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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2008

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1199%3A1. Public record. Not legal advice.