suffer from the same flaw. The report mostly
summarizes news articles that recount stories told by young Albanian women abducted by sex
traffickers and sold into prostitution slave trades in other countries. But many of the articles either
bear no date or predate 2005.
Much of Vaid’s personal statement is similarly irrelevant for reopening purposes. He restates
his fear of returning to Albania, but adds little that is new. He notes that his political opponents
previously threatened to kidnap his daughter and fears they will follow through if she returns to
Albania. The basis for this fear stems in part from his niece’s abduction in 1996. He declined to
mention the kidnaping at his merits hearing apparently because the immigration judge refused to
1
The Board also noted in passing petitioners’ failure to file with their motion an application
for asylum, but it is unclear whether the Board relied on the failure in denying the motion. See Bi
Feng Liu v. Holder, 560 F.3d 485, 491 (6th Cir. 2009) (upholding Board’s denial of a motion to
reopen in part because the motion did not include an asylum application). We assume it did not.
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excuse Vaid’s daughter from the courtroom and he did not wish to frighten her. But Vaid’s quarrel
with the judge’s courtroom procedure could have been raised during circuit court review of that
decision. It is too late to raise it now, in a motion to reopen. See Yu Yun Zhang, 702 F.3d at 882
(declining to take up, on review of a reopening denial, a challenge to an adverse credibility finding
that could have been raised in an earlier petition for review). The Board was within its discretion
not to reopen proceedings on the basis of information that was available and could have been
discovered and produced at the evidentiary hearings in 2005.
Second, the Board recognized that not all of petitioners’ submission relied upon evidence that
could have been discovered and presented earlier; some of it is indeed new. Nevertheless, the Board
found any new evidence insufficient to warrant reopening. It addressed sex trafficking and Albania’s
political climate separately. Regarding sex trafficking, it noted that the evidence did not show
trafficking to be of recent onset in Albania. That conclusion is reasonable. The submitted articles
that post-date 2005 (and are therefore “new”) demonstrate merely that sex trafficking in Albania is
a large problem and has received more media attention recently, not that it has significantly
increased since 2005. Dr. Williams states the following: “As stated previously there has been a
marked upsurge of kidnaping for forced prostitution in Albania in recent years, especially since 2008,
and the risk of this to someone who has been targeted by opponents previously are even higher.” But
no cross-reference is supplied, and we cannot find where the first proposition is “stated previously”
in the report. Nor is there any evidence in the report, apart from conclusory statements by Dr.
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Williams, showing that political operatives are increasingly—since 2005—using the prostitution
slave trade to persecute opponents.
Regarding Albania’s political climate, the Board did acknowledge that new evidence
demonstrated an increase in “political unrest and instability, corruption, and criminal violence,” but
found it similarly inadequate to warrant reopening. This conclusion is also reasonable.
The fact that conditions in a movant’s home country have changed is insufficient, by itself,
to warrant reopening; the changes must be “material” to his situation. 8 U.S.C. § 1229a(c)(7)(C)(ii).
He must show how the changes affect in some way his eligibility for asylum. See Moosa v. Holder,
644 F.3d 380, 385 (7th Cir. 2011) (“The Board is required to evaluate whether the alleged changed
circumstances are ‘material’ to the applicant’s request for asylum,” which “in turn invites the Board
to determine whether these changes provide the applicant with a well-founded fear of persecution.”).
Yet a movant need not conclusively establish eligibility for asylum to secure reopening; he need only
set out a prima facie case of his eligibility, by submitting objective evidence that shows a “reasonable
likelihood” or “realistic chance” that he can later establish eligibility. Yu Yun Zhang, 702 F.3d at
880; Smith v. Holder, 627 F.3d 427, 437 (1st Cir. 2010); accord In re S-V-, 22 I. & N. Dec. 1306,
1308 (BIA 2000); see also INS v. Doherty, 502 U.S. 314, 323 (1992) (a movant’s failure to establish
a prima facie case for relief is reason enough not to reopen).
Along these lines, we have said that a “motion to reopen based on changed country
conditions ‘cannot rely on speculative conclusions or mere assertions of fear of possible persecution,
but instead must offer reasonably specific information showing a real threat of individual
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persecution.’” Harchenko v. INS, 379 F.3d 405, 410 (6th Cir. 2004) (emphasis added) (quoting
Dokic v. INS, No. 92-3592, 1993 WL 265166, at *5 (6th Cir. July 15, 1993) (per curiam)). “The
feared persecution must relate to the alien individually, not to the population generally.” Id. (internal
quotation marks omitted). (Asylum requires a well-founded fear of individualized persecution. See
In re Sanchez & Escobar, 19 I. & N. Dec. 276, 284 (BIA 1985).) So in Harchenko, for example, we
upheld the Board’s denial of the petitioner’s motion to reopen because, despite changed human rights
conditions in Ukraine, the petitioner “fail[ed] to explain how [the changes] would affect him if” he
were returned there, and thus “failed to demonstrate the ‘individualized’ fear or persecution required
for asylum.” 379 F.3d at 410. And in Kiota v. Holder, 389 F. App’x 491 (6th Cir. 2010) (per
curiam), we similarly declined to disturb the Board’s decision where the petitioner failed to show
how a post-removal military coup in Mauritania “presented a threat of future harm to petitioner
individually.” Id. at 493. Because the new evidence Harchenko and Kiota submitted failed to
materially alter their eligibility for asylum, reopening was unwarranted.
Here, the Board acknowledged an increase in “political unrest and instability, corruption, and
criminal violence” in Albania. But it concluded that the changes in conditions did not alter in any
meaningful way the family’s eligibility for asylum, for they failed to show “how their fears differ
from those of the populace as a whole.” It cited Matter of Sanchez & Escobar, 19 I. & N. Dec. 276(BIA 1985), where the Board reiterated its long held view that “generally harsh conditions shared
by many others in a country and the harm arising out of civil strife [does] not amount to
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‘persecution’” for purposes of establishing asylum eligibility. Id. at 284. The Board acted within
its discretion.
Petitioners point to passages in Dr. Fischer’s report that they believe show they will face
more danger than other Albanians if returned. But the Board could reasonably find these passages
either insufficiently specific or inapposite. For example, Dr. Fischer references “a long history of
strained relations” between the Movement for National Development and Albania’s two major
political parties, and notes that “several prominent [Movement] leaders were arrested during the
elections of February 2007.” But no details of the arrests are provided, so it is unclear why the
leaders were arrested, and, more importantly, whether it was because of their political opinions. See
8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A). Nor is there an indication that Vaid is similarly situated
to “prominent [Movement] leaders.” (Vaid was apparently “a member and activist” of the Legality
Party, which is “associated” with the larger Movement. And he admittedly retired from party politics
in 1997.)
Dr. Fischer also references Albania’s “flawed elections of 2009,” which apparently sparked
a political crisis that has had a “profoundly negative” effect on “almost all aspects of Albanian life.”
But he does not explain how petitioners would be more negatively affected than the general Albanian
populace. He also mentions that “[i]ncreased tension has led to increased political violence with
political activists being threatened, injured and killed.” But again, we are left in the dark regarding
specifics of these incidents, including why the activists were harmed and whether Vaid is similarly
situated. We are further told that the 2011 resignation of the Deputy Prime Minister under a cloud
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of scandal precipitated “a massive anti-government demonstration—involving as many as 200,000
demonstrators—which quickly degenerated into violence leaving four dead, over 150 injured and
scores arrested.” How Vaid is more likely than the average Albanian to be affected by this because
of his past membership in the Legality party is left unsaid. And the same goes for the fact that “local
elections” in May 2011 were “accompanied by an increased level of political violence with incidents
occurring nearly every day in the weeks running up to the actual vote”—how are petitioners likely
to be specifically affected by events like this? Dr. Fischer does not say.
Conspicuously absent from Dr. Fischer’s report is the only sort of evidence that would
support the Hyzotis’ request for reopening—specific evidence showing that former members of the
Legality or Movement for National Development parties, or those who otherwise hold such views,
are subject to a heightened risk of persecution on account of their beliefs or former membership in
the parties. Absent evidence demonstrating that the family has a “realistic chance” of later
establishing a well-founded fear of persecution, the Board was within its discretion not to reopen
their removal proceedings.
IV.
Petitioners separately contend that they were denied due process because the Board failed to
fully consider the two expert reports and the news articles attached to their motion. But as we have
explained before, an alien’s right to a “full and fair hearing” before an immigration judge does not
extend to purely discretionary relief such as reopening. Gasca-Rodriguez v. Holder, 322 F. App’x
447, 449 (6th Cir. 2009); accord Moosa, 644 F.3d at 385. Moreover, petitioners are simply
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mistaken. Although the Board’s decision was brief, it did mention both reports, and it provided
enough reasoning to permit meaningful review. That is all we require. See Bi Feng Liu, 560 F.3d
at 491 n.5.
V.
For these reasons, we deny the petition for review.
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