Vasil Bajraktari v. Attorney General United States of America

• Court: Court of Appeals for the Third Circuit
• Decided: September 18, 2024
• Docket: 24-1231
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 24-1231 ___________

VASIL BAJRAKTARI, Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA ____________________________________

On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A240-087-169) Immigration Judge: Adam Panopoulos ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) September 12, 2024

Before: KRAUSE, MATEY, and CHUNG, Circuit Judges

(Opinion filed: September 18, 2024) ___________

OPINION * ___________

PER CURIAM

Vasil Bajraktari petitions for review of the BIA’s order dismissing his appeal. For

the reasons that follow, we will deny the petition for review.

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Bajraktari, a citizen of Albania, entered the United States in 2009 as a

nonimmigrant visitor. In 2023, he was charged as removable for overstaying his

admission period. Represented by counsel, Bajraktari conceded removability and applied

for asylum, withholding of removal, and relief under the Convention Against Torture

(CAT). After a hearing, an Immigration Judge (IJ) denied relief. The IJ determined that

(1) Bajraktari’s asylum application was untimely; (2) he was not eligible for asylum or

withholding of removal because there were serious reasons to believe he committed a

serious nonpolitical crime (collaboration in the prostitution of a minor in Italy); and (3)

he was not entitled to deferral of removal under the CAT. Bajraktari filed a counseled

appeal to the Board of Immigration Appeals (BIA). The BIA dismissed the appeal,

agreeing with the IJ that Bajraktari was not eligible for asylum or withholding of removal

and not entitled to deferral of removal under the CAT. Bajraktari filed a pro se petition

for review.

We first address Bajraktari’s challenge to the BIA’s determination that he was

ineligible for asylum or withholding of removal. 1 If there are serious reasons to believe

that a noncitizen has committed a serious nonpolitical crime before his arrival in the

United States, the noncitizen is not eligible for asylum or withholding of removal. See 8

U.S.C. § 1158(b)(2)(A)(iii) (asylum); 8 U.S.C. § 1231(b)(3)(B)(iii) (withholding). The

BIA affirmed the IJ’s determination that there were serious reasons to believe that

Bajraktari had committed such a crime.

1 We have jurisdiction pursuant to 8 U.S.C. § 1252. 2 Bajraktari does not dispute the IJ’s determination that he was convicted in absentia

by an Italian court of, inter alia, collaboration in and gaining the proceeds from the

prostitution of a minor. Bajraktari stated in his asylum application that the conviction

was “transferred” to Albania. Represented by counsel, Bajraktari challenged the

conviction in Albania. An Albanian court recognized the conviction, and Bajraktari

appealed. An Albanian appellate court upheld the conviction but reduced the sentence

from eight to seven years in prison.

Bajraktari does not argue that his conviction is not a serious nonpolitical crime.

Rather, he contends that the conviction is not sufficient because he was convicted in

absentia. In support, he cites a case, In re Piraino, 12 I. & N. Dec. 508, 512 (BIA 1967),

which involved excludability, not removability, and weaker in-absentia evidence. The

BIA in Piraino determined that the Government had not established by clear,

unequivocal, and convincing evidence that Piraino was excludable at the time of entry for

having committed a crime involving moral turpitude. Id. There, the Government

submitted an order of arrest from another country entered in absentia after the noncitizen

had entered the United States. Id. The BIA noted that, under the law at the time, an in-

absentia conviction could not be the basis for a finding of excludability or deportability

based on a conviction. Id. at 511-12. Thus, it concluded that an in-absentia order of

arrest was not enough to carry the Government’s high burden. Id. The decision did not

at all address removability.

Here, Bajraktari did not contest that the Government had met its burden of

establishing that he is removable. Rather, he applied for relief from removal, and, as

3 discussed below, once the Government showed that the evidence indicated that a ground

for mandatory denial of relief may apply, i.e., that Bajraktari had committed a serious

nonpolitical crime, the burden was on Bajraktari to prove by a preponderance of evidence

that the ground did not apply. The Government had a higher burden of proof in Piraino

and submitted weaker evidence. Piraino is distinguishable.

Bajraktari also contends that the burden should not have shifted to him to

demonstrate that the reasons were not serious for believing he had committed the offense.

Considering the weight of the evidence submitted by the Government, the IJ did not err in

shifting the burden to Bajraktari. See 8 C.F.R. § 1240.8(d) (providing that “[i]f the

evidence indicates that one or more of the grounds for mandatory denial of the

application for relief may apply, the [noncitizen] shall have the burden of proving by a

preponderance of the evidence that such grounds do not apply”). Given that both the

Italian courts and the Albanian courts have upheld the conviction, the BIA did not err in

determining that there are serious reasons to believe that Bajraktari has committed a

serious nonpolitical crime.

We turn now to his challenge to the denial of his application for deferral of

removal under the CAT. 2 To be eligible for such relief, Bajraktari needed to

demonstrate, inter alia, that it is more likely than not that he would be tortured if removed

to Albania. See 8 C.F.R. §§ 1208.16(c)(2), 1208.17(a). In evaluating a CAT claim, the

agency must first determine whether it is more likely than not that the applicant would be

2 Because we agree that he is not eligible for asylum, we need not address whether Bajraktari’s application for asylum was timely filed. 4 tortured if removed. This question involves both a factual finding of what is likely to

happen to the applicant and the legal question of whether it constitutes torture. Quinteros

v. Att’y Gen., 945 F.3d 772, 786-87 (3d Cir. 2019). We review the agency’s factual

findings for substantial evidence. Thus, its findings “are conclusive unless any

reasonable adjudicator would be compelled to conclude to the contrary.” Nasrallah v.

Barr, 590 U.S. 573, 584 (2020) (quoting 8 U.S.C. § 1252(b)(4)(B)).

Bajraktari asserts that a government official named Afrim Qendo (Afrim) will try

to harm him if he is removed to Albania due to Bajraktari’s ownership of certain

properties and his resistance to Afrim’s alleged criminal acts. He describes various

actions allegedly taken by Afrim over two decades. First, he claims that a 1998 attack on

Bajraktari that required hospitalization was ordered by Afrim who was chief of police at

the time. Eight years later, in 2006, another man, Gzim Gjeci beat Bajraktari while a

police officer held him at gunpoint. Bajraktari states that he later heard a rumor that

Gzim was connected to Afrim. In 2008, Afrim, who was then chief inspector, tried to

demolish Bajraktari’s property. And, in 2012, Afrim, in his position as Director of the

Albanian Road Authority, allegedly filed two complaints against Bajraktari for money

laundering. At the time of the hearing before the IJ, Afrim was a Prefect for Tirana,

Albania.

The IJ concluded that there was no evidence that the 1998 assault was connected

to Bajraktari’s later issues. The IJ observed that since 2009, no one has threatened him or

asked family members about him. His brother co-owns and operates the family’s

business, and his mother still owns one of the properties at issue. The IJ found that Gzim,

5 the previous owner of the property who assaulted Bajraktari in 2006, was not likely to

harm him. He also found that the 2006 assault did not rise to the level of torture, and that

Bajraktari could relocate to his hometown. The BIA affirmed the denial of deferral of

removal for the reasons stated by the IJ. Bajraktari has not shown that the record

compels a finding that anyone in Albania is interested in harming him. He offers no

evidence, besides his own speculation, that Afrim was involved in the 1998 and 2006

assaults. 3

Bajraktari also asserts that his son was hit by a car and argues that Afrim was

trying to murder his son and send him a message that he has not forgotten him. He does

not state when his son was injured or provide any support for his belief that Afrim was

involved. He also claims that another son was arrested by the prime minister of Albania

for not standing up and greeting the prime minister and Afrim. These incidents were not

mentioned in his brief before the BIA or before the IJ. We may not consider these

incidents because we may decide a petition for review based only on the administrative

record. See 8 U.S.C. § 1252(b)(4)(A).

For the above reasons, we will deny the petition for review.

3 Before the IJ, Bajraktari did not testify that he believed that Afrim was involved in the 1998 attack. While he did testify that he believed that Afrim paid for him to be assaulted in 2006 because Bajraktari had won a court case against him, he offered no other details or evidence to support that allegation. 6