Ferra v. Mukasey
Ferra v. Mukasey
Opinion of the Court
SUMMARY ORDER
Petitioner Mark Ferra, a native and citizen of Albania, seeks review of a May 7, 2007 order of the BIA affirming the September 22, 2005 decision of Immigration Judge (“IJ”) Gabriel C. Yidela denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Mark Ferro, No. A 97 970 045 (B.I.A. May 7, 2007), aff'g No. A 97 970 045 (Immig. Ct. N.Y. City Sept. 22, 2005). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA summarily affirms the decision of the IJ without issuing an opinion, see 8 C.F.R. § 1003.1(e)(4), this Court reviews the IJ’s decision as the final agency determination. See, e.g., Twum v. INS, 411 F.3d 54, 59 (2d Cir. 2005). This Court reviews 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. U.S. Dep’t of Justice, 494 F.3d 296, 305 (2d Cir. 2007). However, we will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir. 2005). We review de novo questions of law and the application of law to undisputed fact. See, e.g., Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir. 2003).
Even assuming that Ferra was a credible witness, substantial evidence supports the agency’s conclusion that condi
This Court has held that due process requires that an applicant receive “a full and fair hearing which provides a meaningful opportunity to be heard.” Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 104-05 (2d Cir. 2006) (citing Capric v. Ashcroft, 355 F.3d 1075, 1087 (7th Cir. 2004)). Here, the record reflects that Ferra was represented by counsel before the IJ, and that his counsel did not object to the admission of the news articles upon which the IJ relied in making his changed country conditions finding. Moreover, Ferra’s counsel asserted before the IJ that, although the Democratic Party had won the 2005 elections, there had not yet been a transition of power. Thus, although the IJ did not rule in Ferra’s favor, the record indicates that he had the opportunity to challenge the evidence submitted by the Government to show that a change in country conditions had transpired. See id.
Additionally, Ferra was able to challenge the IJ’s September 2005 decision in his brief to the BIA. Ferra now relies upon Burger v. Gonzales, 498 F.3d 131 (2d Cir. 2007), to argue that his due process rights were violated when the IJ relied upon the news articles to find that a change in country conditions had occurred in Albania. That argument is unavailing. In Burger we held that the BIA violated an alien’s due process rights by revoking her grant of asylum on the basis of additional administratively noticed facts indicating a regime change had occurred in Serbia. Id. at 135. Here, in contrast, the BIA affirmed the IJ’s decision in May 2007 without taking administrative notice of any additional facts, and after almost two years had passed since the Democratic Party won control of the Albanian government in the 2005 elections. Cf. Chhetry v. U.S. Dep’t of Justice, 490 F.3d 196 (2d Cir. 2007); Burger, 498 F.3d 131.
This Court has found “there is no doubt that there has been a fundamental change in the political structure and government of Albania, beginning in 1990.” See Hox-hallari v. Gonzales, 468 F.3d 179, 187 (2d Cir. 2006). Under these circumstances, the BIA and IJ reasonably found that the Democratic Party’s return to power supported the conclusion that, even assuming Ferra established past persecution, he no longer has a well-founded fear of persecution in Albania. See id. (affirming the agency’s finding that the Democratic Party’s win in the 2005 Albanian elections constituted a fundamental change rebutting the presumption of a likelihood of persecution in a withholding of removal claim). Because the changed country condition finding is supported by the record and is dispositive of Ferra’s asylum claim, see 8 C.F.R. § 1208.13(b)(l)(i)(A), we need not reach the agency’s additional findings.
For the foregoing reasons, the petition for review is DENIED. 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
Reference
- Full Case Name
- Mark FERRA v. Michael B. MUKASEY, Attorney General
- Cited By
- 1 case
- Status
- Published