Lanazi v. Gonzales

204 F. App'x 971
CourtCourt of Appeals for the Second Circuit
DecidedNovember 13, 2006
DocketNo. 06-2350-ag
StatusPublished

This text of 204 F. App'x 971 (Lanazi v. Gonzales) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lanazi v. Gonzales, 204 F. App'x 971 (2d Cir. 2006).

Opinion

SUMMARY ORDER

Petitioner Merita Lanazi, a native and citizen of Albania, seeks review of an April 24, 2006 order of the BIA affirming the December 9, 2004 decision of Immigration Judge (“IJ”) Adam Opaciuch denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Merita Lanazi, No. A97 152 690 (B.I.A. Apr. 24, 2006), aff'g No. A97 152 690 (Immig. Ct. N.Y. City Dec. 9, 2004). We assume the parties’ familiarity with the underlying facts and procedural history of the case.

Since the BIA vacated the IJ’s adverse credibility determination, the only issue before this Court is whether Lanazi, presumed to be credible, met her burden of proof. Here, the BIA agreed with the IJ’s decision that Lanazi failed to meet her burden of proof with respect to her asylum and withholding of removal claims, but the BIA did not expressly adopt the IJ’s findings. Accordingly, this Court can review both the IJ’s and the BIA’s opinions regarding the burden of proof findings. Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir.2006). This Court reviews the agency’s factual findings, including adverse credibility determinations, under the 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); Zhou Yun Zhang v. INS, 386 F.3d 66, 73 [973]*973& n. 7 (2d Cir.2004). However, we will vacate and remand for new findings if the agency’s reasoning or its factfinding process was sufficiently flawed. Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.2005); Tian-Yong Chen v. INS, 359 F.3d 121, 129 (2d Cir.2004); see also Xiao Ji Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 158 (2d Cir.2006) (agreeing with this principle, but noting that affirmance is appropriate when the reviewing court can confidently predict that the IJ would adhere to the decision were the case remanded).

In order to succeed on an asylum claim, the applicant must show that the persecutor was motivated by his or her perception of the applicant’s opinion, rather than merely by his or her own opinion. Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 (2d Cir.2005). In other words, it is insufficient that the persecutor act from “a generalized political motive.” INS v. Elias-Zacarias, 502 U.S. 478, 482, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (internal quotation marks omitted). Instead, the “applicant must also show, through direct or circumstantial evidence, that the persecutor’s motive to persecute arises from the applicant’s political belief.” Yueqing Zhang, 426 F.3d at 545 (citing Elias-Zacarias, 502 U.S. at 483, 112 S.Ct. 812).

Lanazi testified that in 1997 she became a member with full rights in the Democratic Party (“DP”) and thereafter she suffered threats, beatings, and a 16 hour detention on account of her DP membership. Specifically, Lanazi testified that (1) in 1997 the Socialist Party threatened to kill her and broke the windows of her house 4 or 5 times, (2) in 2001 she was beaten while participating in a political demonstration, (3) in 2001 she was arrested in her home and kept for 16 hours in a jail where she was beaten and told to stop supporting the Democratic Party or else she would be killed or sold into prostitution, and (4) in 2002 the police came to her home to arrest her husband for participating in a political demonstration and during the arrest the police attempted to grope her. The BIA found that the IJ’s adverse credibility determination regarding respondent’s claims of persecution was error. Nevertheless, the BIA affirmed the IJ’s finding that Lanazi failed to establish either past persecution or a well-founded fear of future persecution because her testimony was not corroborated and there had been a change in the government in Albania.

Although an applicant can succeed on an asylum claim by proving only that the persecution occurred on account of an imputed political opinion, see Chun Gao v. Gonzales, 424 F.3d 122, 129 (2d Cir.2005), Lanazi did not make that argument here. In fact, her entire claim rested on her assertion that she was a member of the DP and was persecuted as a result. Accordingly, it was essential for Lanazi to prove, by a preponderance of the evidence, that she was an active member in the DP in Albania. Without this proof, Lanazi would necessarily fail to establish a connection between the harm suffered and her actual political opinion.

This Court defers to the BIA’s rule that “[wjhile consistent, detailed, and credible testimony may be sufficient to carry the alien’s burden, evidence corroborating his story, or an explanation for its absence, may be required where it would reasonably be expected.” Diallo v. INS, 232 F.3d 279, 285 (2d Cir.2000); see also id. at 285-86 (citing 8 C.F.R. §§ 208.13(a), 208.16(b); In re S-M-J- 21 I. & N. Dec. 722, 724, 1997 WL 80984 (BIA 1997); In re Dass, 20 I. & N. Dec. 120, 124-25, 1989 WL 331876 (BIA 1989); In re Mogharrabi, 19 I. & N. Dec. 439, 445-46, 1987 WL 108943 (BIA 1987)). In this case, the [974]*974agency was reasonable in expecting additional proof of Lanazi’s DP membership, in the form of letters from her family. The IJ identified the particular missing, material documents and explained how they were reasonably available. Diallo, 232 F.3d at 290; Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 153 (2d Cir.2003).

The only explanation Lanazi provided for failing to present letters from her family members was that she did not think about having them write for her. She admitted to having recent contact with them on the telephone, and the IJ could fairly infer that it would have been reasonably easy for Lanazi to ask them for supporting letters. Here, the IJ was reasonable in rejecting Lanazi’s explanations because Lanazi should have known that a copy of her DP membership card, or other proof of membership, was essential to her claims.1 Because Lanazi failed to prove membership in the DP, the agency’s determination that Lanazi failed to prove a nexus to an enumerated ground is supported by substantial evidence.

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Related

Chun Gao v. Alberto R. Gonzales, Attorney General
424 F.3d 122 (Second Circuit, 2005)
S-M-J
21 I. & N. Dec. 722 (Board of Immigration Appeals, 1997)
DASS
20 I. & N. Dec. 120 (Board of Immigration Appeals, 1989)
MOGARRABI
19 I. & N. Dec. 439 (Board of Immigration Appeals, 1987)

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Bluebook (online)
204 F. App'x 971, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lanazi-v-gonzales-ca2-2006.