Opinion
18-2364 NAC
09-03-2020
ENVER NIKQI, Petitioner, v. WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent.
FOR PETITIONER: Gregory Marotta, Vernon, NJ. FOR RESPONDENT: Ethan P. Davis, Acting Assistant Attorney General; Greg D. Mack, Senior Litigation Counsel; Shahrzad Baghai, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 3rd day of September, two thousand twenty. PRESENT: JON O. NEWMAN, JOSÉ A. CABRANES, MICHAEL H PARK, Circuit Judges.
FOR PETITIONER:
Gregory Marotta, Vernon, NJ.
FOR RESPONDENT:
Ethan P. Davis, Acting Assistant Attorney General; Greg D. Mack, Senior Litigation Counsel; Shahrzad Baghai, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED that this petition for review of a decision of the Board of Immigration Appeals ("BIA") is DENIED.
Petitioner Enver Nikqi, a native and citizen of Kosovo, seeks review of a July 18, 2018, decision of the BIA affirming an August 8, 2017, decision of an Immigration Judge ("IJ") denying his application for asylum and withholding of removal. In re Enver Nikqi, No. A208 759 468 (B.I.A. Jul. 18, 2018), aff'g No. A208 759 468 (Immig. Ct. N.Y. City Aug. 8, 2017). We assume the parties' familiarity with the underlying facts and procedural history.
Nikqi also applied for relief under the Convention Against Torture, but did not appeal the denial of that relief to the BIA, nor does he challenge it in the present petition. --------
Under the circumstances of this case, we have reviewed the IJ's decision as modified by the BIA, i.e., minus the IJ's determination that there was no nexus between Nikqi's harm and his political opinion because the BIA did not rely on that ground in affirming the IJ's decision. See Xue Hong Yang v. U.S. Dep't of Justice, 426 F.3d 520, 522 (2d Cir. 2005); see also Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 122 (2d Cir. 2007) ("[W]hen the BIA issues an opinion . . . and that opinion constitutes the final agency determination, we may consider only those issues that formed the basis for that decision."). The applicable standards of review are well established. See 8 U.S.C. § 1252(b)(4)(B); Lecaj v. Holder, 616 F.3d 111, 114 (2d Cir. 2010).
Nikqi claimed past persecution and a fear of future persecution, alleging that the Qeku family, which included former commanders in the Kosovo Liberation Army, had threatened him with death and physically attacked him and his father because of a land dispute. "To qualify as persecution the conduct at issue must be attributable to the government, whether directly because engaged in by government officials, or indirectly because engaged in by private persons whom the government is unable or unwilling to control." Scarlett v. Barr, 957 F.3d 316, 328 (2d Cir. 2020) (internal quotation marks omitted); see also Matter of A-B-, 27 I. & N. Dec. 316, 337 (A.G. 2018) ("The applicant must show that the government condoned the private actions or at least demonstrated a complete helplessness to protect the victims." (internal quotation marks omitted)); Scarlett, 957 F.3d at 333-34 (rejecting challenge to Matter of A-B-'s "complete helplessness" standard).
Substantial evidence supports the agency's determination that Nikqi failed to establish that the Kosovan government could not protect him from attacks by private individuals related to a land dispute. The agency reasonably relied on a Kosovan court decision, which decided the land dispute in Nikqi's favor and stated that criminal proceedings were pending against his attackers. We reject Nikqi's argument that this decision was "merely placating him" because he does not provide any support for that speculative statement. See Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005) (rejecting an assertion without "solid support in the record" as "speculative at best"). We defer to the IJ's decision to afford minimal weight to a letter from Nikqi's wife because she was an interested party. See Y.C. v. Holder, 741 F.3d 324, 332, 334 (2d Cir. 2013); Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (BIA 2010), rev'd on other grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012). Moreover, the State Department's 2016 Human Rights Practices Report for Kosovo does not establish that the Kosovan government is unable to protect Nikqi because "generalized language culled from . . . State Department reports" does not constitute the "particularized evidence" necessary to support his claim. Mu Xiang Lin v. U.S. Dep't of Justice, 432 F.3d 156, 160 (2d Cir. 2005).
Finally, Nikqi argues that the Immigration Court lacked jurisdiction over his proceedings because his notice to appear did not specify the time and date of his initial hearing. Despite this deficiency, the Immigration Court had jurisdiction because Nikqi received a notice of hearing providing the missing information two months before his initial removal hearing, and he appeared at that hearing. See Banegas Gomez v. Barr, 922 F.3d 101, 112 (2d Cir. 2019) (holding that a notice to appear "that omits information regarding the time and date of the initial removal hearing is nevertheless adequate to vest jurisdiction in the Immigration Court, at least so long as a notice of hearing specifying this information is later sent to the alien").
For the foregoing reasons, the petition for review is DENIED. All pending motions and applications are DENIED and stays VACATED.
FOR THE COURT:
Catherine O'Hagan Wolfe,
Clerk of Court