Opinion
No. 07-0496-ag NAC.
January 3, 2008.
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, in part, and GRANTED, in part, the decision of the BIA is VACATED, and the case REMANDED for further proceedings consistent with this order.
FOR PETITIONERS: Gregory Marotta, Vernon, New Jersey. FOR RESPONDENT: Peter D. Keisler, Assistant Attorney General, Civil Division; Lisa M. Arnold, Senior Litigation Counsel; Erica B. Miles, Attorney, Office of Immigration Litigation, U.S. Department of Justice, Washington, D.C.
PRESENT: HON. JOSÉ A. CABRANES, HON. BARRINGTON D. PARKER, HON. REENA RAGGI, Circuit Judges.
Petitioners Radoni and Skenderi, natives and citizens of Albania, seek review of a January 19, 2007 order of the BIA affirming the April 21, 2005 decision of Immigration Judge ("IJ") Adam Opaciuch denying the petitioners' applications for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). In re Shkelzen Radoni, Enriketa Skenderi, Nos. A 98 690 558; A 98 690 559 (B.I.A. Jan. 19, 2007), aff'g Nos. A 98 690 558; A 98 690 559(Immig. Ct. N.Y. City Apr. 21, 2005). We assume the parties' familiarity with the underlying facts and procedural history in this case.
Although petitioners challenge the denial of relief in "asylum-only" proceedings, as opposed to an actual removal order, this Court nonetheless has jurisdiction under 8 U.S.C. § 1252(a)(1) because the denial of relief in these circumstances is the functional equivalent of a removal order.See Kanacevic v. INS, 448 F.3d 129, 134 (2d Cir. 2006).
When the IJ's decision rests on multiple alternate grounds and the BIA adopts and affirms that decision without expressly addressing each ground, this Court may review the entire IJ decision. See Ming Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir. 2006). We review the agency's factual findings under the substantial evidence standard, treating them as "conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary," 8 U.S.C. § 1252(b)(4)(B).See, e.g., Zhou Yun Zhang v. INS, 386 F.3d 66, 73 n. 7 (2d Cir. 2004), overruled in part on other grounds by Shi Liang Lin v. United States Dep't of Justice, 494 F.3d 296, 305 (2d Cir. 2007). We will, however, vacate and remand for new findings if the agency's reasoning or its fact-finding process was legally flawed. See Ivanishvili v. United States Dep't of Justice, 433 F.3d 332, 337 (2d Cir. 2006); cf. Xiao Ji Chen v. United States Dep't of Justice, 471 F.3d 315, 339-40 (2d Cir. 2006) (noting principle, but denying remand because agency would adhere to decision even in absence of noted defects).
Applying these principles to this case, we conclude that petitioners' CAT claim is waived because they failed to pursue it before this Court and addressing this argument is not necessary to avoid manifest injustice. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir. 2005). We therefore deny the petition for review to that extent.
With respect to petitioners' remaining challenges, they similarly fail to challenge the IJ's dispositive relocation finding before this Court. In Radoni's case, we nevertheless decline to rely on this waiver to deny the petition because doing so would result in "manifest injustice." LNC Invs., Inc. v. Nat'l Westminster Bank, N.J., 308 F.3d 169, 176 n. 8 (2d Cir. 2002) ("While we no doubt have the power to address an argument despite its abandonment on appeal, we ordinarily will not do so `unless manifest injustice otherwise would result.'" (quoting Anderson v. Branen, 27 F.3d 29, 30 (2d Cir. 1994)). No such concern arises in Skenderi's case because she also fails to challenge the agency's finding that she did not establish past persecution or a well-founded fear of future persecution, conclusions sufficiently supported by the record to eliminate any manifest injustice concerns. In Randoni's case, however, a number of flaws in agency analysis preclude that conclusion.
First, the IJ failed specifically to assess whether, "under all the circumstances, it would be reasonable to expect the applicant[s]" to relocate, and to consider, among other things, "administrative, economic, or judicial infrastructure; geographical limitations; and social and cultural constraints, such as age, gender, health, and social and familial ties." 8 C.F.R. § 1208.13(b)(3); Hong Ying Gao v. Gonzales, 440 F.3d 62, 71-72 (2d Cir. 2006).
Second, the IJ misapprehended the record in concluding that it supplied "no indication" that Radoni was ever "denied his right to be involved in politics," or could not obtain protection from the Albanian government "against the individual who assaulted him." To the contrary, Radoni, who was deemed credible, alleged that (1) he and his brother sought to participate in government opposition; (2) government officials arranged for the men who murdered his brother to escape prosecution; (3) police thereafter searched his home and struck him on the head, inflicting serious injury; and (4) after he gave a political speech, another uniformed officer struck him, resulting in his hospitalization. The agency appears not to have considered how these facts may have affected petitioner's ability to relocate within Albania. See Xiao Ji Chen, 471 F.3d at 341 (emphasizing that in rejecting an applicant's claim, the IJ should "consider all the evidence in the record that has probative value").
Third, it is not clear that substantial evidence supports the agency's finding that Radoni failed to establish past persecution. Radoni's claim that the threats and assaults he experienced evidenced political persecution had to be considered in light of his brother's murder. While Radoni claimed that this murder was in retaliation for his brother's political opposition, conduct in which Radoni had also participated, the IJ noted that reports cited robbery as the motive for murder. To the extent the IJ concluded that the newspaper would have no reason to disguise any political motivation for the murder because it correctly identified the victim as an officer of the national guard and background materials indicated that Albania's constitution provided freedom of speech, the reasoning is inadequate, particularly in the absence of any consideration of the part of the 2003 State Department report on Albania indicating "serious, fundamental problems with the use of the media for political purposes," including "edit[ing] news stories to serve their own political and economic interests."See Xiao Ji Chen v. United States Dep't of Justice, 471 F.3d at 341; Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir. 2003).
To the extent the IJ found that Radoni failed to adequately corroborate his claim that the newspaper covered up the political motive behind his brother's death, he was required to identify the evidence that Radoni would have been required to submit. See Diallo v. INS, 232 F.3d 279, 290 (2d Cir. 2000) (emphasizing that before denying claim solely based on applicant's failure to provide corroborating evidence, agency must "explain specifically, either in its decision or otherwise in the record: (1) why it is reasonable under the BIA's standards to expect such corroboration; and (2) why [applicant's] proffered explanations for the lack of such corroboration are insufficient").
Fourth, the IJ failed to address other evidence corroborative of Radoni's claim that his brother's death was politically motivated. See generally Shou Yung Guo v. Gonzales, 463 F.3d 109, 115 (2d Cir. 2006). These included the statement of a family friend who reported frequent threats to Radoni's brother demanding that he resign his position in the political opposition, as well as a journalist's statement verifying that Radoni's brother had come to her newspaper's offices a few days before his murder, which was consistent with Radoni's claim that his brother was killed because he was about to disclose corruption in government.
Fifth, to the extent the IJ found Radoni's claim of persecution undermined by his failure to apply for asylum during his 2003 visit to the United States, the IJ was required to at least address Radoni's explanation that family obligations and young children prevented him from doing so. See Cao He Lin v. United States Dep't of Justice, 428 F.3d at 403 (emphasizing that IJ is not required to credit applicant's explanations, even if plausible, but is required to consider them); see also Uwais v. Att'y Gen., 478 F.3d 513, 519 (2d Cir. 2007) (observing that decision "to leave one's friends, family, and country forever . . . to seek asylum is a process that . . . is personal, inscrutable, and dynamic").
Sixth, although the IJ found that the 2004 incident in which Radoni was hit on the head with a rifle, "even coupled with the other incidents," did not rise to the level of persecution, it is not clear that the agency would reach the same conclusion if it were to find that Radoni's brother's murder was politically motivated.
In sum, because we cannot confidently predict that the agency would adhere to the same decision absent the defects discussed, we cannot conclude that a denial based on waiver avoids manifest injustice. Accordingly, we remand this case for further consideration. See Gonzales v. Thomas, 547 U.S. 183, 186 (2006) (finding that when the agency's analysis is lacking, "the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation" (citation omitted)). We need not reach Radoni's argument that the agency failed to consider whether he should be granted asylum for humanitarian reasons.
For the foregoing reasons, the petition for review is DENIED, in part, and GRANTED, in part, the decision of the BIA is VACATED, and the case REMANDED for further proceedings consistent with this order. As we have 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 DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(d)(1).