United States Court of Appeals For the First Circuit

No. 20-1566

NIKOLIN LUCAJ, RITA LUCAJ, MARIELA LUCAJ, GORDON LUCAJ, LETICIA LUCAJ,

Petitioners,

v.

ROBERT M. WILKINSON, in his official capacity as Acting Attorney General of the United States.

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before

Thompson, Boudin, and Kayatta, Circuit Judges.

Gregory Marotta and Law Office of Gregory Marotta on brief for petitioner. Jeffrey Bossert Clark, Assistant Attorney General, U.S. Department of Justice, Civil Division, John S. Hogan, Assistant Director, U.S. Department of Justice, Office of Immigration Litigation, Brianne Whelan Cohen, Senior Litigation Counsel, U.S. Department of Justice, Civil Division, on brief for respondent.

March 10, 2021 BOUDIN, Circuit Judge. In 2001, the Socialist Party of

Albania won country-wide elections. In October of that year,

Nikolin Lucaj, his wife, and three of his children travelled to

the United States from Albania. He returned to Albania briefly

but reentered the United States on February 10, 2002 and applied

for asylum, arguing that he and his family had been persecuted

because of his support of the Democratic Party in Albania and that

they had a well-founded fear of future persecution.

An asylum officer found that Mr. Lucaj was ineligible

for asylum and ordered Mr. Lucaj and his family to appear in

immigration court. Mr. Lucaj conceded removability and requested

asylum, withholding of removal, and protection under the

Convention Against Torture. On October 23, 2006, the immigration

judge denied his petition after finding that his testimony was

“rather unreliable” and did not prove he was eligible for the

requested relief. The Board of Immigration Appeals ("BIA")

affirmed.

Mr. Lucaj did not appeal that BIA determination.

Instead, Mr. Lucaj asked the BIA to reopen his case and to remand

it to the Immigration Court for a new hearing. That motion was

denied by the BIA, as was his later motion to reconsider reopening

the case (affirmed by this court on appeal). However, Mr. Lucaj

and his family remained in the United States, and on September 7,

2019, Mr. Lucaj once again asked the BIA to reopen his case on the

- 2 - ground that circumstances, including government corruption, had

deteriorated in Albania. The BIA denied his request, and Mr. Lucaj

appealed.

A petitioner seeking to reopen removal proceedings based

on changed country circumstances must first "'introduce new,

material evidence that was not available at the original merits

hearing.'" Bbale v. Lynch,

(1st Cir. 2016)

(quoting Perez v. Holder,

(1st Cir. 2014)). That

evidence "'must demonstrate the intensification or deterioration

of country conditions, not their mere continuation,' and the

petitioner bears the burden of making such showing through a

'convincing demonstration.'" Twum v. Barr,

(1st

Cir. 2019) (quoting Xin Qiang Liu v. Lynch,

(1st

Cir. 2015)). Second, a petitioner must make out a prima facie

case of eligibility for the relief sought.

.

To evaluate whether there has been a material change in

country conditions, the BIA is required to "compare 'the evidence

of country conditions submitted with the motion to those that

existed at the time of the merits hearing,'" Nantume v. Barr,

(1st Cir. 2019) (quoting Liu v. Holder,

(1st Cir. 2013)), including, where necessary, "the evidence

submitted with the petitioner's motion to reopen with the evidence

presented at his merits hearing," Cabas v. Barr,

(1st Cir. 2019). The BIA's decision not to reopen a petitioner's

- 3 - case will stand "unless the petitioner can show that the BIA

committed an error of law or exercised its judgment in an

arbitrary, capricious, or irrational manner." Bbale,

.

To support his case for reopening, Mr. Lucaj submitted

an affidavit complaining in particular about two events that

occurred after his removal proceeding in 2006: The Socialist party

took power in 2013, and then in 2019 the Socialists' corruption

and connections with organized crime deterred the opposition party

from even participating in the 2019 elections. Mr. Lucaj provided,

among other things, the State Department’s 2018 Human Rights Report

on Albania, the Freedom House "Freedom in the World 2018" Report

on Albania, and articles from 2018 and 2019 about corruption in

Albania and the Socialist Party's success in recent elections. We

do not know whether those submissions show materially worsening

conditions for Democratic Party members in Albania, however,

because the BIA refused to compare those reports to available

evidence of conditions from 2006, claiming that Mr. Lucaj had not

"explained how the proffered . . . country condition documentation

show[s] qualitatively different conditions from 2006." Plainly,

though, he did so by pointing out the two cited, post-2006 events

as evidence of changed conditions. The BIA's failure to assess

whether those changes were sufficient was arbitrary and

capricious. See Aponte v. Holder,

(1st Cir. 2012).

- 4 - Therefore, we reverse the decision by the BIA and remand

Mr. Lucaj's case so that the BIA can review available evidence to

examine whether conditions for members of the Democratic Party in

Albania have deteriorated since 2006 and, if so, whether Mr. Lucaj

has established a prima facie case for relief.

It is so ordered.

- 5 -