Luke Nue v. Eric Holder, Jr.

408 F. App'x 924
CourtCourt of Appeals for the Sixth Circuit
DecidedJanuary 27, 2011
Docket09-3407
StatusUnpublished
Cited by1 cases

This text of 408 F. App'x 924 (Luke Nue 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.

Bluebook
Luke Nue v. Eric Holder, Jr., 408 F. App'x 924 (6th Cir. 2011).

Opinion

THOMAS L. LUDINGTON, District Judge.

Petitioner, Luke Nue (“Nue”) contends that the Board of Immigration Appeals (“BIA”) erred in affirming the immigration judge’s decision denying Nue’s application for asylum under 8 U.S.C. § 1158 (2006) and rejecting her separate claim that she qualifies for withholding of removal under 8 U.S.C. § 1231(b)(3)(A) (2006). The BIA found that Nue’s circumstances did not warrant a rebuttable presumption of future persecution based on past persecution and that Nue’s fear of future persecution was not well-founded because a fundamental change in circumstances had occurred in Serbia. We AFFIRM.

I.

Nue originally left Kosovo in 1998 because of the war between Kosovo and the former Yugoslavia, during which Serbians sought to cleanse Kosovo of ethnic Kosovar-Albanians. A native and citizen of the former Yugoslavia, Nue considers herself a Kosovar-Albanian. Nue’s second husband, Pjeter Preqaj, an ethnic Albanian, disappeared during the crisis in Kosovo while traveling between Nue’s village and the neighboring town of Gramaqel in May 1998. Following her husband’s disappearance, Nue searched the road to Gramaqel but found no trace of him or his traveling companion. Nue inquired into the whereabouts of her husband for approximately two months, but was unable to locate him. Nue believes that the Serbian army abducted and killed her husband despite a lack of witnesses to Pjeter’s disappearance.

When the main Serbian offensive began in June 1998, Nue and her family were forced to hide from the Serbian forces in a garage. After many days, Serbian forces attacked and set fire to the garage. This forced Nue to flee first to her house and then to her mother’s house in Gjakova. The Serbian troops soon attacked that city as well. Nue alleges she was constantly harassed and threatened by Serbian troops while they occupied Gjakova. It was during this time that Nue also alleges that Serbian troops entered her mother’s home, threatened them at gunpoint to leave the area, and then raped Nue in front of her mother.

After the North Atlantic Treaty Organization (“NATO”) bombings of Serbian positions, the violence between the Serbian troops and the Kosovar-Albanians, who the Serbian troops blamed for the bombings, escalated. Nue alleges that after the NATO bombings, Serbian troops threw knives at her and her mother without cause. Despite the threat of violence, Nue was secretly supporting the Kosovo Liber *926 ation Army (“KLA”) forces around Gjakova, and at one point was confronted by Serbian forces on her return from a KLA base. Nue was held at gunpoint while her mother, an ethnic Serbian, pled with the troops to spare Nue’s life.

When the war ended, Nue returned to her home only to find it destroyed. At this time, Nue also alleges she faced persecution by the KLA who accused her of being a Serbian sympathizer based on her partial Serbian ethnicity. On one occasion, KLA soldiers came heavily armed to her mother’s home, where Nue was residing, and lined up her family, holding them at gunpoint and accusing them of hiding Serbians. This detention lasted approximately fifteen minutes while the KLA troops searched Nue’s mother’s home.

Nue subsequently obtained a tourist visa, entered the United States in March 2002, and sought asylum in September of the same year. In her asylum application, Nue alleged that she feared persecution in Kosovo and Serbia by Albanian zealots on account of her mixed Serbian-Albanian ethnicity and Catholic religion. Nue alleged that members of the KLA repeatedly accused her and her family of being terrorists, confronted her at her home regarding the accusations, and that her brother had been detained and interrogated by KLA members in August 2002. Her brother, who remained in Kosovo, informed her that he had been harassed and verbally threatened by KLA members and Albanian extremists who were allegedly aware of their family’s mixed ethnicity. Nue stated her fear of persecution as a non-Muslim was justified because Catholic churches had been damaged in the war and discrimination against non-Muslims persisted.

The Department of Homeland Security reviewed Nue’s asylum claim and issued a letter on October 4, 2004, informing her that her asylum application would be referred to an immigration judge because she did not demonstrate that any harm she had suffered rose to the level of persecution or that her fear of future persecution was well-founded. Nue advanced two grounds for her request for relief and protection in her subsequent affidavits, testimony, and other evidence in support of her application. First, Nue alleged a fear of harm by the Serbian military on account of her Albanian ethnicity, and second, she claimed a fear of harm by Albanian extremists on account of her Serbian ethnicity.

In 2006, the United States Department of State Country Reports on Human Rights Practices (hereinafter “State Department Country Reports”) noted that there were no reports that “the government or its agents committed arbitrary or unlawful killings” and that many displaced Serbians and Albanians had begun returning to Kosovo and Serbia. Reports of discrimination, violence, and crimes directed at minorities and their properties have decreased since 2005, but official and societal discrimination still persist. The international police unit 1 has also made efforts to investigate reports of violence against Kosovo-Serbians. Additionally, Nue’s mother and two brothers returned to Kosovo after the war and have resided there for years unharmed.

An immigration judge denied Nue’s application for relief and protection on April 19, 2007, concluding that Nue did not testify credibly in support of her claims and did not demonstrate that she had been perse *927 cuted in the past. The immigration judge held alternatively that, even if Nue had credibly established past persecution, she was ineligible for asylum because the circumstances in Kosovo had changed, reducing the basis for Nue’s fear of persecution on account of her ethnicity or any other protected ground. The immigration judge noted that, according to the State Department Country Reports’ profile and other record evidence, the war ended after NATO’s intervention and the country’s administration was placed under NATO’s control. Furthermore, many displaced persons had returned to Kosovo, indicating that internal relocation was feasible and that, despite continuing ethnic problems and discrimination in Kosovo, there was no longer persecution of ethnic Albanians, Serbians, or Catholics. The immigration judge also took into account Nue’s mother and two brothers’ return to Kosovo without harm and found that, as a former KLA supporter, Kosovar-Albanians would likely welcome Nue’s return. Nue was also ineligible for CAT protection because, even though rape could be viewed as torture, the immigration judge found that Nue had not credibly shown that she was the victim of rape or that there was a clear probability that she would be tortured by, or with the acquiescence of, the Serbian government upon returning to Kosovo or Serbia.

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408 F. App'x 924, Counsel Stack Legal Research, https://law.counselstack.com/opinion/luke-nue-v-eric-holder-jr-ca6-2011.