Opinion
No. 07-1635-ag NAC.
February 4, 2008.
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED, that the petition for review of the Board of Immigration Appeals ("BIA") decision is DENIED.
FOR PETITIONER: Glenn L. Formica, New Haven, Connecticut. FOR RESPONDENT: Peter D. Keisler, Assistant Attorney General; Michelle Gorden Latour, Assistant Director; Jamie M. Dowd, Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C.
HON. ROBERT D. SACK, HON. SONIA SOTOMAYOR, HON. PETER W. HALL, Circuit Judges.
Enver Selmani, a citizen of Macedonia, seeks review of a March 26, 2007 order of the BIA affirming the August 29, 2005 decision of Immigration Judge ("IJ") Michael W. Strauss, which denied his applications for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). In re Enver Selmani, No. A98 399 421 (B.I.A. Mar. 26, 2007), aff'g No. A98 399 421 (Immig. Ct. Hartford, Conn. Aug. 29, 2005). We assume the parties' familiarity with the underlying facts and procedural history in this case.
This Court reviews the agency's factual findings, including adverse credibility determinations, under the substantial evidence standard. See, e.g., Dong Gao v. BIA, 482 F.3d 122, 126 (2d Cir. 2007).
The BIA erred in relying on our opinion in Ai Feng Yuan v. U.S. Dep't of Justice, 416 F.3d 192, 198 (2d Cir. 2005), overruled in part on other grounds by Shi Liang Lin v. U.S. Dep't of Justice, 494 F.3d 296, 305 (2d Cir. 2007)), for the proposition that the "single incident" of "detention and beating" that Selmani described was "insufficient to establish `past persecution' as a matter of law." In Beskovic v. Gonzales, 467 F.3d 223 (2d Cir. 2006), we expressly rejected the application of Ai Feng Yuan to claims such as Selmani's, and held that such claims must be addressed in context. See Beskovic, 467 F.3d at 226 n. 3. We cautioned the agency to be "keenly sensitive to the fact that a `minor beating' . . . may rise to the level of persecution if it occurred in the context of an arrest or detention on the basis of a protected ground." ld. Selmani testified that Macedonian police detained him because, having identified him as an ethnic Albanian, they believed he was a member of the UCK, an anti-government guerilla group, and that when they beat him they stated that because he was Albanian, Macedonia was not "your place to be." Beskovic, 467 F.3d at 226. To the extent that such mistreatment appears to have occurred in detention and on account of a protected ground, remand to the BIA for further consideration in light of our holding in Beskovic might be warranted. See Gjolaj v. Bureau of Citizenship and Immigration Services, 468 F.3d 140, 144 (2d Cir. 2006) (remanding where the IJ "appear[ed] to have applied a more restrictive standard than the one we identified in Beskovic" in assessing applicant's past persecution claim).
The BIA here, however, did not address the IJ's adverse credibility determination but did affirm the IJ's determination that Selmani had not presented a well-founded fear of future persecution. The IJ's determination had been made in the context of concluding that the DHS had met its burden of proving fundamentally changed country conditions such that a fear of future persecution for returning Albanians was no longer well-founded. Because of this alternative holding and the BIA's citation to our holding in Ajdin v. Bureau of Citizenship and Immigration Services, 437 F.3d 261 (2d Cir. 2006), we can confidently predict that the agency would deny Selmani relief even if its application of the wrong legal standard to Selmani's claim of past persecution was corrected. See Xiao Ji Chen v. U.S. Dep't of Justice, 434 F.3d 144, 161 (2d Cir. 2005) (noting that "a petition challenging a rejection of an asylum claim [may] be denied despite errors committed by the IJ" when "the IJ explicitly relies on a valid alternative ground for denying relief that is not tainted by error"); see also id. at 162 ("The overarching test for deeming a remand futile . . . is when the reviewing court can `confidently predict' that the [BIA] would reach the same decision absent the errors that were made." (citing Cao He Lin v. U.S. Dep't of Justice, 428 F.3d 391, 395 (2d Cir. 2005))).
For the foregoing reasons, the petition for review is DENIED. The pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(d)(1). This summary order supersedes the summary order filed on January 29, 2008.