Lelcaj v. Garland ( 2022 )

19-1883
Lelcaj v. Garland
BIA
Christensen, IJ
A206 252 593
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 TO 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 Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 8th day of March, two thousand twenty-two.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 RAYMOND J. LOHIER, JR.,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 LINE LELCAJ,
14 Petitioner,
15
16 v. 19-1883
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Michael P. DiRaimondo, DiRaimondo
24 & Masi, PC, Bohemia, NY.
25
26 FOR RESPONDENT: Brian M. Boynton, Acting
27 Assistant Attorney General;
28 Stephen J. Flynn, Assistant
29 Director; Evan P. Schultz,
30 Attorney, Office of Immigration
31 Litigation, United States
32
1 Department of Justice, Washington,
2 DC.
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 Petitioner Line Lelcaj, a native and citizen of Albania,
9 seeks review of a June 7, 2019 decision of the BIA affirming
10 a January 31, 2018 decision of an Immigration Judge (“IJ”)
11 denying Lelcaj’s application for asylum, withholding of
12 removal, and relief under the Convention Against Torture
13 (“CAT”). In re Lelcaj, No. A206 252 593 (B.I.A. June 7,
14 2019), aff’g No. A206 252 593 (Immig. Ct. N.Y. City Jan. 31,
15 2018). We assume the parties’ familiarity with the
16 underlying facts and procedural history.
17 We have reviewed the decision of the IJ as supplemented
18 by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
19 Cir. 2005). The standards of review are well established.
20 See 8 U.S.C. § 1252(b)(4)(B); Lecaj v. Holder, 616 F.3d 111,
21 114 (2d Cir. 2010).
22 The agency did not err in concluding that Lelcaj failed
23 to satisfy her burden of proof for asylum, withholding of
2
1 removal, and CAT relief based on her claim that members of
2 the Socialist Party had threatened to kidnap and kill her on
3 account of her membership in the Democratic Party in Albania.
4 To establish eligibility for asylum, Lelcaj was required to
5 show that she suffered past persecution, or that she has a
6 well-founded fear of future persecution, on account of her
7 race, religion, nationality, membership in a particular
8 social group, or political opinion. 8 U.S.C. §§ 1101(a)(42),
9 1158(b)(1)(A), (B)(i).
10 The agency reasonably concluded that Lelcaj’s
11 experiences did not rise to the level of persecution because
12 she was not harmed and any threats went unfulfilled. See Gui
13 Ci Pan v. U.S. Att’y Gen., 449 F.3d 408, 412–13 (2d Cir.
14 2006)(providing that unfulfilled threats do not constitute
15 persecution); Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d
16 Cir. 2011) (“[P]ersecution is an extreme concept that does
17 not include every sort of treatment our society regards as
18 offensive.” (internal quotation marks omitted)).
19 Absent past persecution, an alien may establish
20 eligibility for asylum by demonstrating a well-founded fear
21 of future persecution, “which requires that the alien present
3
1 credible testimony that [s]he subjectively fears persecution
2 and establish that h[er] fear is objectively reasonable.”
3 Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004);
4 see also 8 C.F.R. § 1208.13(b)(2). The agency did not err
5 in concluding that Lelcaj failed to establish a well-founded
6 fear of persecution in Albania because her brothers, who are
7 active members of the Democratic Party and at least one of
8 whom was also personally threatened, have remained in Albania
9 for years since her departure and have never been harmed.
10 See Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999)
11 (finding a fear of future persecution weakened when similarly
12 situated family members remain unharmed in petitioner’s
13 native country); see also Ramsameachire, 357 F.3d at 178.
14 The IJ reasonably rejected Lelcaj’s contention that she was
15 not similarly situated to her brothers given her gender
16 because her evidence did not show that women are more often
17 the target of political violence in Albania, and evidence of
18 gangs trafficking women for criminal purposes was not
19 material to her claimed fear of political persecution.
20 Contrary to Lelcaj’s contention, the agency did not afford
21 her expert’s affidavit insufficient weight. The affidavit
4
1 discusses general crime and political conditions in Albania,
2 is not based on any personal knowledge of Lelcaj’s particular
3 circumstances, and does not counter the agency’s dispositive
4 finding that Lelcaj’s fear is not well founded because her
5 similarly situated brothers have remained unharmed for years.
6 The agency also reasonably found in the alternative that
7 Lelcaj failed to adequately corroborate her claim because,
8 other than a copy of a Democratic Party card, she did not
9 submit evidence of her political activities or of the threats
10 against her or her family members, even though such evidence
11 was reasonably available from her brothers. See 8 U.S.C.
12 § 1158(b)(1)(B)(ii) (“Where the trier of fact determines that
13 the applicant should provide evidence that corroborates
14 otherwise credible testimony, such evidence must be provided
15 unless the applicant does not have the evidence and cannot
16 reasonably obtain the evidence.”); see also Wei Sun v.
17 Sessions, 883 F.3d 23, 28 (2d Cir. 2018) (“[A]n applicant may
18 be generally credible but h[er] testimony may not be
19 sufficient to carry the burden of persuading the fact finder
20 of the accuracy of h[er] claim of crucial facts if [s]he fails
21 to put forth corroboration that should be readily
5
1 available.”).
2 Because Lelcaj does not have a well-founded fear of
3 persecution, the agency did not err in denying asylum,
4 withholding of removal, and CAT relief, as all three claims
5 were based on the same factual predicate. See Lecaj, 616
6 F.3d at 119–20.
7 We are also not persuaded by Lelcaj’s argument that the
8 agency lacked jurisdiction to commence removal proceedings.
9 Although her Notice to Appear did not contain a hearing date
10 or time, she later received notice of her hearing. See
11 Banegas Gomez v. Barr, 922 F.3d 101, 110, 112 (2d Cir. 2019).
12 For the foregoing reasons, the petition for review is
13 DENIED. All pending motions and applications are DENIED and
14 stays VACATED.
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe,
17 Clerk of Court
6