Alibasic v. Mukasey, 2nd Cir. 10/17/08 (Docket No. 06-4046-ag)

POOLER, Hall, Gleeson

The 2d Cir. reversed the Board's decision vacating the IJ's asylum grant and remanded to the Board. Petitioner, an Albanian Muslim from Serbia and Montenegro, was granted asylum by IJ Margaret McManus.  Citing the 2004 Country Report and an April 2004 article that  discussed a rapid deterioration in relations between Serbs and the major ethnic minorities, the IJ found that, despite some improvements, the situation in Serbia and Montenegro could get worse.  Therefore, Petitioner, who had experienced problems in the past, had a well-founded fear of persecution. The gvt appealed, and in August 2006 the Board reversed, finding based on the 2004 Country Report that Serbia and Montenegro had undergone "some fundamental changes," including that Milosevic was no longer in power and the county was now policed by a multi-ethnic police force.  Therefore, the Board found that the presumption of future persecution had been overcome. 

On appeal, the 2d Cir. considered three issues: (1) jurisdiction, (2) the merits of the asylum claim, (3) relief.

(1) The gvt filed a motion to dismiss, arguing that b/c the Board had remanded to IJ to consdier any available relief including voluntary departure, the Board's decision was not a final order. The court rejected this argument: under Lazo v. Gonzales, 462 F.3d 53 (2d Cir. 2006), the statutory requirement of an order of removal is satisfied either when the IJ orders removal or concludes that an alien is removable. The IJ's finding Petitioner removable based on being EWI afforded the court jurisdiction over the instant appeal. Moreover, the 2nd Cir. joined the 4th, 6th, 9th, and 11th Circuits in holding that the Board's order remanding to the IJ for consideration of VD did not render the Board's decision non-final.  Therefore, it was proper for Petitioner to file the PFR without waiting for the IJ's decision regarding VD.

(2)  The court, citing Niang v. Mukasey, 511 F.3d 138 (2d Cir. 2007), found that the Board's determination that changed country conditions warranted a denial of asylum contained insufficient reasoning: 

In our case, the BIA likewise identifies no “indisputable historical event” which compels finding that the Alibasic will no longer face persecution should he return to his native country. Rather, “relying on the very same record evidence” as did the IJ, the BIA reached a dramatically different assessment than the IJ regarding country conditions in Serbia and Montenegro. Although the BIA’s support for its assessment is more than “a one-line statement,” it is not much
more. We therefore do not think that the BIA has demonstrated that its decision is supported by “substantial evidence in the record,” especially because it does not even address the evidence of
continued persecution of Serbian minorities identified by the IJ in supporting materials submitted by Alibasic and in the 2004 Country Report itself .... We therefore conclude that the BIA failed “to
conduct an individualized analysis of whether the changes in conditions in [Alibasic’s homeland] were so fundamental that they are sufficient to rebut the presumption that [Alibasic’s] fear of persecution is well-founded.”

 

(3) The court thus vacated the Board's decision and remanded for the Board to conduct a properly thorough review of the record evidence.  The court further asked that the Board be precise in stating the standards it is employing with respect to the IJ's decision.  In addition, the court noted that "history has not stopped in the Balkans" while the asylum application has been pending, as since that time Kosovo has been recognized internationally and Karadzic has been captured.  Therefore, the court noted that the filing of a motion to reopen upon remand in order to supplement the record with "sufficiently current evidence" was particularly appropriate in this case. 

PFR GRANTED, BIA decision VACATED and REMANDED.  

Atty for Petitioner: Michael P. DiRaimondo, DiRaimondo & Masi, LLP, Melville, NY 

Read opinion here 

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Copyright (C) 2007 Alain Georgette / Copyright (C) 2006 Frantisek Hliva. All rights reserved.