21-6430 Lekocaj v. Garland BIA McFarland, IJ A206 189 339
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 A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 11th day of September, two thousand 4 twenty-three. 5 6 PRESENT: 7 JOHN M. WALKER, JR., 8 WILLIAM J. NARDINI, 9 BETH ROBINSON, 10 Circuit Judges. 11 _____________________________________ 12 13 DEJVIS LEKOCAJ, 14 Petitioner, 15 16 v. 21-6430 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Judy Resnick, Esq., Far Rockaway, NY. 1 FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant 2 Attorney General; Paul Fiorino, Senior 3 Litigation Counsel; Brooke Marie Maurer, 4 Trial Attorney, Office of Immigration 5 Litigation, United States Department of 6 Justice, Washington, DC.
7 UPON DUE CONSIDERATION of this petition for review of a Board of
8 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
9 DECREED that the petition for review is DENIED.
10 Petitioner Dejvis Lekocaj, a native and citizen of Albania, seeks review of a
11 July 22, 2021, decision of the BIA affirming a March 1, 2019, decision of an
12 Immigration Judge (“IJ”) denying his application for asylum, withholding of
13 removal, and relief under the Convention Against Torture (“CAT”). In re Dejvis
14 Lekocaj, No. A 206 189 339 (B.I.A. July 22, 2021), aff’g No. A 206 189 339 (Immig. Ct.
15 N.Y. City Mar. 1, 2019). We assume the parties’ familiarity with the underlying
16 facts and procedural history.
17 We have reviewed “both the IJ’s and the BIA’s opinions for the sake of
18 completeness.” Huo Qiang Chen v. Holder, 773 F.3d 396, 403 (2d Cir. 2014) (internal
19 quotation marks omitted). We review factual findings for substantial evidence
20 and questions of law and application of law to undisputed fact de novo. Paloka v.
21 Holder, 762 F.3d 191, 195 (2d Cir. 2014). “[T]he administrative findings of fact are 2 1 conclusive unless any reasonable adjudicator would be compelled to conclude to
2 the contrary.” 8 U.S.C. § 1252(b)(4)(B).
3 An asylum applicant has the burden to establish “past persecution” or a
4 “well-founded fear” of future persecution “on account of race, religion,
5 nationality, membership in a particular social group, or political opinion.”
6 8 C.F.R. § 1208.13(a), (b)(1)–(2); see also 8 U.S.C. § 1158(b)(1)(B)(i).
7 I. Past Persecution
8 The agency did not err in concluding that Lekocaj failed to demonstrate that
9 his experience in Albania rose to the level of persecution. Lekocaj alleged that,
10 before local elections in 2013, members of the Socialist Party (“SP”) threatened his
11 father, including by threatening to beat or kill him and his family because they
12 supported the Democratic Party (“DP”), then he was individually threatened by
13 four SP members who stopped him on the way to school and warned him that
14 “bad things are going to happen.” He confirmed that the SP members were
15 unarmed and did not physically assault him. The agency did not err in
16 concluding that, in the absence of physical harm, these threats, only one of which
17 was a direct threat, did not rise to the level of persecution. Persecution may
18 “encompass[] a variety of forms of adverse treatment, including ‘non-life-
3 1 threatening violence and physical abuse,’” but the harm must be sufficiently
2 severe, rising above “mere harassment.” Ivanishvili v. U.S. Dep’t of Just., 433 F.3d
3 332, 341 (2d Cir. 2006) (quoting Chen v. U.S. I.N.S., 359 F.3d 121, 128 (2d Cir. 2004))
4 (brackets omitted). See Zhen Hua Li v. Att’y Gen., 400 F.3d 157, 164 (3d Cir. 2005)
5 (holding that “unfulfilled threats must be of a highly imminent and menacing
6 nature in order to constitute persecution”); Lim v. INS, 224 F.3d 929, 936 (9th Cir.
7 2000) (recognizing “a small category of cases” in which threats can amount to past
8 persecution if they “are so menacing as to cause significant actual ‘suffering or
9 harm’”).
10 II. Well-Founded Fear of Future Persecution
11 Having failed to show past persecution, Lekocaj had the burden to establish
12 an “objectively reasonable” fear of future persecution. See Ramsameachire v.
13 Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004); see also 8 C.F.R. § 1208.13(b)(1), (2)(iii).
14 “Objective reasonableness entails a showing that a reasonable person in the
15 petitioner’s circumstances would fear persecution if returned to his native
16 country.” Jian Xing Huang v. U.S. INS, 421 F.3d 125, 128 (2d Cir. 2005). A “fear
17 may be well-founded even if there is only a slight, though discernible, chance of
18 persecution.” Diallo v. INS, 232 F.3d 279, 284 (2d Cir. 2000). But a fear is not
4 1 objectively reasonable if it lacks “solid support” in the record and is “speculative
2 at best.” Jian Xing Huang, 421 F.3d at 129.
3 The agency did not err in concluding that Lekocaj had not established an
4 objectively reasonable fear of persecution by the SP. Lekocaj testified that neither
5 of his parents, both of whom are DP members and have remained in Albania, have
6 been detained, arrested, or physically attacked because of their political beliefs.
7 He confirmed that they had no problems with the police or the military in Albania.
8 Accordingly, Lekocaj’s fear of future harm is “undercut by evidence that similarly
9 situated family members remain unharmed.” Lianping Li v. Lynch, 839 F.3d 144,
10 151 (2d Cir. 2016). The U.S. State Department’s 2017 Human Rights report does
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21-6430 Lekocaj v. Garland BIA McFarland, IJ A206 189 339
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 A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 11th day of September, two thousand 4 twenty-three. 5 6 PRESENT: 7 JOHN M. WALKER, JR., 8 WILLIAM J. NARDINI, 9 BETH ROBINSON, 10 Circuit Judges. 11 _____________________________________ 12 13 DEJVIS LEKOCAJ, 14 Petitioner, 15 16 v. 21-6430 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Judy Resnick, Esq., Far Rockaway, NY. 1 FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant 2 Attorney General; Paul Fiorino, Senior 3 Litigation Counsel; Brooke Marie Maurer, 4 Trial Attorney, Office of Immigration 5 Litigation, United States Department of 6 Justice, Washington, DC.
7 UPON DUE CONSIDERATION of this petition for review of a Board of
8 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
9 DECREED that the petition for review is DENIED.
10 Petitioner Dejvis Lekocaj, a native and citizen of Albania, seeks review of a
11 July 22, 2021, decision of the BIA affirming a March 1, 2019, decision of an
12 Immigration Judge (“IJ”) denying his application for asylum, withholding of
13 removal, and relief under the Convention Against Torture (“CAT”). In re Dejvis
14 Lekocaj, No. A 206 189 339 (B.I.A. July 22, 2021), aff’g No. A 206 189 339 (Immig. Ct.
15 N.Y. City Mar. 1, 2019). We assume the parties’ familiarity with the underlying
16 facts and procedural history.
17 We have reviewed “both the IJ’s and the BIA’s opinions for the sake of
18 completeness.” Huo Qiang Chen v. Holder, 773 F.3d 396, 403 (2d Cir. 2014) (internal
19 quotation marks omitted). We review factual findings for substantial evidence
20 and questions of law and application of law to undisputed fact de novo. Paloka v.
21 Holder, 762 F.3d 191, 195 (2d Cir. 2014). “[T]he administrative findings of fact are 2 1 conclusive unless any reasonable adjudicator would be compelled to conclude to
2 the contrary.” 8 U.S.C. § 1252(b)(4)(B).
3 An asylum applicant has the burden to establish “past persecution” or a
4 “well-founded fear” of future persecution “on account of race, religion,
5 nationality, membership in a particular social group, or political opinion.”
6 8 C.F.R. § 1208.13(a), (b)(1)–(2); see also 8 U.S.C. § 1158(b)(1)(B)(i).
7 I. Past Persecution
8 The agency did not err in concluding that Lekocaj failed to demonstrate that
9 his experience in Albania rose to the level of persecution. Lekocaj alleged that,
10 before local elections in 2013, members of the Socialist Party (“SP”) threatened his
11 father, including by threatening to beat or kill him and his family because they
12 supported the Democratic Party (“DP”), then he was individually threatened by
13 four SP members who stopped him on the way to school and warned him that
14 “bad things are going to happen.” He confirmed that the SP members were
15 unarmed and did not physically assault him. The agency did not err in
16 concluding that, in the absence of physical harm, these threats, only one of which
17 was a direct threat, did not rise to the level of persecution. Persecution may
18 “encompass[] a variety of forms of adverse treatment, including ‘non-life-
3 1 threatening violence and physical abuse,’” but the harm must be sufficiently
2 severe, rising above “mere harassment.” Ivanishvili v. U.S. Dep’t of Just., 433 F.3d
3 332, 341 (2d Cir. 2006) (quoting Chen v. U.S. I.N.S., 359 F.3d 121, 128 (2d Cir. 2004))
4 (brackets omitted). See Zhen Hua Li v. Att’y Gen., 400 F.3d 157, 164 (3d Cir. 2005)
5 (holding that “unfulfilled threats must be of a highly imminent and menacing
6 nature in order to constitute persecution”); Lim v. INS, 224 F.3d 929, 936 (9th Cir.
7 2000) (recognizing “a small category of cases” in which threats can amount to past
8 persecution if they “are so menacing as to cause significant actual ‘suffering or
9 harm’”).
10 II. Well-Founded Fear of Future Persecution
11 Having failed to show past persecution, Lekocaj had the burden to establish
12 an “objectively reasonable” fear of future persecution. See Ramsameachire v.
13 Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004); see also 8 C.F.R. § 1208.13(b)(1), (2)(iii).
14 “Objective reasonableness entails a showing that a reasonable person in the
15 petitioner’s circumstances would fear persecution if returned to his native
16 country.” Jian Xing Huang v. U.S. INS, 421 F.3d 125, 128 (2d Cir. 2005). A “fear
17 may be well-founded even if there is only a slight, though discernible, chance of
18 persecution.” Diallo v. INS, 232 F.3d 279, 284 (2d Cir. 2000). But a fear is not
4 1 objectively reasonable if it lacks “solid support” in the record and is “speculative
2 at best.” Jian Xing Huang, 421 F.3d at 129.
3 The agency did not err in concluding that Lekocaj had not established an
4 objectively reasonable fear of persecution by the SP. Lekocaj testified that neither
5 of his parents, both of whom are DP members and have remained in Albania, have
6 been detained, arrested, or physically attacked because of their political beliefs.
7 He confirmed that they had no problems with the police or the military in Albania.
8 Accordingly, Lekocaj’s fear of future harm is “undercut by evidence that similarly
9 situated family members remain unharmed.” Lianping Li v. Lynch, 839 F.3d 144,
10 151 (2d Cir. 2016). The U.S. State Department’s 2017 Human Rights report does
11 not provide evidence to the contrary: it acknowledged allegations of vote buying
12 in recent elections, identified the most significant human rights issues as
13 “limitations on express and the press, including self-censorship and intimidation
14 of journalists,” and found “pervasive corruption in all branches of government,”
15 but also found no reports that the government or its agents committed arbitrary
16 or unlawful killings or disappearances. The agency reasonably credited Lekocaj’s
17 own circumstances over his expert’s conclusions, given that his parents remained
18 in Albania and had not been harmed or received threats after 2013. Cf. Jian Xing
5 1 Huang, 421 F.3d at 129 (treating as probative petitioner’s failure to allege
2 persecution of similarly situated family members); see also Y.C. v. Holder, 741 F.3d
3 324, 332 (2d Cir. 2013) (“We generally defer to the agency’s evaluation of the
4 weight to be afforded an applicant’s documentary evidence.”).
5 In sum, Lekocaj failed to meet his burden for asylum because he did not
6 allege past harm that rose to the level of persecution or establish an objectively
7 reasonable fear that SP members would target him in the future. See Ivanishvili,
8 433 F.3d at 341; Jian Xing Huang, 421 F.3d at 128. Having failed to meet his burden
9 of proof for asylum, Lekocaj necessarily failed to meet the higher burden for
10 withholding of removal and CAT relief. See Lecaj v. Holder, 616 F.3d 111, 119–20
11 (2d Cir. 2010).
12 Finally, Lekocaj claims that the IJ was biased, engaged in improper
13 speculation, and violated due process. Lekocaj failed to exhaust these claims by
14 raising them before the BIA. The Government claims that we lack jurisdiction to
15 consider such unexhausted claims, but the Supreme Court has since made clear
16 that § 1252(d)(1)’s “exhaustion requirement is not jurisdictional.” Santos-Zacaria
17 v. Garland, 598 U.S. 411, 423 (2023). Even so, “we have generally treated
18 § 1252(d)(1)’s issue exhaustion requirement as ‘mandatory,’” Ud Din v. Garland, 72
6 1 F.4th 411, 419 (2d Cir. 2023), and the Government has properly asserted as a
2 defense that Lekocaj failed to exhaust these arguments. We therefore decline to
3 consider them. See Lin Zhong v. U.S. Dep’t of Just., 480 F.3d 104, 123 (2d Cir. 2007)
4 (“usually . . . issues not raised to the BIA will not be examined by the reviewing
5 court”). In any event, Lekocaj’s allegations amount to a claim that the IJ did not
6 sufficiently consider his credible testimony; to the contrary, the IJ credited the
7 testimony but instead found that Lekocaj’s past experiences did not rise to the level
8 of persecution.
9 For the foregoing reasons, the petition for review is DENIED. All pending
10 motions and applications are DENIED and stays VACATED.
11 FOR THE COURT: 12 Catherine O’Hagan Wolfe, 13 Clerk of Court