Fran Gjokaj v. Eric Holder, Jr.

Filing

OPINION filed : The petition for review is DENIED, decision not for publication. John M. Rogers and Bernice Bouie Donald, Circuit Judges; and Thomas M. Rose (AUTHORING), U.S. District Judge for the Southern District of Ohio, sitting by designation. *A typo in the caption has been corrected.--[Edited 01/14/2016 by CL]

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NOT RECOMMENDED FOR PUBLICATION
File Name: 16a0024n.06
No. 15-3024

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FRAN GJOKAJ,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.

BEFORE:

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FILED
Jan 14, 2016
DEBORAH S. HUNT, Clerk
ON PETITION FOR REVIEW
FROM THE UNITED STATES
BOARD OF IMMIGRATION
APPEALS

ROGERS and DONALD, Circuit Judges; and ROSE, District Judge. *

ROSE, District Judge. Fran Gjokaj petitions for review of a decision of the Board of
Immigration Appeals denying his motion to reopen proceedings for purposes of applying for
political asylum, withholding of removal and relief under the Convention Against Torture based
on changed country conditions. Because the Board did not abuse its discretion in denying
Petitioner’s motion, the Court DENIES the petition for review.
Petitioner was born in Albania in 1964. He arrived to New York City on a B-2 visa with
a singing group on July 1, 1994. Within two months of his arrival, he applied for political
asylum based on alleged family persecution by the Albanian government. The Immigration and
Naturalization Service (“INS”) did not approve the asylum application, but referred it to the
Immigration Court.
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The INS issued an order to show cause commencing deportation

The Honorable Judge Thomas M. Rose, District Judge for the Southern District of Ohio, sitting by designation.

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proceedings, ordering Petitioner to appear on January 26, 1996, and show why he should not be
deported.
Instead, Petitioner moved to Detroit, Michigan. His daughter Eva was born on February
3, 1997 in Warren, Michigan. The deportation hearings were moved to Detroit, where Petitioner
was ordered to be deported in absentia on August 25, 2003. Proceedings were reopened on
September 5, 2003. Petitioner then waited until June 15, 2006 for a final hearing. The day of the
final hearing, Petitioner withdrew his application for asylum and withholding of removal and
was granted one year voluntary departure. When Petitioner arrived at the Immigration and
Customs Enforcement (“ICE”) office on June 14, 2007, however, ICE placed Petitioner under an
Order of Supervision, allowing him to stay in the United States to raise his U.S.-born child.
On December 4, 2011, Petitioner filed a motion to reopen his removal proceedings based
on changed country conditions in Albania under 8 C.F.R. § 1003.2(c)(3)(ii) and 8 U.S.C.
§§ 1208.4(a)(4), 1229a(c)(7)(C)(ii).
The motion to re-open alleges that in 2009 his nephew, Viktor Prendi, killed his own
mother, Dile Prendi, whose maiden name was Gjergji, to punish her for allegedly making
insulting comments about her husband and Viktor’s father, Nikoll Prendi, to friends after his
death. Petitioner alleges that at Dile’s funeral, the Gjergji family declared a blood feud against
Petitioner and his brother Pjeter as heads of the murderer’s family.

Petitioner telephoned

relatives of his deceased sister-in-law and was told by Dile’s brother, Martin Gjergji, not to “set
[] foot” in Albania again. While Viktor was prosecuted for the murder, he is exempt from the
alleged blood feud, as he is a member of the Gjergji family. Pjeter Prendi is now allegedly in
hiding in Greece.

An attempt to reconcile the matter initiated by Petitioner’s mother in

2010 through the state Center for Reconciliation failed in April 2011.

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On January 26, 2012, the immigration judge denied the motion to reopen, explaining that
a motion to reopen must be filed no later than 90 days after the entry of a final order of
deportation, with the exception of a motion based upon a change in country conditions. The
immigration judge found that there was no change in country conditions, as blood feuds had
existed in Albania for centuries. Categorizing the facts Petitioner described as a change in
personal circumstances, the immigration judge denied the motion as time-barred.
The immigration judge noted that Petitioner’s nearly three-year delay in filing the motion to reopen added to the decision not to re-open. The immigration judge also found Petitioner violated
his order of deportation and chided Petitioner for his claim to have an order of supervision.
On February 17, 2012, Petitioner appealed the immigration judge’s decision to the Board
of Immigration Appeals. Besides contending that the blood feud constituted a change in country
conditions, Petitioner explained that he waited to file his motion to reopen because he was trying
to negotiate an end to the feud. He further argued that the finding of untimeliness did not
preclude him from Convention Against Torture protection. Petitioner explained that he did not
deliberately violate a voluntary departure order, because Department of Homeland Security
(“DHS”) officers had placed him under an order of supervision and provided evidence of the
order.
On February 10, 2012 DHS sent an appointment letter requiring Petitioner to report to the
DHS ICE offices “to discuss immigration status,” a meeting at which Petitioner alleges he
expected to be deported. The Board of Immigration Appeals issued an order on February 27,
2014, dismissing Petitioner’s appeal, reasoning that Petitioner had failed to move to reopen
within a reasonable period of time after any change in country conditions occurred. When
Petitioner sought review of that decision in this Court, Gjokaj v. Holder, 14-3246, Respondent

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moved that the matter be remanded to the Board to permit the Board to consider Petitioner’s
proffered reasons for filing the motion to reopen when he did and further moved that a stay of
deportation be entered. We remanded, noting that our decision deprived us of jurisdiction to rule
on the motion to stay deportation.
On remand, the Board observed that there is no 90-day deadline for moving to reopen
after a change in country conditions, and further noted that there is no express requirement that a
motion to reopen based upon a change in country conditions be filed within a reasonable period
of time after that change in country conditions. As to the merits of the petition, however, the
Board noted that a motion to reopen proceedings must meet a “heavy burden” of showing
materially changed country conditions in order to establish a prima facie case for relief or
protection (citing Matter of S-Y-G-, 24 I.&N. Dec. 247, 258 (BIA 2007). The Board emphasized
that the harm Petitioner alleged stemmed from what it characterized as a personal intra-family
matter in Albania rather than persecution motivated by a statutorily protected characteristic.
Additionally, the Board found that Petitioner’s proffered evidence lacked specific and detailed
facts necessary to establish a prima facie case (citing Harchenko v. INS, 379 F.3d 405, 410 (6th
Cir. 2004). Petitioner’s evidence lacked specificity regarding dates, content or manner of any
threats against him. Failing to qualify for the change of country conditions exception, the Board
concluded that the motion to re-open was untimely. Petitioner filed this second petition to
review on January 9, 2015.
“The decision to grant or deny a motion to reopen ... is within the discretion of the
[BIA],” 8 C.F.R. § 1003.2(a), and our review is for an abuse of discretion. Zhang v. Mukasey,
543 F.3d 851, 854 (6th Cir. 2008). The Supreme Court has made clear that the BIA retains broad
discretion to deny such motions. INS v. Doherty, 502 U.S. 314, 323 (1992). Moreover, a motion

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to reopen is analogous to a “motion for a new trial in a criminal case on the basis of newly
discovered evidence, as to which courts have uniformly held that the moving party bears a heavy
burden.” I.N.S. v. Abudu, 485 U.S. 94, 110 (1988).
We have explained that the BIA abuses its discretion if its denial “was made without a
rational explanation, inexplicably departed from established policies, or rested on an
impermissible basis such as invidious discrimination against a particular race or group.” Alizoti
v. Gonzales, 477 F.3d 448, 453 (6th Cir. 2007) (internal quotation marks and citation omitted).
Moreover, the BIA will deny a motion to reopen if the movant cannot establish a prima facie
showing of eligibility for the underlying requested relief. Id. at 451–52.
Thus, Petitioner must show that there is a “reasonable likelihood,” if his case is reopened,
that he will be able to establish “a well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political opinion,” and that the evidence
supporting his motion “was not available and would not have been discovered or presented at the
previous proceeding.” 8 U.S.C. §§ 1229a(c)(7)(C)(ii), 1101(a)(42)(A), 1158(b)(1). In addition,
because Petitioner’s motion is time-barred under 8 U.S.C. § 1229a(c)(7)(C)(i), which requires an
asylum applicant to file a motion to reopen “within 90 days of the date of entry of a final
administrative order of removal[,]” he is required to establish materially changed country
conditions in Albania between the IJ's denial of his asylum application and his motion to reopen.
8 U.S.C. § 1229a(c)(7)(C)(ii).
“Asylum is not available to an alien who fears retribution solely over personal matters.”
Zoarab v. Mukasey, 524 F.3d 777, 781 (6th Cir. 2008). Here, the testimony reflects a blood feud
related to retribution for a murder, which is a personal matter.

More importantly, the

government resolved the case of the murder of Dile Prendi and there is no reason to doubt it

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would address a murder seeking to avenge her death extra-judicially. In this case, the “culture of
blood feud ... is wholly independent of political activity.” Kalaj v. Gonzales, 137 F. App’x. 851,
855 (6th Cir. 2005) (in the context of Albania). See also Locaj v. Gonzales, 219 F. App’x. 483,
485 (6th Cir. 2007) (same), Spaqi v. Holder, 451 F. App'x 548, 554 (6th Cir. 2011), but see id.
560-61 (Moore, J., dissenting in part) (“Because family identity may be common, distinctive, and
immutable, we observed that a particular social group defined by ‘membership in the same
family[ ] is widely recognized’ in this circuit and others as falling within the INA's protection.”)
There is evidence of a vague threat and efforts toward reconciliation. This evidence is
insufficient to establish a prima facie case of eligibility with respect to Petitioner in that it
demonstrated simply a private dispute. Thus, the BIA did not abuse its discretion in concluding
that Petitioner had not established a prima facie case of eligibility for asylum or withholding.
Petitioner also alleges that the BIA violated due process by failing to specifically address
his claims for Convention Against Torture relief and withholding of removal. However, the BIA
had no need to address them because its determination that Petitioner failed to make out a prima
facie case for asylum is dispositive of whether he is eligible for Convention Against Torture
relief or withholding of removal. Petitioner’s Convention Against Torture and withholding of
removal claims fail for the same reason his asylum claim fails.
Because the Board did not abuse its discretion in concluding that Petitioner had not
established a prima facie case, we DENY the petition for review.

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