Gentian Ashafi v. Eric Holder, Jr.

418 F. App'x 447
CourtCourt of Appeals for the Sixth Circuit
DecidedApril 12, 2011
Docket09-4008
StatusUnpublished
Cited by2 cases

This text of 418 F. App'x 447 (Gentian Ashafi v. Eric Holder, Jr.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Gentian Ashafi v. Eric Holder, Jr., 418 F. App'x 447 (6th Cir. 2011).

Opinion

COOK, Circuit Judge.

Gentian Ashafi challenges an order of the Board of Immigration Appeals (BIA) denying both his motion to remand and his application for asylum and withholding of removal. We deny his petition.

I.

Ashafi is an Albanian native and citizen and a member of Albania’s Democratic Party. Throughout his young adulthood, Ashafi’s political affiliation prompted Albanian Socialist authorities to beat and threaten him. Seeking to avoid further persecution, both Ashafi and his brother, Armand, obtained phony passports and traveled to the United States. When immigration officials apprehended Ashafi, he conceded removability and applied for asylum, withholding of removal, and protection under the Convention Against Torture.

An Immigration Judge (IJ) held a hearing on the merits of Ashafi’s application. The government argued that, even if Ashafi had faced persecution in the past, recent changes in Albania’s political landscape left him with nothing to fear. It produced reports reflecting that Ashafi’s own political party has enjoyed power since 2005, and that the political parties no longer engage in persecution. Ashafi countered that, regardless of these changes, he still fears persecution because Socialists continue to control many of the local governments and have persistently harassed his family. Dr. Fischer, an expert, bolstered Ashafi’s testimony with his own, opining that Ashafi may still face persecution should he return to Albania.

Following the hearing, the IJ denied Ashafi’s application. Though the IJ assumed for the sake of argument that Ashafi experienced persecution in the past, she agreed with the government that changes in Albania negated any well-founded fear of future persecution.

While Ashafi’s appeal of this denial pended before the BIA, an IJ in Chicago granted asylum to Ashafi’s brother. The apparent disparity between these decisions spurred Ashafi to move for remand of his case. The BIA denied the motion to remand and affirmed the IJ’s decision.

II.

Ashafi argues that the BIA improperly denied (a) his application for asylum and withholding of removal and (b) his motion to remand.

A.

Ashafi first challenges the denial of his application for asylum and withholding of removal. Because the BIA adopted and affirmed the IJ’s decision, we examine the IJ’s decision directly while considering any comments made by the BIA. Gilaj v. Gonzales, 408 F.3d 275, 282-88 (6th Cir.2005) (per curiam). In reviewing the IJ’s factual findings, we ask whether substantial evi *449 dence supports them. Marku v. Ashcroft, 380 F.3d 982, 986 (6th Cir.2004). We thus uphold these findings as long as they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole,” and reverse only if “the evidence not only supports a contrary conclusion, but compels it.” Id. (internal quotation marks and citation omitted).

The IJ assumed that Ashafi suffered past persecution on the basis of his political opinion, entitling him to a presumption that he possessed a well-founded fear of future persecution meriting asylum. See 8 C.F.R. § 1208.13(b)(1). But the government may rebut this presumption by showing, by a preponderance of the evidence, that there “has been a fundamental change in circumstances” in Ashafi’s country that eliminates the need for his fear. Id. § 1208.13(b)(l)(i)(A).

Substantial evidence supports the IJ’s determination that the government made that showing here. In finding Ashafi’s presumption of fear rebutted, the IJ explained that Ashafi’s own political party has maintained power since 2005, and that the U.S. State Department Country Reports on Albania suggest that, although “serious political oppression existed in the past,” “no outbreaks of political violence [have occurred] since 1998.” This finding aligns with a laundry list of decisions by this court recognizing that changed political circumstances prevent once-persecuted Albanians from now seeking asylum. See, e.g., Preducaj v. Holder, 379 Fed.Appx. 508, 511 (6th Cir.2010); Trifoni v. Holder, 351 Fed.Appx. 19, 23 (6th Cir.2009); Maklaj v. Mukasey, 306 Fed.Appx. 262, 264 (6th Cir.2009).

Resisting this conclusion, Ashafi argues that while the political situation in Albania has improved, his personal fear of persecution has not. He notes that the IJ must determine whether he “still faces an individualized threat of future persecution, notwithstanding the changed country conditions described in the Country Reports.” See Mapouya v. Gonzales, 487 F.3d 396, 412 (6th Cir.2007). And he claims that the IJ neglected both his family’s continued troubles with Albanian authorities and Dr. Fischer’s testimony that he would still face danger from local Socialist sects. The IJ, Ashafi contends, should have weighed the “general information” in the Country Reports against “the specific evidence provided by [the] Petitioner.”

But the IJ did precisely that. Her opinion addressed Dr. Fischer’s testimony and the alleged harassment of Ashafi’s family, concluding that Ashafi provided only reasons to fear “civil unrest and general country conditions” — not “persecution.” See Akhtar v. Gonzales, 406 F.3d 399, 405 (6th Cir.2005). Moreover, the IJ observed that Ashafi suffered no persecution between 1992 and 1997 — the last time his party was in power — and noted that Albania’s current situation closely tracks that earlier period.

The IJ thus reasonably determined that, as Albanian political tensions subsided, so did Ashafi’s well-founded fear of persecution. Because nothing in the record compels a contrary conclusion, see Marku, 380 F.3d at 986, Ashafi is ineligible for asylum. Further, Ashafi’s “failure to meet the requirements for asylum means that [he] is also ineligible for withholding of removal.” See Preducaj, 379 Fed.Appx. at 511-12.

B.

Ashafi next challenges the BIA’s denial of his motion to remand. The BIA “ordinarily will not consider a discretionary grant of a motion to remand unless the moving party meets a ‘heavy burden’ and presents evidence ... [that] would likely change the result in the case.” Matter of *450 Coelho, 20 I. & N. Dec. 464, 478 (BIA 1992). We review a denial of a motion to remand for abuse of discretion, asking whether it “was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination.” Sarr v. Gonzales,

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