Kambolli v. Gonzales

• Decision Date: 26 May 2006
• Docket Number: Docket No. 03-40411-AG.
• Citation: 449 F.3d 454
• Parties: Mirdash KAMBOLLI, Petitioner, v. Alberto GONZALES, Attorney General,<SMALL><SUP>*</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Second Circuit

449 F.3d 454

Mirdash KAMBOLLI, Petitioner, v. Alberto GONZALES, Attorney General,^* Respondent.

Docket No. 03-40411-AG.

United States Court of Appeals, Second Circuit.

Argued: January 11, 2006.

Decided: May 26, 2006.

Glenn T. Terk, Wethersfield, CT, for Petitioner.

Charles T. Harden III, Assistant United States Attorney (Paul I. Perez, United States Attorney for the Middle District of Florida, Karin B. Hoppmann, Assistant United States Attorney, on the brief), United States Attorney's Office for the Middle District of Florida, Tampa, FL, for Respondent.

Before: WINTER, CABRANES, and SACK, Circuit Judges.

PER CURIAM.

We consider here whether we have jurisdiction to review a decision by a member of the Board of Immigration Appeals ("BIA" or "Board") unilaterally to affirm without opinion a decision of an immigration judge ("IJ") pursuant to the BIA's "streamlining" procedures codified at 8 C.F.R. § 1003.1(e) rather than to refer the case to a three-member panel of the BIA.

Petitioner Mirdash Kambolli, a native and citizen of Albania, seeks review of a July 29, 2003 decision of the BIA affirming without opinion a November 15, 2001 decision of IJ Michael W. Straus denying Kambolli's request for asylum, as well as for withholding of removal under Section 241(b)(3) of the Immigration and Naturalization Act of 1952 ("INA"), as amended, 8 U.S.C. § 1231(b)(3), and the United Nations Convention Against Torture ("CAT").¹

On appeal, Kambolli argues that (1) the IJ erred in finding that Kambolli neither suffered past persecution nor possessed a well-founded fear of future persecution and therefore was not eligible for asylum or withholding of removal under the INA; (2) the IJ erred in denying Kambolli's CAT claim; and (3) the Board member who reviewed the IJ's decision erred in unilaterally affirming it without opinion, rather than referring it to a three-member panel of the BIA. We first address the merits of Kambolli's asylum, INA withholding, and CAT claims and then examine whether we have jurisdiction to review the Board member's streamlining decision, which is a question of first impression in this Circuit.

I. The IJ's Decision To Deny Asylum and Withholding of Removal Under the INA

When the BIA affirms an IJ's decision without opinion pursuant to the "streamlining" provision codified at 8 C.F.R. § 1003.1(e)(4), we review the IJ's decision as the final agency determination. See, e.g., Yu Sheng Zhang v. DOJ, 362 F.3d 155, 158-59 (2d Cir.2004). We first address Kambolli's challenge to the IJ's denial of his application for asylum. Under the INA, the Attorney General may grant asylum to persons meeting the definition of "refugee." See 8 U.S.C. § 1158(b) (providing discretion to Attorney General); Id. § 1101(a)(42) (defining "refugee"). We review an IJ's factual findings for "substantial evidence." See, e.g., Majidi v. Gonzales, 430 F.3d 77, 81 (2d Cir. 2005); see also 8 U.S.C. § 1252(b)(4)(B) ("[A]dministrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary[.]").

Kambolli based his request for asylum on the following allegations, which are drawn from his application and his testimony before the IJ. After the fall of Albania's communist government in 1991, Kambolli joined the Democratic Party, which contended with the Socialist Party for political supremacy in the country. Active in Democratic Party politics, Kambolli became a local party leader and eventually ran in his village for an office that he describes as being equivalent to an American mayoralty. He defeated the incumbent Socialist Party mayor, but the incumbent refused to surrender the office on the ground that he did not accept the results of the election. As required by Albanian law, Kambolli appealed to the region's governor, a Socialist Party official who summarily rejected the appeal. Because of local corruption, Kambolli allegedly knew that recourse to the courts would be futile.

Thereafter, Kambolli returned home and there was threatened by four policemen who came to his house. The officers, one of whom Kambolli recognized as a local Socialist, told him to abandon his quest for office or leave Albania; otherwise, Kambolli was informed, the police would "damage" him or his family. Kambolli then moved with his family to another Albanian city, where he stayed a few months, until coming to the United States and overstaying his visa.²

In support of his claim that he suffered persecution, Kambolli alleged also that (1) his house was vandalized by Socialist Party operatives; (2) Democratic Party members are often harassed and occasionally killed on account of their political activity; and (3) he is a sufficiently well-known party leader that he would be attacked if he returned to Albania. In addition to the relevant testimony and newspaper articles recounting conditions in Albania, the State Department Profile of Asylum Claims and Country Report was introduced into the record before the IJ.

The IJ found that the mistreatment Kambolli allegedly suffered, while unfortunate, did not rise to persecution because there was "no evidence in the record that [he] was at all harmed in Albania for any reason." Largely because Kambolli and his family were left alone after moving elsewhere in Albania, the IJ determined that Kambolli had no well-founded fear of future persecution, stating that "there's simply not enough evidence to show that he'd be singled out if he had to return to Albania." Accordingly, the IJ rejected Kambolli's asylum claim and also denied his request for withholding of removal under the INA.³ Reviewing the IJ's legal conclusions de novo, we hold that the IJ correctly denied Kambolli's asylum claim— based on a finding that the facts testified to by Kambolli did not constitute persecution and that Kambolli did not demonstrate a well-founded fear of persecution— in light of the following facts established in the record: (1) there was a lack of physical harm to Kambolli; (2) Kambolli successfully evaded trouble by relocating within Albania; and (3) Kambolli's only direct run-in with authorities consisted of a single threatening meeting with local police.⁴ See, e.g., Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.1993) (Alito, J.) ("[P]ersecution does not encompass all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional.").

Because Kambolli did not demonstrate his eligibility for asylum, the IJ did not err in determining that Kambolli failed to meet his burden to establish entitlement to withholding of removal under the INA. See Abankwah, 185 F.3d at 22.

II. Kambolli's CAT Claim

As Kambolli did not raise his CAT claim on appeal to the BIA, he has failed to exhaust his administrative remedies before the Board and therefore has waived his CAT claim on appeal to this Court. See 8 U.S.C. § 1252(d)(1) ("A court may review a final order of removal only if ... the alien has exhausted all administrative remedies available to the alien as of right."); Foster v. INS, 376 F.3d 75, 78 (2d Cir.2004) ("[W]e require `[p]etitioner to raise issues to the BIA in order to preserve them for judicial review.'" (quoting Cervantes-Ascencio v. INS, 326 F.3d 83 87 (2d Cir.2003)) (emphasis and second alteration in original)). Kambolli's petition for review must therefore be denied to the extent it seeks review of his CAT claim.

III. Jurisdiction To Review the BIA Member's Decision To Affirm the IJ's Order Unilaterally

Kambolli argues that the Board member reviewing his appeal erred in unilaterally affirming the IJ's decision without opinion pursuant to 8 C.F.R. § 1003.1(e)(4), instead of referring the case to a three-member panel. The argument is, in essence, that because the IJ made significant errors, affirmance without opinion by a single Board member acting alone under the Board's "streamlining" regulations— without reference to a three-member BIA panel—is not appropriate. We consider here whether an aggrieved applicant's challenge to a single member's decision to dispose of a case unilaterally presents a reviewable question separate from the applicant's general request for review of the underlying merits of the claims he presented to the IJ.

A. Origin, Development, and Practical Details of the "Streamlining" Program

The Department of Justice promulgated the "streamlining" regulations, which are codified at 8 C.F.R. § 1003.1(e), in response to a crushing backlog of immigration appeals. See Executive Office for Immigration Review; Board of Immigration Appeals: Streamlining, 64 Fed.Reg. 56,135, 53,136 (Oct. 18, 1999) (enacting streamlining rules and noting that BIA received "fewer than 3,000 new appeals and motions" in 1984 and received "in excess of 28,000 new appeals and motions" in 1998); Board of Immigration Appeals: Procedural Reforms To Improve Case Management, 67 Fed.Reg. 54,878, 54,878 (Aug. 26, 2002) (amending streamlining rules and noting that the "pending case-load on September 30, 2001[ ] totaled 57,597 cases"); see also id. at 54,879 (raising "concern that many appeals have been filed precisely to take advantage of [the] delay" under the prior policy of referring all cases to three-member panels, because cases "have routinely remained pending . . . for more than two years, and some cases have taken more than five years to resolve"). The backlog has since been reduced by about half. See note 18, post.

The BIA's "streamlining" regulations for adjudicating those appeals of IJ orders not dismissed for procedural default or similar reasons (i.e., those appeals receiving merits review by the BIA) are set forth at 8 C.F.R. § 1003.1(e)(3)-(6). Under the regulations,

The Board member to whom a case is assigned⁵ shall affirm the decision of the Service or the immigration judge, without opinion, if the Board member determines that the result reached in the decision under review was correct; that any errors in the decision under review were harmless or...