Daci v. Gonzales
Daci v. Gonzales
Opinion of the Court
SUMMARY ORDER
Perparim Daci, through counsel, petitions for review of a decision of the Board of Immigration Appeals (“BIA”) reversing the decision of Immigration Judge (“IJ”) Sarah M. Burr’s grant of asylum. We assume the parties’ familiarity with the underlying facts and procedural history of the case.
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, this Court reviews the decision of the IJ as supplemented by the BIA. See Yu Yin Yang v. Gonzales, 431 F.3d 84, 85 (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). This Court reviews the agency’s factual findings, including adverse credibility determinations, 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 Zhou Yun Zhang v. INS, 386 F.3d 66, 73 & n. 7 (2d Cir. 2004). The Court reviews questions of law and the application of law to fact de novo. See Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir. 2003).
In its decision, the BIA agreed with the IJ that Daci’s “credible testimony established” that Daci and his family were forced to abandon their home at gunpoint, and that, on two separate occasions, Daci, his father, and his brother were arrested for their political activities with the Democratic League of Kosovo, interrogated, and brutally beaten, and that on the first occasion, weapons were placed in their mouths as they were being threatened. Unlike the IJ, however, the BIA did “not find compelling humanitarian reasons to grant [Daci’s] application for asylum” pursuant to Matter of Chen, 20 I. & N. Dec. 16,1989 WL 331860 (BIA 1989), and 8 C.F.R. § 1208.13(b)(l)(iii)(A). In its brief to this Court, the government acknowledges that
The government claims in its brief to this Court that “the BIA’s failure to mention [Daci’s] testimony [regarding the poisonous gassing of his school] does not indicate that the BIA failed to consider this incident. Rather, the BIA decision focuses on the more significant incidents of persecution which were specifically directed to the Petitioner and his family. These were the circumstances the IJ had focused on in his [sic] decision. The other mistreatment suffered by [Daci] is less severe, therefore does not add to his cause.” However, without evidence in the BIA’s decision that the agency did, indeed, consider the 1981 imprisonment and beating of Daci’s father — even if it then found the incident did not constitute persecution of Daci under Jorge-Tzoc, 435 F.3d 146 — the poisoning of Daci and his fellow students by Serbian police, and the burning of the family house by Serbian authorities, this Court is unable to review the agency finding. Cf. Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341-42 (2d Cir. 2006). Further, it is difficult to fathom that the poisoning Daci experienced as a teenager when Serbian police gassed his school was not “significant,” or that the arrest and beating of his father and the burning of his family house by the Serbian authorities were “less severe [acts of persecution and] therefore [do] not add to his cause.” We wish to be clear. The decision to grant asylum for humanitarian reasons is a discretionary one. See Matter of Chen, 20 I. & N. Dec. 16, 19, 1989 WL 331860 (BIA 1989) (“[T]here may be cases where the favorable exercise of discretion is warranted for humanitarian reasons even if there is little likelihood of future persecution.”); 8 C.F.R. § 1208.13(b)(l)(iii)(A) (“An applicant ... may be granted asylum, in the exercise of the decision-maker’s discretion, if ... [t]he applicant has demonstrated compelling reasons for being unwilling or unable to return to the country arising out of the severity of past persecution.”). Hence, it may not be subject to review. Cf, e.g., Xiao Ji Chen v. United States Dep’t of Justice, 434 F.3d 144, 149 (2d Cir. 2006). But the failure even to consider data in the record that is directly relevant to that discretionary decision is action outside the discretion of the BIA, and, hence, it is subject to our review.
The BIA also found that, due to changed country conditions in Serbia and Monten
On remand, the agency should determine whether all of the acts of persecution that Daci suffered, considered cumulatively, compel a grant of asylum based on humanitarian reasons under Matter of Chen, 20 I. & N. Dec. at 19-22. See Poradisova, 420 F.3d at 80; 8 C.F.R. § 1208.13(b)(l)(iii)(A). If the agency determines that Daci does not merit a grant of asylum under Matter of Chen, 20 I. & N. Dec. 16,1989 WL 331860, then it should determine whether, based on evidence in the record, there has been a fundamental change in circumstances in Serbia and Montenegro such that Daci no longer has a well-founded fear of persecution in that country. See 8 C.F.R. § 1208.13(b)(l)(i)(A). Because Daci does not raise his CAT claim in his brief to this Court, that claim is waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 542 n. 1, 546 n. 7 (2d Cir. 2005).
For the foregoing reasons, we GRANT the petition, VACATE the BIA’s decision, and REMAND to the BIA for further proceedings consistent with this decision. 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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