17-1484 Prenga v. Sessions BIA Straus, IJ A070 449 551 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.
1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 20th day of August, two thousand eighteen. 5 6 PRESENT: 7 JOHN M. WALKER, JR., 8 BARRINGTON D. PARKER, 9 DEBRA ANN LIVINGSTON, 10 Circuit Judges. 11 _____________________________________ 12 13 GJOVALIN PRENGA, 14 Petitioner, 15 16 v. 17-1484 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Alan Michael Strauss, Franklin, 24 ME. 25 26 FOR RESPONDENT: Chad A. Readler, Acting Assistant 27 Attorney General; Leslie McKay, 28 Senior Litigation Counsel; Manuel 29 A. Palau, Trial Attorney, Office 30 of Immigration Litigation, United 31 States Department of Justice, 32 Washington, DC. 1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Gjovalin Prenga, a stateless native of
6 Albania, seeks review of an April 24, 2017, decision of the
7 BIA affirming a January 11, 2016, decision of an Immigration
8 Judge (“IJ”) finding Prenga removable and denying his
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Gjovalin
11 Prenga, No. A 070 449 551 (B.I.A. Apr. 24, 2017), aff’g No. A
12 070 449 551 (Immig. Ct. Hartford Jan. 11, 2016). We assume
13 the parties’ familiarity with the underlying facts and
14 procedural history in this case, which we reference only as
15 necessary to explain our decision to deny the petition.
16 Under the circumstances of this case, we have reviewed
17 both the IJ’s and BIA’s decisions “for the sake of
18 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
19 524, 528 (2d Cir. 2006). We review the agency’s factual
20 findings for substantial evidence and we review legal
21 questions, including the application of law to fact, de novo.
22 Lecaj v. Holder, 616 F.3d 111, 114 (2d Cir. 2010).
2 1 I. Removability
2 The Immigration and Nationality Act (“INA”) provides
3 that “[a]ny alien who at any time knowingly has encouraged,
4 induced, assisted, abetted, or aided any other alien to
5 enter or to try to enter the United States in violation of
6 law is inadmissible.” 8 U.S.C. § 1182(a)(6)(E)(i). Prenga
7 was convicted of alien smuggling pursuant to 8 U.S.C.
8 § 1324(a)(2) and was charged as removable under 8 U.S.C.
9 § 1182(a)(6)(E)(i).
10 Although Prenga initially argued that he did not
11 knowingly aid and abet an unlawful entry, he did not
12 contest his removability after his proceedings were
13 reopened, either before the IJ or on appeal to the BIA.
14 Accordingly, he has failed to exhaust any challenge to his
15 removability. Foster v. U.S. INS, 376 F.3d 75, 78 (2d Cir.
16 2004) (issues must generally be raised before the BIA in
17 order to be preserved for judicial review).
18 II. Asylum
19 The INA provides that an offense under 8 U.S.C.
20 § 1324(a)(2) is an aggravated felony, “except in the case
21 of a first offense for which the alien has affirmatively
22 shown that the alien committed the offense for the purpose
3 1 of assisting, abetting, or aiding only the alien’s spouse,
2 child, or parent (and no other individual) to violate a
3 provision of this chapter.” 8 U.S.C. § 1101(a)(43)(N).
4 Because Prenga was convicted under 8 U.S.C. § 1324(a)(2)(A)
5 for aiding and abetting the illegal entry of his cousin and
6 her friend rather than a spouse, child, or parent, the
7 aggravated felony provision applies and bars asylum. 8
8 U.S.C. § 1158(b)(2)(A)(ii), (B)(i). This aggravated felony
9 provision applies to offenses under 8 U.S.C. § 1324(a)(2)
10 without regard to whether the offense is a misdemeanor or a
11 felony. See 8 U.S.C. § 1101(a)(43)(N).
12 III. Withholding of Removal
13 An applicant for withholding of removal must show a
14 likelihood that his or her life or freedom will be
15 threatened on account of the applicant’s “race, religion,
16 nationality, membership in a particular social group, or
17 political opinion.” 8 U.S.C. § 1231(b)(3)(A). A past
18 threat to life or freedom creates a presumption of a future
19 threat. 8 C.F.R. § 1208.16(b)(1). However, this
20 presumption may be rebutted if the Government shows by a
21 “preponderance of the evidence” that “[t]here has been a
22 fundamental change in circumstances such that the
4 1 applicant’s life or freedom would not be threatened.” 8
2 C.F.R. § 1208.16(b)(1)(i)(A), (ii). The agency must
3 conduct an individualized analysis that takes into account
4 the applicant’s particular circumstances and any evidence
5 offered that contradicts country conditions reports. See
6 Lecaj, 616 F.3d at 115-16.
7 Substantial evidence supports the IJ’s conclusion that
8 there has been a fundamental change in Albania. The
9 country reports, particularly the State Department’s 2006
10 Asylum Profile, reflected a fundamental change in Albania’s
11 government since the end of the communist regime, stating
12 that there are high levels of religious tolerance and no
13 evidence of retribution against those who have returned to
14 Albania after fleeing the country during communism. See
15 Hoxhallari v. Gonzales, 468 F.3d 179, 188 (2d Cir. 2006)
16 (holding that “there is no doubt that there has been a
17 fundamental change in the political structure and
18 government of Albania, beginning in 1990”). Prenga argues
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17-1484 Prenga v. Sessions BIA Straus, IJ A070 449 551 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.
1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 20th day of August, two thousand eighteen. 5 6 PRESENT: 7 JOHN M. WALKER, JR., 8 BARRINGTON D. PARKER, 9 DEBRA ANN LIVINGSTON, 10 Circuit Judges. 11 _____________________________________ 12 13 GJOVALIN PRENGA, 14 Petitioner, 15 16 v. 17-1484 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Alan Michael Strauss, Franklin, 24 ME. 25 26 FOR RESPONDENT: Chad A. Readler, Acting Assistant 27 Attorney General; Leslie McKay, 28 Senior Litigation Counsel; Manuel 29 A. Palau, Trial Attorney, Office 30 of Immigration Litigation, United 31 States Department of Justice, 32 Washington, DC. 1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Gjovalin Prenga, a stateless native of
6 Albania, seeks review of an April 24, 2017, decision of the
7 BIA affirming a January 11, 2016, decision of an Immigration
8 Judge (“IJ”) finding Prenga removable and denying his
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Gjovalin
11 Prenga, No. A 070 449 551 (B.I.A. Apr. 24, 2017), aff’g No. A
12 070 449 551 (Immig. Ct. Hartford Jan. 11, 2016). We assume
13 the parties’ familiarity with the underlying facts and
14 procedural history in this case, which we reference only as
15 necessary to explain our decision to deny the petition.
16 Under the circumstances of this case, we have reviewed
17 both the IJ’s and BIA’s decisions “for the sake of
18 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
19 524, 528 (2d Cir. 2006). We review the agency’s factual
20 findings for substantial evidence and we review legal
21 questions, including the application of law to fact, de novo.
22 Lecaj v. Holder, 616 F.3d 111, 114 (2d Cir. 2010).
2 1 I. Removability
2 The Immigration and Nationality Act (“INA”) provides
3 that “[a]ny alien who at any time knowingly has encouraged,
4 induced, assisted, abetted, or aided any other alien to
5 enter or to try to enter the United States in violation of
6 law is inadmissible.” 8 U.S.C. § 1182(a)(6)(E)(i). Prenga
7 was convicted of alien smuggling pursuant to 8 U.S.C.
8 § 1324(a)(2) and was charged as removable under 8 U.S.C.
9 § 1182(a)(6)(E)(i).
10 Although Prenga initially argued that he did not
11 knowingly aid and abet an unlawful entry, he did not
12 contest his removability after his proceedings were
13 reopened, either before the IJ or on appeal to the BIA.
14 Accordingly, he has failed to exhaust any challenge to his
15 removability. Foster v. U.S. INS, 376 F.3d 75, 78 (2d Cir.
16 2004) (issues must generally be raised before the BIA in
17 order to be preserved for judicial review).
18 II. Asylum
19 The INA provides that an offense under 8 U.S.C.
20 § 1324(a)(2) is an aggravated felony, “except in the case
21 of a first offense for which the alien has affirmatively
22 shown that the alien committed the offense for the purpose
3 1 of assisting, abetting, or aiding only the alien’s spouse,
2 child, or parent (and no other individual) to violate a
3 provision of this chapter.” 8 U.S.C. § 1101(a)(43)(N).
4 Because Prenga was convicted under 8 U.S.C. § 1324(a)(2)(A)
5 for aiding and abetting the illegal entry of his cousin and
6 her friend rather than a spouse, child, or parent, the
7 aggravated felony provision applies and bars asylum. 8
8 U.S.C. § 1158(b)(2)(A)(ii), (B)(i). This aggravated felony
9 provision applies to offenses under 8 U.S.C. § 1324(a)(2)
10 without regard to whether the offense is a misdemeanor or a
11 felony. See 8 U.S.C. § 1101(a)(43)(N).
12 III. Withholding of Removal
13 An applicant for withholding of removal must show a
14 likelihood that his or her life or freedom will be
15 threatened on account of the applicant’s “race, religion,
16 nationality, membership in a particular social group, or
17 political opinion.” 8 U.S.C. § 1231(b)(3)(A). A past
18 threat to life or freedom creates a presumption of a future
19 threat. 8 C.F.R. § 1208.16(b)(1). However, this
20 presumption may be rebutted if the Government shows by a
21 “preponderance of the evidence” that “[t]here has been a
22 fundamental change in circumstances such that the
4 1 applicant’s life or freedom would not be threatened.” 8
2 C.F.R. § 1208.16(b)(1)(i)(A), (ii). The agency must
3 conduct an individualized analysis that takes into account
4 the applicant’s particular circumstances and any evidence
5 offered that contradicts country conditions reports. See
6 Lecaj, 616 F.3d at 115-16.
7 Substantial evidence supports the IJ’s conclusion that
8 there has been a fundamental change in Albania. The
9 country reports, particularly the State Department’s 2006
10 Asylum Profile, reflected a fundamental change in Albania’s
11 government since the end of the communist regime, stating
12 that there are high levels of religious tolerance and no
13 evidence of retribution against those who have returned to
14 Albania after fleeing the country during communism. See
15 Hoxhallari v. Gonzales, 468 F.3d 179, 188 (2d Cir. 2006)
16 (holding that “there is no doubt that there has been a
17 fundamental change in the political structure and
18 government of Albania, beginning in 1990”). Prenga argues
19 that the Government had the burden of proving that
20 conditions have fundamentally changed within the military
21 specifically. However, the country conditions reports
22 stating that the military is subject to civilian control
5 1 suggest that there has also been a fundamental change in
2 the military, and there is no evidence in the record
3 suggesting that the military continues to discriminate
4 based on religion or political opinion. Moreover, it is
5 unlikely that conditions in the military are relevant to
6 Prenga’s individual circumstances because there is no
7 evidence that he would be forced to serve in the military
8 again or that he would be targeted for escaping a military
9 prison during the communist era. See Lecaj, 616 F.3d at
10 115-16 (allowing reliance on State Department reports, as
11 long as agency also considers “any contrary or
12 countervailing evidence”).
13 IV. CAT Relief
14 An applicant for CAT relief must “establish that it is
15 more likely than not that he . . . would be tortured if
16 removed to the proposed country of removal.” 8 C.F.R.
17 §§ 1208.16(c)(2), 1208.17(a). The agency must consider
18 “all evidence relevant to the possibility of future
19 torture,” including “[e]vidence of past torture,” evidence
20 regarding the possibility of internal relocation,
21 “[e]vidence of gross, flagrant, or mass violations of human
22 rights,” and “[o]ther relevant information regarding
6 1 conditions in the country of removal.” 8 C.F.R. §
2 1208.16(c)(3)(i)-(iv). However, evidence of past torture
3 does not create a presumption that an applicant will be
4 tortured in the future. Ramsameachire v. Ashcroft, 357
5 F.3d 169, 185 (2d Cir. 2004) (“A CAT claim focuses solely
6 on the likelihood that the alien will be tortured . . .
7 regardless of the alien’s . . . past experiences. Unlike
8 an asylum claim, the CAT claim . . . requires a showing
9 with respect to future, rather than past, treatment.”).
10 Prenga argues that his past mistreatment amounted to
11 torture and that he is likely to face torture again because
12 there is no evidence that he was pardoned for his military
13 conviction and escape. However, the 2006 Asylum Profile
14 reported that the post-communist Albanian government has not
15 targeted returning Albanians who formerly opposed or fled
16 communist rule, and none of the other evidence in the record
17 contradicts this. Prenga did not submit letters from his
18 parents in Albania or other evidence that the government is
19 personally interested in him. Given the lack of evidence
20 that similarly situated individuals have been arrested or
21 mistreated, Prenga’s fear of torture is too speculative to
22 warrant relief. See Mu Xiang Lin v. U.S. Dep’t of Justice,
7 1 432 F.3d 156, 160 (2d Cir. 2005) (petitioner must establish
2 that someone in his particular circumstances would more
3 likely than not face torture); cf. Jian Xing Huang v. U.S.
4 INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In the absence of
5 solid support in the record for [petitioner’s] assertion that
6 he will be subjected to [future harm], his fear is speculative at
7 best.”).
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, Prenga’s motion to
10 stay removal is DENIED as moot. Petitioner’s pending request
11 for oral argument is DENIED in accordance with Federal Rule
12 of Appellate Procedure 34(a)(2), and Second Circuit Local
13 Rule 34.1(b).
14 FOR THE COURT: 15 Catherine O’Hagan Wolfe, Clerk