Radoniqi v. Attorney General of the United States

417 F. App'x 210
CourtCourt of Appeals for the Third Circuit
DecidedMarch 16, 2011
DocketNo. 09-4368
StatusPublished

This text of 417 F. App'x 210 (Radoniqi v. Attorney General of the United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Radoniqi v. Attorney General of the United States, 417 F. App'x 210 (3d Cir. 2011).

Opinion

OPINION

PER CURIAM.

Samir Radoniqi petitions for review of a final order of removal entered by the Board of Immigration Appeals (“BIA”). We will deny the petition for review.

[211]*211i.

In 2005, Radoniqi entered the United States on a non-immigrant visa as a business visitor. Although he entered as a citizen of Serbia and Montenegro, he hails from the city of Peje, in what it is now the nation of Kosovo. Radoniqi overstayed his visa, and the Department of Homeland Security served a Notice to Appear. Radoniqi conceded his removability for overstaying, and he sought asylum, withholding of removal, and Convention Against Torture (“CAT”) relief. Radoniqi, presently age thirty-three, claims that he suffered past persecution, both before and after the 1998-99 war in Kosovo, and that he fears future persecution if returned to Kosovo.

Radoniqi alleges that Serbian police officers assaulted him approximately eleven times between 1995 and 1998, usually at checkpoints as he traveled by bus to school. The assaults resulted in minor injuries, although on one occasion Radoniqi suffered broken ribs, and on a second occasion he suffered injury to his upper leg. Radoniqi claims mixed Albanian and Bosnian ethnicity, and he contends that he was assaulted due to his Albanian ethnicity.

In early 1999, shortly after the commencement of NATO bombing, the police forced Radoniqi and his family to leave their home in Peje, compelling them to relocate to Montenegro for several months. Upon return to Peje after the war ended in July 1999, Radoniqi discovered that the family home had been burned.

In 2002, Radoniqi joined the Democratic League of Kosovo (“LDK”), a political party for which he distributed leaflets, provided financial support, and helped organize meetings. He also worked for various non-governmental organizations (“NGOs”) after the war, including an NGO that found foster homes for abandoned children. Radoniqi claims that he began receiving threatening letters and phone calls from “Albanian extremists,” who labeled him a traitor and demanded that he cease his LDK activities and NGO work. In particular, he was harassed beginning in January 2005 by a man named Muharem Berisha, a member of a rival political party who viewed Radoniqi as a Serb sympathizer. Berisha and his associates threatened and assaulted Radoniqi on several occasions in 2005. After the most serious incident, in which Radoniqi was beaten and hospitalized overnight, Berisha was convicted of assault and sentenced to three months in prison.

Radoniqi continued to receive threats from Berisha and his associates. He then procured his visa to enter the United States and decided to seek asylum. (Radoniqi had previously visited the United States in 2004 as a tourist but returned home.) Radoniqi’s father continued to receive threats from Berisha after Radoniqi departed. Radoniqi fears that he will be harmed by Albanian extremists if he returns to Kosovo.

The Immigration Judge (“IJ”) assumed the credibility of Radoniqi’s testimony and denied relief. The IJ explained that Radoniqi “has described, really, two different worlds in which he has lived,” the first being “pre-war in Kosovo with the Serbs in power and the Albanians were oppressed,” and the second “after this war where he was able to become a member of a political party that was in a majority when he was there and to obtain various jobs working for [NGOs].” A.R. at 20-21. As to the pre-war events, the IJ concluded that, even if those events amounted to persecution, they do not support a presumption of a well-founded fear of future persecution because Radoniqi’s fear of returning to Kosovo is unrelated the harm that he suffered before the war. As to the postwar events, the IJ concluded that those events did not amount to persecu[212]*212tion, and, further, that Radoniqi can relocate to another area to avoid future harm from Albanian extremists. The IJ ordered removal to Kosovo.

The BIA dismissed Radoniqi’s appeal. It agreed with the IJ that, because Radoniqi’s current fear of Albanian extremists is unrelated to the alleged incidents of past persecution by Serbian police, he cannot benefit from a presumption of future persecution. The BIA concluded that the post-war events did not rise to the level of past persecution because Radoniqi failed to show that he was mistreated by the government or by forces that the government was unable or unwilling to control. As to future persecution, the BIA noted that Radoniqi failed on appeal to challenge the finding that he can relocate to avoid future contact with Berisha or other extremists, and he failed to show that relocating to a safe area in Kosovo would be unreasonable. The BIA also determined that Radoniqi’s account of being beaten by Serbian police and displaced from his home does not warrant a humanitarian grant of asylum in the exercise of discretion. Finally, the BIA concluded that Radoniqi failed to satisfy his burden for withholding of removal, and it denied CAT relief because Radoniqi failed to show that it is more likely than not that he would be tortured in Kosovo. Radoniqi timely filed a petition for review.

II.

We have jurisdiction under 8 U.S.C. § 1252(a)(1). Where, as here, the BIA issues a decision on the merits, we review the BIA’s decision, although we will look to the IJ’s analysis to the extent that the BIA deferred to or adopted it. See Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006). “We apply substantial evidence review to agency findings of fact, departing from factual findings only where a reasonable adjudicator would be compelled to arrive at a contrary conclusion.” Mendez-Reyes v. Att’y Gen., 428 F.3d 187, 191 (3d Cir.2005). We “uphold the findings of the BIA to the extent that they are supported by reasonable, substantial and probative evidence on the record considered as a whole[.]” Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d Cir.2003).

Radoniqi raises four arguments before this Court, which we will address in the order presented in his brief. First, he contends that the IJ and the BIA erred in failing to make an explicit determination regarding the credibility of his testimony. The BIA, like the IJ, assumed the credibility of Radoniqi’s testimony and denied relief. That approach was perfectly acceptable in this case. Indeed, Radoniqi himself argued in his brief to the BIA that, because the IJ had deemed his testimony credible, the BIA “must accept the testimony as true.” A.R. at 36. Radoniqi has shown no prejudice from the BIA’s doing so, and we are satisfied that “the absence of a finding on credibility is not significant to the disposition of the case.” Kayembe, 334 F.3d at 235.

Second, Radoniqi contends that the IJ and the BIA erred by separating the evidence supporting his claim of past persecution along the lines of pre-war and post-war events. He argues that his experiences, both before and after the war, should have been considered in the aggregate to assess whether the harm suffered rose to the level of persecution. The record fails to support this argument.

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