Lecaj v. Holder

• Decision Date: 03 August 2010
• Docket Number: Docket No. 09-0768-ag.
• Citation: 616 F.3d 111
• Parties: Fatmir LECAJ, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

616 F.3d 111

Fatmir LECAJ, Petitioner,

v.Eric H. HOLDER, Jr., United States Attorney General, Respondent.

Docket No. 09-0768-ag.

United States Court of Appeals,Second Circuit.

Argued: May 11, 2010.

Decided: Aug. 3, 2010.

Thomas Moseley, Newark, NJ, for Petitioner.

Yamileth G. Handuber, Trial Attorney, Office of Immigration Litigation (Ada E. Bosque, Trial Attorney, Office of Immigration Litigation; William C. Peachey, Assistant Director, Office of Immigration Litigation; and Tony West, Assistant Attorney General, Civil Division, on the brief), United States Department of Justice, Civil Division, Washington, D.C., for Respondent.

Before: JACOBS, Chief Judge, WINTER and McLAUGHLIN, Circuit Judges.

DENNIS JACOBS, Chief Judge:

Petitioner Fatmir Lecaj, a native of the former Yugoslavia, seeks review of the order of the Board of Immigration Appeals (the “BIA”) and the decision of Immigration Judge Paul A. DeFonzo (the “IJ”) denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Fatmir Lecaj, No. A 99 075 388 (B.I.A. Jan. 30, 2009), aff'g No. A 99 075 388 (Immig. Ct. N.Y. City July 25, 2007).

Lecaj was born in Montenegro when it was a component of Yugoslavia; he claims he was persecuted because of his Albanian ethnicity and other characteristics during a time Serbia and Montenegro were in a federation following the dissolution of Yugoslavia. Since his departure, Montenegro has become independent of Serbia.

Lecaj principally argues that (1) the agency should have considered Serbia (rather than Montenegro) as the country of removal; and (2) the agency failed to undertake a sufficiently individualized evaluation of how the changes in Montenegrin country conditions would affect him. The petition for review is denied.

BACKGROUND

The IJ made “an overall positive credibility determination in this case” and recounted the following incidents suffered by Lecaj: As a member of the Serbian/Montenegrin Armed Forces in 2001 and 2002, Lecaj “was frequently harassed and was beaten on at least one occasion” on account of his Albanian ethnicity. ¹ In March 2003, police officers came to Lecaj's place of employment, destroyed documents, and threatened him. In December 2003, they returned, beat him, and accused him of being a terrorist. In February 2004, border guards (of some entity) confiscated gifts he was carrying for relatives and accused him of being a terrorist. In May 2004, two police officers came to his place of employment, arrested him, transported him to the police station, put him in a room, questioned him, and beat him. After this last incident, Lecaj left for the United States. ²

Lecaj entered this country in June 2004, using a false passport. In June 2005, he filed an affirmative application-which he later amended-seeking asylum, withholding of removal, and CAT relief. He claimed past persecution and a well-founded fear of persecution in the future based on (i) nationality-he is an ethnic Albanian, (ii) religion-he is Muslim, and (iii) political opinion-he was an active member of the Democratic League of Montenegro and the Democratic League of Kosovo.

In August 2005, Lecaj was served with a Notice to Appear charging him with removability based on his entry to the United States without valid travel documents. At a February 2006 hearing, Lecaj conceded removability, and renewed his application for asylum, withholding of removal, and CAT relief. At that hearing, Lecaj declined to designate a country for prospective removal. The government proposed Serbia and Montenegro (then in federation), and the IJ accepted that proposal.

At a July 25, 2007 merits hearing, the IJ observed that Montenegro had become independent since the previous hearing and asked Lecaj from what country he sought withholding of removal. ³ Lecaj designated Montenegro. The IJ found that Lecaj “is a citizen of Montenegro in view of the presentation ... of a Birth Certificate indicating that he is from the Montenegro region of Serbia/Montenegro.” The IJ further found that Lecaj possessed “a subjective fear of returning to his homeland,” but “in view of changed circumstances in Montenegro [Lecaj] no longer possesses a sufficient, objective basis of fearing persecution in that country.” Accordingly, the IJ denied asylum, withholding of removal, and CAT relief, and ordered Lecaj's removal to Montenegro. ⁴

Lecaj timely appealed the IJ's decision to the BIA. On January 30, 2009, the BIA dismissed Lecaj's appeal. Relying heavily on the United States Department of State Country Reports on Human Rights Practices-Montenegro 2006 (the “Report”), the BIA determined that “[e]ven if [Lecaj] had established past persecution on account of ethnicity by the Serbian-controlled police and military, the [IJ] correctly found that the presumption of a well-founded fear of future persecution had been rebutted.”

DISCUSSION

“When the BIA does not expressly adopt the IJ's decision, but its brief opinion closely tracks the IJ's reasoning, this Court may consider both the IJ's and the BIA's opinions for the sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.2008) (per curiam) (internal quotation marks omitted). We review factual findings under the deferential substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep't of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). “Legal questions, including mixed questions of law and fact and the application of law to fact, are reviewed de novo.” Manzur, 494 F.3d at 288.

I

Lecaj argues that he is not a citizen of Montenegro. Even assuming that he has administratively exhausted that argument, see Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 118-22 (2d Cir.2007) (explaining that the judicially imposed issue exhaustion requirement is not jurisdictional, but is ordinarily mandatory), it lacks merit. The IJ reasonably designated-and the BIA implicitly adopted-Montenegro as the country of removal in accordance with 8 U.S.C. § 1231(b)(2)(D) and (E). The extract from the birth registrar submitted in support of Lecaj's application indicated that he was born in and is a citizen of Montenegro. Lecaj's application listed Montenegro as his birthplace and last address before entering the United States. Moreover, Lecaj designated Montenegro as the country from which he sought withholding of removal, and submitted evidence regarding the likelihood of future persecution in Montenegro (and nowhere else).

II

Lecaj argues that the agency failed to undertake a sufficiently individualized analysis of how changes in Montenegrin country conditions would affect him. See Alibasic v. Mukasey, 547 F.3d 78, 87 & n. 6 (2d Cir.2008); Passi v. Mukasey, 535 F.3d 98, 101-02, 103-04 (2d Cir.2008). The agency seems to have overlooked or discounted aspects of the Report and other evidence bearing on Lecaj's ethnicity and situation. Nevertheless, we conclude that remand is not warranted because “we can state with confidence that the same decision would be made if we were to remand.” Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 335 (2d Cir.2006). Any oversight or discounting does not disturb the agency's conclusion-supported by substantial evidence-that the record demonstrates no pattern or practice of persecution likely to beset Lecaj. After Lecaj's departure, Montenegro became independent and country conditions fundamentally changed.

To establish eligibility for asylum, an applicant must show that he “has suffered past persecution” or “has a well-founded fear of future persecution.” 8 C.F.R. § 1208.13(b). “An applicant who has been found to have established ... past persecution shall also be presumed to have a well-founded fear of [future] persecution on the basis of the original claim.” Id. § 1208.13(b)(1). That presumption may be rebutted if “[t]here has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution” in the relevant country. Id. § 1208.13(b)(1)(i)(A). The government bears the burden to establish such a fundamental change in country conditions by a preponderance of the evidence. Id. § 1208.13(b)(1)(ii).

To determine whether the government has rebutted the presumption entails “an individualized analysis of whether the changes in conditions in [the relevant country] were so fundamental that they are sufficient to rebut the presumption that [an applicant's] fear of persecution is well founded.” Passi, 535 F.3d at 103-04. This individualized analysis may justify different outcomes for applicants from the same country, even where the agency considers the same documentary evidence:

While the State Department country reports often provide “a useful and informative overview of conditions in the applicant's home country,” we have instructed the immigration courts “not to place excessive reliance” on them. Tian-Yong Chen v. INS, 359 F.3d 121, 130 (2d Cir.2004). In Tambadou v. Gonzales we explained that the BIA cannot rely in a conclusory fashion on information in a State Department country report about “general changes in the country.” 446 F.3d [298] at 303 [ (2d Cir.2006) ] (internal quotation marks omitted). Instead, we explained, the BIA must “use the information in the [r]eport in a case-specific manner and supplement it with further analysis,” that is, the BIA must “conduct an individualized analysis of how changed conditions would affect the specific petitioner's situation.” Id. (internal quotation marks and alteration omitted).

Id. at 101-02 (alteration in original). “[W]here a report suggests that, in general, an [applicant] would not suffer or reasonably fear persecution in a particular country, the immigration court is still obligated to consider also any contrary or countervailing evidence with which it is presented, as well as the particular...