Ademaj v. Attorney General of the United States

486 F. App'x 984
CourtCourt of Appeals for the Third Circuit
DecidedJuly 17, 2012
DocketNo. 11-3976
StatusPublished

This text of 486 F. App'x 984 (Ademaj v. Attorney General of the United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ademaj v. Attorney General of the United States, 486 F. App'x 984 (3d Cir. 2012).

Opinion

OPINION

PER CURIAM.

Bajram Ademaj petitions for review of a final order of removal. For the reasons discussed below, we will deny the petition for review.

I.

Inasmuch as we are writing primarily for the parties who are familiar with the facts, we will recite them only as necessary to our decision. Ademaj, a native of the former Yugoslavia and citizen of Kosovo, entered the United States in July 2007, and filed applications for asylum, withholding of removal, and protection under the United Nations Convention Against Torture. He was thereafter served with a Notice to Appear charging him as removable under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien present without being admitted or paroled. At a hearing before an immigration judge (“IJ”), Ademaj admitted the factual allegations underlying the charge and conceded removability.

At a subsequent hearing regarding his requests for relief, Ademaj testified that he left Kosovo because he and his family endured threats and suffered physical and psychological mistreatment at the hands of Albanian extremists. Ademaj claimed that, although he and his family were ethnic Albanians and Muslims, the majority culture in Kosovo, they were viewed as traitors by Albanian extremists because his parents had aided in the construction of a Serbian Orthodox Church prior to the war that ultimately separated Kosovo from Serbia and Montenegro. In addition to mistreatment inspired by his family’s activities, Ademaj claimed that he was personally targeted for mistreatment by members of extremist Albanian organizations and political parties due to his support for the Democratic League of Kosovo (“LDK”). As a result, he was repeatedly threatened with death and, on one occasion, was beaten unconscious with an iron rod.

The IJ found that Ademaj had testified credibly and determined that the mistreatment he suffered constituted past persecution. Although that gave rise to a presumption of a well-founded fear of persecution, the IJ concluded that there had been a fundamental change in circumstances in Kosovo and that Ademaj had not otherwise established a well-founded fear of future persecution. The IJ also held that Ademaj’s past mistreatment was insufficiently egregious to justify humanitarian asylum, denied all relief, and ordered his removal.

The Board of Immigration Appeals (“BIA”) dismissed Ademaj’s appeal. It held that “even if [Ademaj] established past persecution on account of a protected ground, the [Government] has rebutted the presumption of a well-founded fear of persecution by demonstrating that there has been a fundamental change in circumstances such that [Ademaj] no longer has a well-founded fear of persecution.” The BIA cited two changes in circumstance in support: (1) the LDK controls the presidency of Kosovo and governs the country as part of a coalition government; and (2) after Ademaj left Kosovo, it became an [986]*986independent nation. In light of his return trips to Kosovo and the fact that his parents continue to live openly there without suffering any significant harm, the BIA likewise affirmed the IJ’s determination that Ademaj had not established a well-founded fear of future persecution. The BIA also agreed that Ademaj was ineligible for a grant of humanitarian asylum, and it affirmed the IJ’s denial of relief. Ademaj timely petitioned this Court for review.

II.

We have jurisdiction pursuant to 8 U.S.C. § 1252(a). Because the BIA issued its own opinion, we review its decision rather than that of the IJ. See Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir.2005). However, we also look to the decision of the IJ to the extent that the BIA deferred to or adopted the IJ’s reasoning. See Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.2006). We review factual determinations for substantial evidence, and will uphold such determinations unless any reasonable adjudicator would be compelled to reach a contrary conclusion. See Fiadjoe v. Att’y Gen., 411 F.3d 135, 153 (3d Cir.2005). The BIA’s discretionary decision to deny asylum on humanitarian grounds must be upheld unless it is manifestly contrary to law and an abuse of discretion. See 8 U.S.C. § 1252(b)(4)(D).

III.

Ademaj challenges the BIA’s determinations that he was ineligible for humanitarian asylum and that the presumption of a well-founded fear of future persecution was rebutted by changed country conditions.1

A. Humanitarian Asylum

“[I]n limited circumstances past persecution alone may warrant a grant of asylum, even in the absence of a future threat of persecution,” Al-Fara v. Gonzales, 404 F.3d 733, 740 (3d Cir.2005) (citing Matter of Chen, 20 I. & N. Dec. 16 (BIA 1989)). This so-called “humanitarian asylum” is reserved for those applicants who have suffered particularly atrocious persecution. See Sheriff v. Att’y Gen., 587 F.3d 584, 594 (3d Cir.2009) (noting.that persecution entitling an alien to humanitarian asylum “must have been extreme” and “atrocious”). It has historically been granted to Holocaust survivors, victims of the Chinese “Cultural Revolution,” and survivors of the Cambodian genocide, and has been extended in other extremely serious cases. See id. at 594-95 (remanding to BIA for consideration of humanitarian asylum claim where applicant’s home was burned to the ground, and her family members were murdered, injured, and raped); see also Brucaj v. Ashcroft, 381 F.3d 602, 609-11 (7th Cir.2004) (remand where BIA failed to consider claim of applicant who was gang-raped and beaten by soldiers in front of her parents); Vongsakdy v. INS, 171 F.3d 1203, 1206-07 (9th Cir.1999) (granting humanitarian asylum to applicant who was placed in a labor camp, permanently injured, denied ade[987]*987quate food, and subjected to Communist “reeducation” program).

Ademaj argues that the mistreatment he suffered was sufficiently egregious to qualify him for humanitarian relief. While we agree with the BIA that his mistreatment was deplorable, it falls short of the atrocities contemplated in the cases mentioned above. The BIA’s denial of humanitarian asylum was therefore not “manifestly contrary to the law and an abuse of discretion.” 8 U.S.C. § 1252(b)(4)(D).

B. Fear of Future Persecution

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Li Hua Yuan v. Attorney General of US
642 F.3d 420 (Third Circuit, 2011)
Viollca Brucaj v. John D. Ashcroft
381 F.3d 602 (Seventh Circuit, 2004)
Sheriff v. Attorney General of the United States
587 F.3d 584 (Third Circuit, 2009)
CHEN
20 I. & N. Dec. 16 (Board of Immigration Appeals, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
486 F. App'x 984, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ademaj-v-attorney-general-of-the-united-states-ca3-2012.