Agani v. Sessions

• Court: Court of Appeals for the Second Circuit
• Decided: February 6, 2018
• Docket: 14-2373
• Status: Unpublished

Opinion

14-2373 Agani v. Sessions BIA Morace, IJ A094 004 723/692

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.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 6th day of February, two thousand eighteen.

PRESENT: ROBERT A. KATZMANN, Chief Judge, REENA RAGGI, SUSAN L. CARNEY, Circuit Judges. _____________________________________

SAUDIN AGANI, AKA SAUDIN LALICIC, AKA SAUD LALICIC, AKA SAUD AGANI, DANIJELA AGANI, AKA DANIYELA AGANI, Petitioners,

v. 14-2373 NAC JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONERS: Lauren Anselowitz, Harlan York & Associates, Newark, NJ.

FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy Assistant Attorney General; Andrew N. O’Malley, Senior Litigation Counsel; Matt A. Crapo, Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review is

DENIED.

Petitioners Saudin and Danijela Agani, natives of Germany

and citizens of Bosnia and Herzegovina, seek review of a May

30, 2014, decision of the BIA affirming an August 9, 2012,

decision of an Immigration Judge (“IJ”) denying their

applications for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”). In re Saudin

Agani, Danijela Agani, Nos. A094 004 723/692 (B.I.A. May 30,

2014), aff’g No. A094 004 723/692 (Immig. Ct. N.Y. City Aug.

9, 2012). We assume the parties’ familiarity with the

underlying facts and procedural history in this case.

We have reviewed both the IJ’s and BIA’s decisions “for the

sake of completeness.” Lecaj v. Holder, 616 F.3d 111, 114 (2d

Cir. 2010) (internal quotation marks omitted). We review the

agency’s factual findings for substantial evidence, reversing

only if “any reasonable adjudicator would be compelled to

conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We

review de novo questions of law, including the application of

law to undisputed facts. Mirzoyan v. Gonzales, 457 F.3d 217,

2 220 (2d Cir. 2006). Here, the agency reasonably concluded that

the Aganis did not establish a likelihood of persecution or

torture in either Bosnia and Herzegovina or Germany.

Persecution includes “non-life threatening violence and

physical abuse, or non-physical forms of harm such as the

deliberate imposition of a substantial economic disadvantage,”

but “does not encompass mere harassment.” Ivanishvili v. U.S.

Dep’t of Justice, 433 F.3d 332, 341 (2d Cir. 2006) (internal

quotation marks, alteration, and citations omitted). In the

case of non-governmental persecution, the applicant must also

demonstrate that the government is “unwilling or unable to

control” the private actors. Ruqiang Yu v. Holder, 693 F.3d

294, 298 (2d Cir. 2012).

The agency properly declined to consider Saudin Agani’s

mistreatment as a child in Kosovo because Kosovo is not a country

of removal. 8 C.F.R. § 1208.16(b)(1)(i). The agency also

reasonably concluded that the Aganis did not establish that they

would be singled out for persecution in Bosnia and Herzegovina,

or that there is a pattern or practice of persecution of mixed

ethnicity families in Bosnia and Herzegovina. 8 C.F.R. §

1208.16(b)(2); see Santoso v. Holder, 580 F.3d 110, 112 (2d Cir.

2009).

The Aganis also argue that their past treatment in Germany,

considered cumulatively, amounted to persecution. See 3 Poradisova v. Gonzales, 420 F.3d 70, 80 (2d Cir. 2005) (past

incidents of harm should be considered cumulatively). While

this treatment may amount to unlawful harassment, the agency

reasonably concluded that it did not rise to the level of

persecution. See Ivanishvili, 433 F.3d at 341-42 (describing

the difference between harassment and persecution).

Further, the record does not compel a conclusion that the

Aganis will likely face persecution in Germany. See 8 U.S.C.

§ 1252(b)(4)(B).

For the same reasons discussed above, the BIA reasonably

found that the Aganis cannot show a likelihood of torture. Cf.

Lecaj, 616 F.3d at 119-20.

We have considered the Aganis’ remaining arguments and

found them to be without merit. For the foregoing reasons, the

petition for review is DENIED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk