Petition for Writ of Certiorari — Gegaj v. Mukasey (No. 08-157)

ENA srs 2 OR Rt ea i i ne ean eam ama a

Supreme S.

, erreur, U.S

(\) 08-157 AUG 1- 2008

No. — OFFICE OF THE CLERK

yor

| Sn the

Supreme Court of the Gnited States

MARK GEGAJ,

Petitioner,

Vv.

MICHAEL MUKASEY, UNITED States ATTORNEY GENERAL,

Respondent.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Second Circuit

PETITION FOR WRIT OF CERTIORARI

CHARLES CHRISTOPHE

Counsel of Record

CHRISTOPHE & ASSOCIATES, P.C.

2 WALL STREET, 8™ FLOOR

New York, New YorkK 10005

(212) 344-3800

Counsel for Petitioner

August 1], 2008

Becker Gallagher + Cincinnati, OH - Washington, D.C. - 800.890.5001

4

QUESTION PRESENTED

Petitioner, Mark Gegaj asks that this Court issue

a writ of certiorari to resolve the United States Courts

of Appeals inconsistent treatment and usage of

Department of State Country Reports, as reflected in

the judgment of the Court of Appeals for the Second

Circuit.

il

TABLE OF CONTENTS

MUPEOPEMOPES PUCMGEGING TOL) 2... ewes

8 ls

hp 80s

CITATION TO OPINIONS BELOW ...........

STATEMENT OF JURISDICTION ............

CONSTITUTIONAL AND STATUTORY

re lg ss 5 G56 4s ov Ow os

I. STATEMENT OF THE CASE ..............

Il. SUMMARY OF THE ARGUMENT ..........

Il. ARGUMENT IN SUPPORT OF PETITION ...

A. The Court of Appeals for the Second Circuit

Abrogated Petitioner’s Rights to a Full and

Fair Hearing by Relying on the findings of

Hoxhallariv. Gonzales, to Establish Country

Saeed SE LG, «Ww ee

1. Department of State Country Reports on

Human Rights Practices are insufficient

to conclusively rebut a claim of a well-

founded fear of future persecution.

ili

2. The Federal Circuit Courts of Appeals

are not in agreement as to the probative

value of Department of State Reports as

applicable in the context of

asylum/removal proceedings, thus

presenting a federal question reviewable

B. The probative value accorded to and the

consideration of the Department of State

Country Report on Albania by the Court of

Appeals for the Second Circuit as a basis to

discredit Petitioner’s claim of a well-founded

fear of future persecution, was inappropriate

and violative of the Fifth Amendment. ...

1. The dissention amongst the Circuit

Courts of Appeals as to the probative

weight of Department of State country

reports has resulted in_ differing

evidentiary burdens for similarly situated

aliens in contravention of their Fifth

Amendment right to due process. .....

2. The Court of Appeals for the Second

Circuit based its decision on a

Department of State Country Report

issued subsequent to the close of the

record in the proceedings under review in

contravention of the Due _ Process

guarantees set forth in the Fifth

A ere eee ee re

aE ot Sa wks ek Ele ee ea

11

18

18

APPENDIX

Appendix A: May 7, 2008 Second Circuit Order

denying petition for rehearing ............. la

Appendix B: February 1, 2008 Second Circuit

gs a Sed ws gy ae oa Bae 3a

Appendix C: June 29, 2007 Decision of the

Board of Immigration Appeals ............ 9a

Appendix D: January 4, 2006 Second Circuit

Peer eee re CE oe re re ee 12a

Appendix E: February 26, 2004 Decision of the

Board of Immigration Appeals ........... 18a

sf

TABLE OF AUTHORITIES

CASES

Abankwah v. INS, 185 F.3d 18 (2d Cir. 1999) .... 5

Adjin v. Bureau of Citizenship and Immigration

Services,

437 F.3d 261 (2d Cir. 2006) ........ eure hes 22

Ali v. Ashcroft, 394 F.3d 780 (9th Cir. 2005) .... 12

Alvarez-Flores v. INS, 909 F.2d 1 (1st Cir. 1990) . 5

Asasni v. INS, 154 F.3d 719 (7th Cir. 1998) ..... 6

Awale v. Ashcroft, 384 F.3d 527 (8th Cir. 2004) . 13

Berishaj v. Ashcroft, 378 F.3d 314 (3d Cir. 2004) 13

Bridges v. Wixon, 326 U.S. 1385 (1945) ......... 19

Brucay v. Ashcroft, 381 F.3d 602 (7th Cir. 2004) . 14

Castillo-Villagra v. INS,

$72 F.2d 1017 (Sth Oir. 1992) ............- 22

Cordero-Trejo v. INS, 40 F.3d 482 (1st Cir. 1994) . 6

De la Llana-Castellon v. INS,

16 F.3d 1093 (10 Cir. 1994) .............. 22

Del Carmen Mr. Gegajna v. INS,

170 F.3d 1247 (Sth Cir. 1999) ............. 12

vl

Diab v. Ashcroft, 397 F.3d 35 (1st Cir. 2005) .... 19

Duarte de Guinac v. INS,

179 F.3d 1166 (Sth Cir. 1999) ............. 12

Ezeagwuna v. Ashcroft,

320 © .a0 S06 (Sd Cir, 2003) ... 2. cw ec cece ee. 9

Galina v. INS, 213 F.3d 955 (7th Cir. 2000) ..... 9

Gonahasa v. INS, 181 F.3d 538 (4th Cir. 1999)... 11

Gramatikov v. INS,

128 F.3d 619 (7th Cir. 1997) ............ 7,10

Guevara-Flores v. INS,

100 © .20 i2éc (6th Cir. 1986) ...... 2... 0 ee. 5

Harisiades v. Shaughnessy, 342 U.S. 580 (1952). 19

He Chun Chen v. Ashcroft,

ore fae 210 (oe Um. Z00@) .. . ec ee es 9

Hoxhallari v. Mukasey,

465 F.3d 179 (2d Cir. 2006) ............ 10, 16

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) ... 19

INS v. Cardoza-Fonseca,

767 F.2d 1448 (Sth Cir. 1986) .............. 5

Koliada v. INS, 259 F.3d 482 (6th Cir. 2001) .. 8,9

Kratchmarov v. Heston,

bY F.20 Gol (eth Car. 1908) 2. ww ce ees 5

Leiva-Montalvo v. INS,

173 F.3d 749 (9th Cir. 1999) .............. 11

Li v. Attorney General of the U.S.,

400 F.3d 157 (8d Cir. 2005) ...........2005. 5

Matter of Acosta, 19 I&N Dec. 211 (BIA 1985) ... 5

Matter of A-E-M-, 21 I&N Dec. 1157 (BIA 1998) .. 7

Matter of R-S-H. et al.,

23 I&N Dec. 629 (BIA 2003) ............... 7

Matter of V-T-S-, 21 I&N Dec. 792 (BIA 1997) ... 7

Mece v. Gonzales, 415 F.3d 562 (6th Cir. 2005) ... 8

Melgar de Torres v. Reno,

101 F.3d 307 (2d Cir. 1999) .... 6. cece. 5

Mthaylouv v. Ashcroft, 379 F.3d 15 (1st Cir. 2004) 15

Montoya-Ulloa v. INS,

70 Foe Gee Coe Cir, 1986) . woo eens 5

Mr. Gegajna-Estrada v. INS,

293 F.3d 1089 (9th Cir. 2002) ............. 12

Ng Fung Ho v. White, 259 U.S. 276 (1922) ..... 19

Palma-Mazariegos v. Gonzales,

428 F.3a30 (1st Cir. 2005) ............ 16, 17

Ramsameachire v. Ashcroft,

got F .co 100 (2a Cir, 2006)... 2. 2 ee es 4,5

Vill

Reno v. Flores, 507 U.S. 292 (1993) ........... 18

Snyder v. Massachusetts, 291 U.S. 97 (19384) .... 19

Tian-Yong Chen v. INS,

359 F.3d 121 (2d Cir. 2004) ........... 5, 8,17

Waweru v. Gonzales,

437 F.3d 199 ist Cir. 2006) ........3%. 15, 16

Wong Yang Sung v. McGrath,

Se OE ee ee evs hn so ee eee 18

Yang v. McElroy, 277 F.3d 158 (2d Cir. 2002) .... 6

Zarouite v. Gonzales,

424 F.3d GO (ist Cir. 2005) ........60%. 15, 16

Zheng v. Gonzales, 409 F.3d 804 (7th Cir. 2005) .. 9

STATUTES

PRR Se ey) 4, a er rere ras 19

eR OIE 58k Ss Hs eae A el ee 1

Sper 6k 5 bo ee 4

REGULATIONS

Ete MR eee rr ee 7

eee ee ee |) ae 6,19

8 C.F.R. § 208.13(b)(1)G)(A) & (B) . 2... 6 eee 6

re ee sos 0 so eo a 6,19

Ol oe we ES 9k ee A od ey ee eee 7

ar ee Oe RN oe ee ee eee eae eee 19

S CLP a. G EMOO- BMA) 6 vce h hea eee ceenes 19

ix

we 8) 6, 19

8 C.F.R. § 1208.13(b)C1)G)(A) &(B) 2... ee ee eee 6

1

CITATION TO OPINIONS BELOW

The decision of the United States Court of Appeals

for the Second Circuit, Gegaj v. Mukasey, Docket No.,

07-3029, is attached to this petition as Appendix A at

la and Appendix B at 3a. The agency opinions issued

by the Board of Immigration Appeals, Jn re Mark

Gegaj, No. A 95 146 530 (BIA June 29, 2007; BIA

February 26, 2004), are attached hereto as Appendix

C at 9a and Appendix D at 12a.

STATEMENT OF JURISDICTION

The Court of Appeals for the Second Circuit entered

ils judgment denying the timely submitted petition for

rehearing on May 7, 2008. The mandate was

subsequently issued by the Second Circuit on May 14,

2008. The Court of Appeals denied Mr. Gegaj’s timely

petition for review of the decision of the Board of

Immigration Appeals on February 1, 2008. The order

denying review of the agency appeal is attached hereto

as Appendix B, App. 3a. This Honorable Court’s

jurisdiction is hereby invoked pursuant to 28 U.S.C.

§1254, as the decisions below served to deprive Mr.

Gegaj of his rights as granted under the Constitution

of the United States.

CONSTITUTIONAL AND

STATUTORY PROVISIONS

Central to the matter sub judice are the Fifth

Amendment rights granted to aliens seeking relief

from the Courts of the United States, which

Amendment states, in pertinent part, that “No

2

person...shall be deprived of life, liberty, or property,

without due process of law.”

I. STATEMENT OF THE CASE

The gravamen of the instant petition lies in the

Courts of Appeals’ inconsistent use and treatment of

Country reports furnished by the United States

Department of State. Such inconsistency is evident in

the Court of Appeals for the Second Circuit’s decision

in the matter at bar, which decision is in contravention

of its own precedent. The Court of Appeals’ decision is

therefore arbitrary, capricious, and a clear violation of

Mr. Gegaj’s Fifth Amendment rights. The decision

below also exposes Mr. Gegaj to the certainty of cruel

and unusual punishment upon his return to Albania,

in violation of the Eighth Amendment. A concise

statement of the case’s history and underlying facts is

herein provided so as to set forth the grave

repercussions of the decision below.

Petitioner appeared before the Honorable Douglas

'B. Schoppert for a hearing on the merits of his

applications. On October 3, 2002, the IJ denied

Petitioner’s request for asylum pursuant to §208 of the

Immigration and Nationality Act (hereinafter “INA”),

withholding of removal pursuant to INA § 241(b)(3),

and withholding of removal under Article III of the

Convention Against Torture. Petitioner appealed the

I.J’s decision to the BIA. Through an order dated

February 26, 2004, the BIA affirmed the IJ’s opinion,

thereby dismissing Petitioner’s appeal. (JA 165-166).

See Appendix D, App. 12a.

3

Petitioner later filed a motion to reopen his

proceedings based on previously unavailable material

evidence, and changed country conditions since the

time of the original hearing. The BIA denied the

motion to reopen through its decision dated June 29,

2007. See Appendix C, App. Ya.

Petitioner subsequently appealed the BIA’s decision

to Court of Appeals for the Second Circuit. Petitioner

argued that he presented testimony sufficient to meet

the standard for a showing of past persecution, as well

as a_reasonable, well-founded fear of future

persecution. Petitioner argued that the past

persecution he suffered at the hands of the communist

sympathizers as a result of his political opinion would

undoubtedly resume were he forced to return to

Albania. On February 1, 2008, the Court of Appeals

for the Second Circuit denied Petitioner’s appeal for

review of the BIA’s decision. See Appendix B, App. 3a.

Petitioner then filed a Petition for Rehearing with the

Court of Appeals for the Second Circuit, which denied

his Petition on May 7, 2008. See Appendix A, App. la.

Il. SUMMARY OF THE ARGUMENT

Mr. Gegaj hereby asserts that the Court of Appeals

for the Second Circuit, in contravention of its own

precedent, violated his Fifth Amendment rights to due

process of law by denying his Petitions for Review and

Rehearing and improperly relying on United States

Department of State Country Reports, issued

subsequent to the close of the proceedings below. The

Second Circuit departed from its own precedent and

those of its sister circuits, in finding that the country

conditions in Albania had changed sufficiently to

4

prevent Petitioner from claiming a well-founded fear

of persecution if returned. This finding was based on

a country report that was issued after the close of the

proceedings below and over a year prior to the Second

Circuit’s most recent decision.

il. ARGUMENT IN SUPPORT OF PETITION

A. The Court of Appeals for the Second

Circuit Abrogated Petitioner’s Rights to a

Full and Fair Hearing by Relying on the

findings of Hoxhallari_v. Gonzales, to

Establish Country Conditions in Albania.

1. Department of State Country Reports

on Human Rights Practices are

insufficient to conclusively rebut a

claim of a well-founded fear of future

persecution.

This Court should review the decision of the Second

Circuit because State Department Reports cannot

effectively rebut the presumption of future persecution

for a Petitioner. To be eligible for a grant of asylum,

an alien must first show that he or she is a “refugee”

within the meaning of Section 101(a)(42) of the

Immigration and Naturalization Act. See INA

§101(a)(42). To make this showing, an alien must

prove that he or she is either unable or unwilling to

return to his or her country based upon past

persecution suffered or a_ well-founded fear of

persecution on account of race, religion, nationality,

membership in a particular social group, or political

opinion. See Ramsameachire v. Ashcroft, 357 F.3d 169,

178 (2d Cir. 2004). “Persecution,” as employed in the

5

statute, has been defined by the Board of Immigration

Appeals and generally accepted by the United States

Circuit Courts of Appeals as meaning “a threat to the

life or freedom of, or the infliction of suffering or harm

upon, those who differ in a way regarded offensive.”

See Matter of Acosta, 19 I&N Dec. 211 (BIA 1985); Li

v. Attorney General of the U.S., 400 F.3d 157 (3d Cir.

2005); Montoya-Ulloa v. INS, 79 F.3d 930 (9th Cir.

1996); Guevara-Flores v. INS, 786 F.2d 1242 (5th Cir.

1986). Where an alien establishes that he or she has

suffered past persecution, he or she is still eligible for

asylum or withholding of removal based on

presumption that such alien has a well-founded fear of

future persecution. Ramsameachire v. Ashcroft, 357

F.3d 169, 176 (2d Cir. 2004) (citing Melgar de Torres v.

Reno, 191 F.3d 307, 311 (2d Cir. 1999)). See also Chen

v. INS, 359 F.3d 121, 134 (2d Cir. 2004) (“If an

applicant establishes that he has suffered past

persecution, he shall be presumed to have a well-

founded fear of future persecution on the basis of the

same claim”). Alternatively, where an alien seeks to

establish his or her status as a refugee upon a showing

that he or she holds a well-founded fear of future

persecution, the alien must present credible testimony

that he subjectively fears persecution and establish

that his fear is objectively reasonable. Ramsameachire

uv. Ashcroft, 357 F.3d 169, 176 (2d Cir. 2004) (citing

Abankwah v. INS, 185 F.3d 18, 22 (2d Cir. 1999)). An

alien who has not suffered past persecution is

nonetheless eligible for the relief of asylum or

withholding of removal based on a fear of future

persecution. See Alvarez-Flores v. INS, 909 F.2d 1 (1*

Cir. 1990); Kratchmarov v. Heston, 17 F.3d 551 (8

Cir. 1999); INS v. Cardoza-Fonseca, 767 F.2d 1448 (9*

Cir. 1986).

6

Under 8 C.F.R. §§208.13(b)(1)(i), 1208.13(b)(1)G) an

applicant who establishes past persecution is

presumed to have a well founded fear of future

persecution. The fear of persecution experienced by an

applicant for asylum in the future can however be

rebutted by a showing by the government that the

alien no longer has reason to fear persecution or harm.

The government may effectively rebut the presumption

of a future fear of persecution by demonstrating either

1) that there has been a fundamental change in

circumstances such that the applicant no longer has a

well founded fear; 2) that the applicant could avoid

future persecution by relocating to another part of the

applicant’s country of nationality. See 8 C.F.R.

§§208.13(b)(1)G)(A) & (B), 1208.13(b)(1)G)(A) & (B).

A given alien’s claim for asylum must necessarily

be understood within the context of the current

political situation existing in such alien’s native

country. Yang v. McElroy, 277 F.3d 158 (2d Cir. 2002)

(remanding to the BIA for more current reports where

there was a four-year delay between the BIA decision

and the IJ decision which relied on a five-year-old

State Department Country report); Asasni v. INS, 154

F.3d 719, 725-26 (7th Cir. 1998) (remanding the

matter to the BIA to permit applicant to file a motion

to reopen where conditions changed in country

subsequent to BIA denial); Cordero-Trejo v. INS, 40

F.3d 482, 490-91 (1st Cir. 1994) (reversed BIA denial of

asylum where testimony and evidence not considered

“in light of general conditions” in country as required

by 8 C.F.R. §208.13(a)). To this end, the Board of

Immigration Appeals has taken a view to requiring the

inclusion of general background information about the

alien applicant’s native country in the record of

7

proceedings as a foundation for the alien’s claim. See

also Gramatikov v. INS, 128 F.3d 619, 620 (7th Cir.

1997) (criticizing uncorroborated claims about country

conditions). The Board of Immigration Appeals has

asserted its reliance on the Profile of Asylum Claims

and Country Conditions reports issued by the

Department of State, which are prepared pursuant to

8 C.F.R. §§208.11(a), 1208.11(a), and the United States

government’s view of country conditions in specific

countries, and frequently regards the findings set forth

in such reports as dispositive of issues pertaining to

country conditions within the context of

asylum/removal proceedings. Matter of R-S-H- et al.,

23 I&N Dec. 629, 643 (BIA 2003) (In a case involving

Lebanon the Board of Immigration Appeals

emphasized that the Immigration Judges and the

Board frequently rely on Department of State Country

Reports); Matter of A-E-M-, 21 I&N Dec. 1157 (BIA

1998) (denying asylum based on a finding of no

evidence of country wide persecution pursuant to a

Department of State profile for Peru stating that

Sendero Luminosa has reduced ability to act and

operate in only in only a few areas of Peru); Matter of

V-T-S-, 21 I&N Dec. 792, 798-799 (BIA 1997)

(“Country condition profiles described by the State

Department have been found to be ‘the most

appropriate and perhaps best resource for information

on conditions in foreign nations.”)

Even where such documents are used frequently in

courts to provide a view of the conditions existent in

foreign nations, the probative value and weight

accorded to such reports ought to be limited. Courts

use these reports in the context of asylum/removal

proceedings when introduced for the purpose of

8

rebutting a presumption of a well-founded fear of

future persecution pursuant to a finding of past

persecution, or alternatively to rebut a claim of a well-

founded fear of future persecution. Specifically of

concern is the disregard of the relative impartiality of

the reports, and the circumstances attendant to their

issuance, in utilizing the reports as_ conclusive

authority of the conditions in a given country. The

Reports by the Department of State do not provide an

adequate basis, due to their unreliability and the

vagueness of their language to conclusively provide a

rebuttal to the fear of future persecution. At least one

Circuit Court of Appeals has noted that Department of

State Country Reports may be more akin to litigation

documents than accurate analyses of a country’s

prevailing conditions, and other courts have cautioned

against the use of country reports as a means of

discrediting an applicant’s testimony. Koliada v. INS,

259 F.3d 482, 487-88 (6th Cir. 2001) (In referring to

the State Department reports the court found that: “It

stands to reason that a report produced by one

executive department to aid the litigation of another

executive department would often support the second

department’s point of view.”); Mece v. Gonzales, 415

F.3d 562, 573 (6th Cir. 2005) (finding that simply

because there is a difference of opinion between the

Department of State report and the respondent’s

description regarding the political coloration of the

Socialist government in Albania, the differing

descriptions do r *t reflect on respondent’s credibility);

Tian-Yong Chen v. INS, 359 F.3d 121, 130-32 (2d Cir.

2004) (finding that the court should not place

“excessive reliance” on State Department reports

which “are sometimes skewed toward the governing

administration’s foreign-policy goals and concerns”

9

including “half-truths about human rights abuses in

friendly countries.”) These reports have no probative

value whatsoever, and courts have found that State

Department reports relating country conditions are

more like litigation documents than accurate analysis.

See Koliada v. INS, 259 F.3d 482, 487-88 (6 Cir.

2001). The Sixth Circuit in Koliada referred to the

State Department reports and found that they were

essentially manufactured documents which purport to

bolster the litigation position of the government: “It

stands to reason that a report produced by one

executive department to aid the litigation of another

executive department would often support the second

department’s point of view.” Id at 487-88.

Similarly, one court has stated that the State

Department records should not accorded wide latitude

of credence given the tendency to oversimplify the

situation in foreign nations. Courts have stated that

the reports “cannot substitute for an individualized

determination of an asylum or withholding claim; we

have cautioned against ‘over-reliance’ on the Country

Reports because of their potential for bias and the

inability of asylum seekers to question their

conclusions.” See Zheng v. Gonzales, 409 F.3d 804,

810-11 (7th Cir. 2005); See also He Chun Chen v.

Ashcroft, 376 F.3d 215, 225-26 (3d Cir. 2004) (Court

criticized the heavy reliance on “nothing more” than

the DOS Country Report because such Reports are not

the “Holy Writ” and the BIA “cannot hide behind the

State Department’s letterhead”)); See Ezeagwuna v.

Ashcroft, 325 F.3d 396, 405—08 (3d Cir. 2003) [holding

that the letters of Director of Office of Country Reports

and Asylum Affairs in DOS reports are double and

triple hearsay). See Galina v. INS, 213 F.3d 955,

10

958-599 (7th Cir. 2000) Statements in Country

Reports are not only not incontestable, they “are not

even facts”; “[T]he Board should treat it with a healthy

skepticism, rather than, as is its tendency, as Holy

Writ.”); See also Gramatikov v. INS, 128 F.3d 619, 620

(7th Cir. 1997)(“There is perennial concern that the

Department soft pedals human rights violations by

countries that the United States wants to have good

relations with”) (emphasis added).

However, in coming to its decision in the matter at

bar, the Court of Appeals for the Second Circuit

explicitly relied upon such a report, stating, “the 2006

U.S. Department of State Country Report on Human

Rights Practices in Albania does not mention the

persecution or torture of Democratic Party members

and, further states that there were no political

detainees that year.” Gegaj v. Mukasey, 07-3029-ag,

February 1, 2008, (2d Cir.) citing Hoxhallari uv.

Mukasey, 468 F.3d 179, 185-186 (2d Cir. 2006). The

Court then found that Petitioner did not have a well-

founded fear of persecution if returned to Albania and

consequently, denicd his petition for review. Given the

real concerns of the Circuit courts in assessing the

probative value of the Department of State reports,

and the Second Circuit’s reliance on such a report in

the case at bar, the issue begs determination by this

Honorable Court, and a writ of certiorari is

appropriate to provide definitive guidance on the value

of such reports.

1]

2. The Federal Circuit Courts of Appeals

are not in agreement as to the probative

value of Department of State Reports as

applicable in the context of

asylum/removal proceedings, thus

presenting a federal question

reviewable by this Honorable Court.

The Circuit Courts of Appeal are sharply divided

over the sufficiency and value of the Country Reports

offered by the Department of State. There is a decided

split in the circuit courts with respect to the probative

value of Department of State country reports

presenting a federal question for review by this

Honorable Court. Some _ circuits allow for

“administrative notice” of facts and opinions set forth

in Department of State reports. See e.g., Gonahasa v.

INS, 181 F.3d 538, 542 (4th.Cir. 1999) (finding inter

alia that the State Department profile reports are

“highly probative ... in a ‘vell founded fear case” and

further finding that in “most cases” such reports will

provide substantial evidence which can conclusively be

used to overcome the presumption of future fear of

persecution) See also, Vaduva v. INS, 131 F.3d 689

(7th Cir. 1997) (finding INS overcame presumption

based on its proffer of a State Department report for

the country of Romania, however the court rejected the

proffer of an Amnesty International report). Other

Courts have taken a view to assigning them very little

evidentiary weight resulting in the soft-peddling of

persecutory conditions in the alien’s native country in

the interest of diplomacy. See e.g Leiva-Montalvo v.

INS, 173 ¥.3d 749, 751-52 (9th Cir. 1999) (INS

introduction of State Dept. report describing

improvements in human rights situation insufficient

12

to overcome presumption); See also Del Carmen Mr.

Gegajna v. INS, 170 F.3d 1247, 1250 (9th Cir. 1999)

(Must show how changed country conditions “will

affect the specific petitioner’s situation ... Information

about general changes ... is not sufficient.”); See e.g.

Duarte de Guinac v. INS, 179 F.3d 1156, 1163-64 (9th

Cir. 1999) (finding that Guatemalan Profile failed to

rebut specific facts of persecution suffered by the

Respondents).

In assessing the objectiveness of the future fear

held by the Petitioner, the Court of Appeals relied on

the evidence presented by the Department of State.

The issue of whether Department of State records

provide a sufficient measure of the situation in Albania

as it relates to the future fear of the Petitioner, or, for

that matter, of any applicant for asylum who bases the

gravamen of their case on the future fear of

persecution is not settled. Sister courts are not in

agreement over the utility of the Department of State

records, or Country Reports professing to provide an

accurate picture of the situation in any given country.

At least one court has recognized that “a State

Department report on country conditions, standing

alone, is not sufficient to rebut the presumption of

future persecution when a petitioner has established

past persecution.” See Mr. Gegajna-Estrada v. INS,

293 F.3d 1089, 1096 (9th Cir. 2002). See also Ali v.

Ashcroft, 394 F.3d 780, 788 (9th Cir. 2005)(holding

that a past persecution claim cannot be rebutted by

relying on general conditions in a country contained in

a DOS report). Similarly, the Eighth Circuit has

followed the Ninth Circuit in demanding that

Department of State reports be evaluated more

stringently to assess whether they actually speak

13

directly to the matter before such reports can be used

to rebut effectively a fear of future persecution based

on changes in country conditions. See Awale uv.

Ashcroft, 384 F.3d 527, 531-32 (8th Cir. 2004) (finding

that the administrative record, which included the

State Department report, was inadequate in that it did

not contain substantial evidence rebutting past

persecution because of changed country conditions in

Somalia.). Similarly, in Berishaj v. Ashcroft, 378 F.3d

314, 326—28 (3d Cir. 2004), the Third Circuit ruled

that where:

“(T]he Immigration Judge misapplied the law in

concluding that changed conditions’ in

Montenegro have obviated any persecution

claim that Berishaj might once have had. In

such a posture, the burden of showing changed

country conditions is on the government... we

hold that the government must rebut the alien’s

well founded fear of future persecution with

specific evidence, which it did not produce” See

Berishaj v. Ashcroft, 378 F.3d 314, 326—28 (3d

Cir. 2004)

In Berishay, the Third Circuit warned against complete

reliance on these Country reports and discredited their

probative value:

“In many cases in which country conditions are

at issue, the administrative records are grossly

out of -date, requiring us to engage in the rather

artificial exercise of ruling on situations that

existed several years in the past, but do not exist

today. Here, we work from an administrative

record in which the most recent country

14

conditions report is over four years out-of-date.

While SEC v. Chenery Corp., 318 U.S. 80, 87 L.

Ed. 626, 63 S. Ct. 454 (1943), and the

constraints of process-based review of

administrative decision making prevent us from

supplementing a_ grossly out-of-date

administrative record, they do not command

blindness to the emerging pattern of stale

records. Considering the rapid, frequent

political changes in countries from which

asylum and CAT applicants usually come, and

the potentially dire consequences of sending

such an applicant back to his country of origin

to face possible persecution or torture on the

basis of such a stale report, we call on Congress,

the Department of Justice, the Department of

Homeland Security, and the BIA to improve the

structure and operation of the system, so that

all may have the confidence that the ultimate

disposition of a removal case bears a meaningful

connection to the merits of the petitioner's

claim(s) in light of contemporary world affairs.”

Id. at 328. (Emphasis added)

Despite such findings discrediting these reports,

some courts have despcratcly clung to the notion that

the State Reports provide an adequate account of the

conditions existent in a country. The Seventh Circuit

has ruled in Brucaj v. Ashcroft, 381 F.3d 602, 605-08

(7th Cir. 2004) that the Government met the burden

and effectively did rebut an ethnically Albanian-

claimant. of persecution by presenting country reports

and demonstrating regime political changes in the

structure of governance in the former Yugoslavia.

15

Similarly, the First Circuit has adamantly relied on

these reports, stating that “the Board of Immigration

Appeals is entitled to rely on the State Department’s

country reports as proof of country conditions

described therein, although it must also consider

evidence in the record that contradicts the State

Department’s descriptions and conclusions.” See, e.zg.,

Zarouite v. Gonzales, 424 F.3d 60, 63-64 (1st Cir.

2005). See also Waweru v. Gonzales, 437 F.3d 199,

203-05 (1st Cir. 2006) (affirming an Immigration

Judge’s finding that past persecution from Kenya

under the Moi regime was rebutted while abstaining

to conclusively deciding whether a particularized

showing of changed country conditions was

warranted). But see Mihaylov v. Ashcroft, 379 F.3d 15,

23 (1st Cir. 2004) (finding that changes in a political

regime does not necessarily rebut past persecution as

it does not “necessarily eliminate the objective basis

for an applicant’s fear of persecution at the hands of

his former oppressors.”) The First Circuit Court of

Appeals has acknowledged that uncertainty exists

with respect to the sufficiency and value of country

reports:

“Some of our decisions suggest that changed

country conditions cannot suffice without a

more particularized showing, see, e.g.,

Hernandez-Barrera v. Ashcroft, 373 F.3d 9, 24-

25 (lst Cir. 2005), and some suggest the

contrary, see, e.g., Quevedo v. Ashcroft, 336 F.3d

39, 44 (1st Cir. 2003); but the reconciling (and

most accurate) proposition is that changed

country conditions “do not automatically trump”

the applicant’s specific evidence. Fergiste v.

INS, 138 F.3d 14, 19 (1st Cir. 1998) (emphasis

16

added); see also Palma-Mazariegos v. Gonzales,

428 F.3d 30, 36 (1st Cir. 2005). The surrender of

the British at Yorktown in 1781 did not negate

the potential threat to Tories; it probably did as

to the Patriots.” See Waweru v. Gonzales, 437

F.3d 199, 203-05 (1st Cir. 2006)

In the instant matter the Second circuit cites to

Hoxhallari v. Gonzales 468 F.3d 179 (2d Cir. 2006), to

demonstrate that conditions in Albania have improved.

In Hoxhallari, the Second Circuit relied on a

Department of State Country report from 2006. To

extend that finding to the case at bar leaves the

Petitioner’s claims subject to the alleged conditions in

his country nearly two years ago. By so affirming the

decision of the BIA, the decision of the Court of

Appeals for the Second Circuit is at variance with the

decisions of other U.S. Courts of Appeals with respect

to the weight to be accorded to country conditions

reports issued by the U.S. Department of State. In

Tota, the First Circuit Court noted that:

While “|t)]he advice of the State Department is

not binding,” Gailius v. INS, 147 F.3d 34, 45 (1"

Cir. 1998) (citations and internal quotation

marks omitted), State Department reports are

“generally probative of country conditions.”

Palma-Mazariegos v. Gonzales, 428 F.3d 30, 36

(1* Cir. 2005). Evidence in these reports never

“automatically trump[s]” petitioner’s specific

evidence, Waweru v. Gonzales, 437 F.3d 199,

203 (1* Cir. 2006) (citations and internal

quotation marks omitted) (emphasis _ in

original), and is “open to contradiction.”

Zarouite v. Gonzales, 424 F.3d 60, 63 (1* Cir.

17

2005). Further, “abstract evidence of generalized

changes in country conditions, without more,

cannot rebut a presumption of a well-founded

fear of future persecution.” Palma-Mazariegos,

428 F.3d at 35. [Emphasis Added].

Similarly, in Tian-Yong Chen v. INS, 359 F.3d 121 (2d

Cir. 2004), the U.S. Court of Appeals for the Second

Circuit stated that

... State Department reports are usually the

result of estimable expertise and earnestness of

purpose, and they often provide a useful and

informative overview of conditions in_ the

applicant’s home country. But their

observations do not automatically discredit

contrary evidence presented by the applicant,

and they are not binding on the immigration

court. [Citations omitted.| Thus, where a

report suggests that, in general, an individual

in the applicant’s circumstances would not

suffer or reasonably fear persecution in a

particular country, the immigration court may

consider that evidence, but it is obligated to

consider also any contrary or countervailing

evidence with which it ts presented, as well as

the particular circumstances of the applicant’s

case demonstrated by testimony and other

evidence. [Emphasis Added.]

Given the divergence of the Circuit Courts, the issue of

whether State Department reports and Country

Conditions ought to be considered probative and

authoritative to rebut claims by applicants such as Mr.

Gegaj’s of a fear of future persecution if forced to

18

return to his native country merits review by this

Honorable Court. Thus, by granting certiorari in this

matter, this Honorable Court can settle the question of

the incongruity within the various courts.

B. The probative value accorded to and the

consideration of the Department of State

Country Report on Albania by the Court of

Appeals for the Second Circuit as a basis

to discredit Petitioner’s claim of a well-

founded fear of future persecution, was

inappropriate and violative of the Fifth

Amendment.

1. The dissention amongst the Circuit

Courts of Appeals as to the probative

weight of Department of State country

reports has resulted in differing

evidentiary burdens for’ similarly

situated aliens in contravention of their

Fifth Amendment right to due process.

The Fifth Amendment to the Constitution grants,

in pertinent part, due process of law before a person

can be deprived of life, liberty or property. See U.S.

Const., Fifth Amend. It is well settled that this

Honorable Court has extended Fifth Amendment

guarantees of the due process of law to aliens in

removal proceedings. See Reno vu. Flores, 507 U.S. 292,

307 (1993); Wong Yang Sung v. McGrath, 339 U.S. 33

(1950). This Honorable Court has held that due

process is violated “if a practice or rule offends some

principle of justice so rooted in the traditions and

conscience of our people as to be ranked as

19

fundamental”. Snyder v. Massachusetts, 291 U.S. 97,

105 (1934).

At stake in removal proceedings is the potential

deprivation of a significant, constitutionally protected

liberty interest, and often the very life and freedom of

the petitioning aliens. Accordingly, removal

proceedings must be conducted in a manner which

upholds the principles of fundamental fairness and

substantial justice. See Bridges v. Wixon, 326 U.S. 135

(1945); INS v. Cardoza-Fonseca, 480 U.S. 421 (1987);

Harisiades v. Shaughnessy, 342 U.S. 580 (1952); Ng

Fung Ho v. White, 259 U.S. 276 (1922). In removal

proceedings involving a claim for asylum, the burden

of proof for establishing eligibility for asylum lies with

the petitioner. See Diab v. Ashcroft, 397 F.3d 35, 39

(ist Cir. 2005); 8 C.F.R. § 1208.13(a). This burden can

be met by proving past persecution or a well-founded

fear of future persecution on account of “race, religion,

nationality, membership in a particular social group,

or political opinion.” 8 U.S.C § 1101(a)(42)(A); 8 C.F.R.

§ 1208.13(b)(1). Pursuant to 8 C.F.R. §§208.13(b)(1)(i),

1208.13(b)(1)G) an applicant who establishes past

persecution is presumed to have a well founded fear of

future persecution. The fear of persecution

experienced by an applicant for asylum in the future

can however be rebutted by a showing by the

government that the alien no longer has reason to fear

persecution or harm. Furthermore, an applicant’s

testimony alone, “if credible, may be sufficient to

sustain the burden of proof without corroboration,” 8

C.F.R. § 1208.13(a), but if the applicant is found not to

be entirely credible, corroborating evidence “may be

used to bolster an applicant’s credibility.” Diab, 397

F.3d at 39.

20

Department of State country reports are almost

invariably admitted into evidence during the course of

removal proceedings based on a claim of asylum, and

are used concomitantly to corroborate and/or discredit

an applicant’s testimony at trial. Particularly

problematic is the use of such reports to conclusively

rebut a presumption or claim of a well founded fear of

future persecution; as such a finding improperly

effectuates a shifting of the burden of proof back to the

alien. Thus, aliens who have established a claim of

well founded fear of future persecution and whose

proceedings are before a Circuit Court that deems

Department of State reports to be of substantial

probative weight, must effectively bear an increased

burden of proof when the report is used by the

government to conclusively rebut such claim and shift

the burden back to the ahien. In contrast, a similarly

situated alien in a circuit that assigns little probative

weight to the state reports would benefit from a higher

threshold showing by the government, before his or

her claim of a well founded fear of persecution is

successfully rebutted and the burden is shifted back to

the alien. This disparate employment of State

Department reports as evidence conclusive enough to

discredit an alien’s claim of a well founded fear of

persecution has the perverse effect of requiring

similarly situated alien asylum applicants to meet

substantially different burdens of proof depending

upon the circuit that the alien’s proceedings are before.

In the case at bar, Mr. Gegaj is in danger of being

returned to a country where both his grandfather and

father were murdered for their political activism, and

where Mr. Gegaj himself was savagely beaten for the

self-same trait. Given the substantial liberty interests

21

at stake in asylum proceedings, the judicial process

afforded to alien asylum applicants must necessarily

entail more than a fortuitous application of evidentiary

standards for their right to due process pursuant to

the Fifth Amendment to be _ preserved. The

incongruent treatment of Department of State reports

by the circuit courts within the context of

removal/asylum proceedings undermines the due

process guarantees afforded to aliens’ in

removal/asylum proceedings. As such, adjudication as

to the probative value of State Department country

reports by this Honorable Court is merited.

2. The Court of Appeals for the Second

Circuit based its decision on a

Department of State Country Report

issued subsequent to the close of the

record in the proceedings under review

in contravention of the Due Process

guarantees set forth in the Fifth

Amendment.

In its decision denying Mr. Gegaj’s appeal of the

BIA’s denial of his Motion to Reopen, the Second

Circuit ultimately based its finding on a State

Department report issued after the record of

proceedings was closed. That the Second Circuit relied

upon this report, rcleased over a year prior to the

Circuit Court’s decision, and covering the period two

years prior, without any regard to countervailing

country conditions reports which the Petitioners might

have presented, violated Petitioner’s Fifth Amendment

rights. The Second Circuit’s affirmance violated its

own precedent, and was in contravention of the

concerns raised by its sister circuits, thus depriving

22

Mr. Gegaj of his right to Due Process pursuant to the

Fifth Amendment. See Adjin v. Bureau of Citizenship

and Immigration Services, 437 F.3d 261 (2d Cir. 2006);

De la Llana-Castellon v. INS, 16 F.3d 1093, 1099-1100

(10 Cir. 1994); Castillo-Villagra v. INS, 972 F.2d

1017, 1029 (9 Cir. 1992).

In view of the widespread use of Department of

State country reports, and the dissention amongst the

circuit courts as to the propriety of taking

administrative notice of findings set forth in these

reports, there exists a very real risk that aliens such

as Mr. Gegaj will be subject to an institutional

deprivation of his right to due process within the

context of his removal proceedings. The review of this

Honorable Court is thus warranted to ensure that the

constitutional safeguards afforded to such individuals

as set forth in the Fifth Amendment are preserved.

CONCLUSION

For the reasons set forth above, this Honorable

Court should grant certiorari and schedule this matter

for briefing and oral argument to ensure the

opportunity for Mr. Gegaj to have the merits of his

meritorious appeal reviewed by the Court of Appeals

for the Second Circuit.

BY:

23

Respectfully submitted,

CHRISTOPHE & ASSOCIATES, P.C.

CHARLES CHRISTOPHE, Esq.

Counsel of Record

2 Wall Street, 8“ Floor

New York, New York 10005

212.344.3800

APPENDIX

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Thurgood Marshall U.S. Court House

40 Foley Square, New York, N.Y. 10007

Catherine O’Hagan Wolfe

Clerk of Court

No. 07-3029-ag

[Filed May 7, 2008]

At a stated term of the United States Court of

Appeals for the Second Circuit, held at the Daniel

Patrick Moynihan United States Courthouse, 500

Pearl Street, in the City of New York, on the 7" day of

May two thousand and eight,

Mark Gegaj,

Petitioner,

Vv.

Michael B. Mukasey, United States

Attorney General,

Respondent.

A e Le e e _e ae a a

2a

ORDER

Petitioner having filed a petition for panel rehearing,

or, in the alternative, for rehearing en banc, and the

panel that determined the appeal having considered

the request for panel rehearing, and the active

members of the Court having considered the request

for rehearing en banc,

IT IS HEREBY ORDERED that the petition is

DENIED.

For the Court:

Catherine O’Hagan Wolfe, Clerk

By: /s/ Franklin Perez

Frank Perez, Deputy Clerk

3a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

NAC: 07-3029-ag

BIA: A 95 146 530

[Filed February 1, 2008]

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE

PRECEDENTIAL EFFECT. CITATION TO

SUMMARY ORDERS FILED AFTER JANUARY 1,

2007, IS PERMITTED AND IS GOVERNED BY THIS

COURT'S LOCAL RULE 32.1 AND FEDERAL RULE

OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR

OTHER PAPER IN WHICH A LITIGANT CITES A

SUMMARY ORDER, IN EACH PARAGRAPH IN

WHICH A CITATION APPEARS, AT LEAST ONE

CITATION MUST EITHER BE TO THE FEDERAL

APPENDIX OR BE ACCOMPANIED BY THE

NOTATION: “SUMMARY ORDER).”. A PARTY

CITING A SUMMARY ORDER MUST SERVE A

COPY OF THAT SUMMARY ORDER TOGETHER

WITH THE PAPER IN WHICH THE SUMMARY

ORDER IS CITED ON ANY PARTY NOT

REPRESENTED BY COUNSEL UNLESS THE

SUMMARY ORDER IS AVAILABLE IN AN

ELECTRONIC DATABASE WHICH IS PUBLICLY

ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH

4a

AS THE DATABASE AVAILABLE AT

HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY

IS SERVED BY REASON OF THE AVAILABILITY

OF THE ORDER ON SUCH A DATABASE, THE

CITATION MUST INCLUDE REFERENCE TO THAT

DATABASE AND THE DOCKET NUMBER OF THE

CASE IN WHICH THE ORDER WAS ENTERED.

At a stated term of the United States Court of

Appeals for the Second Circuit, held at the Daniel

Patrick Moynihan United States Courthouse, 500

Pearl Street, in the City of New York, on the 1 day of

February, two thousand eight.

PRESENT:

HON. PIERRE N. LEVAL,

HON. SONIA SOTOMAYOR,

HON. RICHARD C. WESLEY,

Circuit Judges.

Mark Gega},

Petitioner,

V.

Michael B. Mukasey, United States

Attorney General,’

Respondent.

Nee eee eee ee Se”

|

" Pursuant to Federal Rule of Appellate Procedure 43(c)(2),

Attorney Genera] Michael B. Mukasey is automatically

substituted for former Attorney Gencral Alberto R. Gonzales as

a respondent in this case.

5a

FOR PETITIONER: Charles Christophe, New York,

New York.

FOR RESPONDENT: Jeffrey S. Bucholtz, Acting

Assistant Attorney General;

James IE. Grimes, Office of

Immigration Litigation;

Michael H. Park, Office of

Legal Counsel, U.S.

Department of Justice,

Washington, D.C.

UPON DUE CONSIDERATION of this petition for

review of a Board of Immigration Appeals (“BIA”)

decision, it is hereby ORDERED, ADJUDGED, AND

DECREED that the petition for review is DENIED.

Petitioner Mark Gegaj, a native and citizen of

Albania, seeks review of a June 29, 2007 order of the

BIA denying his motion to reopen’ removal

proceedings. Jn re Mark Gegaj, No. 95 146 530 (B.L.A.

June 29, 2007). We assume the parties’ familiarity

with the underlying facts and procedural history in

this case.

When the BIA denies a motion to reopen, this Court —

reviews the BIA’s decision for an abuse of discretion.

See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005). An

abuse of discretion may be found where the BIA’s

decision “provides no rational explanation, inexplicably

departs from established policies, is devoid of any

reasoning, or contains only summary or conclusory

statements; that is to say, where the Board has acted

in an arbitrary or capricious manner.” Ke Zhen Zhao

6a

v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir. 2001)

(internal citations omitted).

The BIA did not abuse its discretion in denying

Gegaj’s motion as untimely. See 8 C.F.R. § 1003.2(c)(2).

The final order in these proceedings was entered by

the BIA in February 2004, and Gegaj did not file his

motion to reopen until April 2007, well beyond the

90-day filing deadline. 8 C.F.R § 1003.2(c)(2).

Furthermore, the BIA reasonably found that Gegaj

failed to establish that he qualified for an exception to

the time limitation for motions to reopen. These

limitations do not apply if the motion to reopen is

based on “changed circumstances arising in the

country of nationality or in the country to which

deportation has been ordered.” 8 C.F.R.

§ 1003.2(c)(3)(ii). Here, the BIA reasonably found that

Gegaj had not demonstrated a change in

circumstances in Albania where: (1) some of~the

evidence he submitted in support of his motion to

reopen was cumulative with evidence that was

previously considered; (2) he failed to demonstrate that

the evidence could not have been presented at the

hearing below; and (3) the evidence does not

demonstrate a change in circumstances in Albania.

As the BIA found, much of the evidence Gegaj

submitted in support of his motion to reopen addressed

the persecution of his father and grandfather, which

occurred years ago. As such, this evidence was

previously available and failed to demonstrate a

change in circumstances in Albania. 8 C.F.R.

§ 1003.2(c)(3)Gi). Gegaj did not provide any evidence in

support of his assertion that “dangers associated with

Ta

obtaining the documents from Albania” prevented him

from submitting them at an earlier date. In addition,

the evidence Gegaj submitted regarding incidents in

which individuals shot at the office of a Democratic

Party candidate and a crucifix was knocked over fail to

demonstrate that he would be persecuted or tortured

for being a Democratic Party member. Moreover, the

2006 U.S. Department of State Country Report on

Human Rights Practices in Albania does not mention

the persecution or torture of Democratic Party

members and, further, states that there were no

reports of political prisoners or detainees that year.

See Hoxhallari v. Gonzales, 468 F.3d 179, 185-86 (2d

Cir. 2006) (describing a “substantial change” towards

democracy now that the Democratic Party is in power

in Albania).

To the extent that Gegaj challenges the agency’s

adverse credibility determination, his arguments are

beyond this Court’s purview. A petitioner must file a

petition for review of a BIA order within thirty days of

the entry of that order. See Paul v. INS, 248 F.3d 43,

45 (2d Cir. 2003); 8 U.S.C. § 1252 (b)(1). Accordingly,

we have jurisdiction to review only the BIA’s June

2007 order denying his motion to reopen. See 8 U.S.C.

§ 1252(b)(1). Accordingly, the BIA properly denied

Gegaj’s motion and provided adequate reasoning for

doing so. See Ke Zhen Zhao, 265 F.3d at 93.

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. The pending

request for oral argument in this petition is DENIED

in accordance with Federal Rule of Appellate

8a

Procedure 34(a)(2), and Second Circuit Local Rule

34(d)(1).

FOR THE COURT:

Catherine O’ Hagan Wolfe, Clerk

By:

9a

APPENDIX C

U.S. Department of Justice

Executive Office for Immigration Review

Falls Church, Virginia 22041

Decision of the Board of Immigration Appeals

File: A95-146-530 - New York, NY Date:

JUN 29 2007

In re: GEGAJ, MARK

IN REMOVAL PROCEEDINGS

MOTION

ON BEHALF OF RESPONDENT: Meyerovich Marina,

Esq

ORDER:

PER CURIAM. The respondent moves the Board

pursuant to 8 C.F.R. § 1003.2 to reopen our decision

dated February 26, 2004. On February 26, 2004, this

Board affirmed, without opinion, the Immigration

Judge’s decision at which time we dismissed the

respondent’s eopeal from the Immigration Judge’s

denial of the application for asylum and withholding of

removal under sectisns 208 and 241(b)(3) of the

Immigration and Nationality Act and relief under the

10a

Convention Against Torture, 8 C.F.R. § 1208.16(c).

Pursuant to 8 C.F.R. § 1003.2(c)(2), a motion to reopen

in any case previously the subject of a final decision by

the Board must be filed no later than 90 days after the

date of that decision. In the instant case, a motion to

reopen would have been due on or before May 24,

2004. The record reflects, however, that the Board did

not receive the motion until April 5, 2007. The motion

to reopen was therefore filed out of time. The

Department of Homeland Security (the “DHS,”

formerly the Immigration and Naturalization Service)

has not responded to the pending motion.

The new evidence submitted in support of

reopening includes a personal affidavit of the

respondent, a February 2007 statement from a

minister to the effect that he has been acquainted with

the respondent for 5 years and that he is honest and

trustworthy, and 2907 affida its of the respondent’s

sister and uncle describing events which reportedly

occurred prior to the respondeat’s departure from

Albania. The respondent has also submitted copies of

various documents such as his passport, membership

cards, his father’s death certificate, declarations and

affidavits regarding the political activities and

contributions of the respondent and other members of

his family and the execution of his grandfather in

1958. Some of this evidence is cumulative in nature as

it is consistent with evidence previously considerec,

and the respendent has not shown that the evidence

which is new could not have been obtained and

presented at the hearing below. The respondent has

also submitted evidence of country conditions in

Albania consisting of the U.S. Department of State’s

2006 Country Reports on Human Rights Practices in

lla

Albania, released on March 6, 2007, and recent

newspaper articies. However, the respondent has not

established that he is entitled to an exception to the

filing requirements for reopening. The material on

country conditions proffered with the motion does not

demonstrate meaningfully changed conditions in

Albania pertinent to this respondent’s claims from the

conditions in Albania when the case was before the

Immigration Judge. 8 C.F.R. 3 10038.2(c)(3)(ii).

Consequently, neither reopening nor a stay of removal

is warranted. Accordingly, the motion is denied.

/s/

FOR THE BOARD

12a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

NAC No. 04-1135-ag

[Filed January 4, 2006]

SUMMARY ORDER

THIS SUMMARY ORDER WILL NOT BE

PUBLISHED IN THE FEDERAL REPORTER AND

MAY NOT BE CITED AS PRECEDENTIAL

AUTHORITY TO THIS OR ANY OTHER COURT,

BUT MAY BE CALLED TO THE ATTENTION OF

THIS OR ANY OTHER COURT IN A SUBSEQUENT

STAGE OF THIS CASE, IN A RELATED CASE, OR

IN ANY CASE FOR PURPOSES OF COLLATERAL

ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of

Appeals for the Second Circuit, held at the Thurgood

Marshall United States Courthouse, Foley Square, in

the City of New York, on the 4th day of January, two

thousand and six.

PRESENT:

HON. RICHARD J. CARDAMONE,

HON. ROSEMARY S. POOLER,

HON. BARRINGTON D. PARKER,

Circuit Judges.

13a

Mark Gegaj,

Petitioner,

-V-

Alberto R. Gonzales,’

Attorney General

Respondent.

FOR PETITIONER: Charles Chistophe, Esq.,

Christophe & Associates, P.C.,

New York, New York.

FOR RESPONDENT: Jonathan S. Gasser, Acting

United States Attorney for the

District of South Carolina,

Jennifer Aldrich, Assistant

United States Attorney,

Columbia, South Carolina.

UPON DUE CONSIDERATION of this petition

for review of the Board of Immigration Appeals, it is

hereby ORDERED, ADJUDGED, AND DECREED

that the petition for review is DENIED.

Mark Gegaj, a citizen of Albania, petitions for

review of a final order of the Board of Immigration

' Pursuant to Federal Rule of Appellate Procedure 43(c)(2),

Attorney General Alberto R. Gonzales is automatically substituted

for former Attorney General John Ashcroft as respondent in this

case.

l4a

Appeals (BIA) affirming an immigration judge’s (IJ)

decision, which denied Gegaj’s application for asylum,

withholding of removal and relief under the

Convention Against Torture (CAT). We assume the

parties’ familiarity with the underlying facts and

procedural history of the case.

This Court reviews the agency’s factual findings,

including adverse credibility determinations, under

the substantial evidence standard. See 8 U.S.C.

§ 1252(b)(4)(B); Jin Hui Gao v. United States Att’y

Gen., 400 F.3d 963, 964 (2d Cir. 2005) (per curiam);

Ramsamecchire v. Ashcroft, 357 F.3d 169, 178-83 (2d

Cir. 2004).

In this case, the IJ’s adverse credibility

determination was supported by substantial evidence.

First, the three major events that formed the basis for

the IJ’s adverse credibility finding each bore a

“legitimate nexus” to the relief that Gegaj was seeking.

Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.

2003). Gegaj’s political activity, and the two alleged

attacks on him and his father by political adversaries,

were introduced to support his claim that he had a

well-founded fear of future persecution, see 8 U.S.C.

§ 1101(a)(42), and that it was more likely than not that

his life would be threatened if forced to return to

Albania, see 8 C.F.R. § 208.16(b)(1).

In addition, the issues that the IJ had with Gegaj’s

details about those three events were specific and

cogent, and not based on speculation or conjecture. See

Secaida-Rosales, 331 F.3d at 307. Gegaj gave little

detail about how he participated in the Democratic

Party other than to help with elections and make

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“propaganda.” He offered no description of how

frequently and in what capacity he helped the party,

other than to relay that he told people not to vote for

the Communists in the October 2000 election.

Gegaj’s testimony regarding his father’s death was,

as the IJ noted, vague on two important issues. Gegaj

never was able to explain how he knew that his father

had been beaten with wooden sticks. Gegaj also never

adequately explained how his father’s friends came to

know that his father had been murdered by

Communists.

The IJ’s reliance on problems with Gegaj’s

testimony about his October 2000 attack as a basis for

its adverse credibility finding was, while not as strong

as the other two bases, still adequate. The most

substantial basis noted by the IJ was that Gegaj

provided specific details about the attack only wien

asked leading questions on redirect. This attack, an

alleged violent beating by political adversaries and the

only specific instance Gegaj offered of violence that he

directly suffered, was the linchpin of his claim for

relief.

The other bases for the IJ’s adverse credibility

finding concerning the October 2000 event were (1)

Gegaj’s conflicting responses about whether he was

injured as a result of the October 2000 attack, and (2)

the conflicting reasons Gegaj gave for why he did not

leave his house after the attack. Regarding the first

basis, it is not clear from the transcript whether Gegaj

made an inconsistent statement or if he was merely

confused or misspoke. However, mindful of the IJ’s

unique position to evaluate not only the applicant’s

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verbatim testimony, but appearance, demeanor, body

language and other relevant facts not captured in the

hearing transcript, Zhou Yun Zhang v. INS, 386 F.3d

66, 73-74 (2d Cir. 2004), we cannot say that on the

record before us a “reasonable adjudicator would be

compelled to conclude to the contrary,” 8 U.S.C.

§ 1252(a)(4)(B).

The second weaker basis was the JJ’s observation

that Gegaj “testified at one point that he did not go out

for ten days, although he appeared to imply at one

point that was because of the seriousness of the

injuries,” but “later said it was because he was afraid

and not because he was injured.” Contrary to the IJ’s

finding, it does not appear that Gegaj ever disavowed

one reason, either fear or injury, in favor of the other.

Although this basis for the IJ’s adverse credibility

finding is questionable, remand is inappropriate in

this case because this questionable basis is so

outweighed by the others that Gegaj would have “no

realistic possibility of a different result on remand.”

See Cao He Lin v United States Dep't of Justice, 428

F.3d 391, 395 (2d Cir. 2005).

The decision of the BIA is accordingly AFFIRMED

and the petition for review is DENIED.

Having completed our review, any stay of removal

that the Court previously granted in this petition is

VACATED, and any pending motion for a stay of

removal! in this petition is DENIED 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).

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FOR THE COURT,

Roseann B. MacKechnie, Clerk

By:

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APPENDIX E

U.S. Department of Justice

Executive Office for Immigration Review

Falls Church, Virginia 22041

Decision of the Board of Immigration Appeals

File: A95-146-530 - New York Date:

FEB 26 2004

In re: GEGAJ, MARK

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Lombardi, James

A., Esquire

ORDER:

PER CURIAM. The Board affirms, without opinion,

the results of the decision below. The decision below is,

therefore, the final agency determination. See 8C.F.R.

§ 1003.1(e)(4).

/s/

FOR THE RECORD