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Flora Gjura v. Eric H. Holder

September 25, 2012

FLORA GJURA, PETITIONER,
v.
ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL,
RESPONDENT.



Per curiam.

11-566-ag

Gjura v. Holder

Argued: September 14, 2012

Before: POOLER, WESLEY, LOHIER, Circuit Judges.

Flora Gjura, a native and citizen of Albania, seeks review of a January 31, 2011, order of the Board of Immigration Appeals reversing the September 9, 2008, decision of Immigration Judge Terry A. Bain, which granted her application for asylum, withholding of removal, and relief under the Convention Against Torture. Because we find young, unmarried Albanian women do not constitute a social group for asylum purposes, the petition for review is denied. Denied.

Flora Gjura, a native and citizen of Albania, seeks review of a January 31, 2011 order of the Board of Immigration Appeals reversing the September 9, 2008 decision of Immigration Judge ("IJ") Terry A. Bain, which granted her application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). Because we find young, unmarried Albanian women do not constitute a social group for asylum purposes, the petition for review is denied.

BACKGROUND

Gjura, a native and citizen of Albania, entered the United States on December 25, 2004, under the Visa Waiver Program by using a fraudulent Italian passport and was paroled into the United States. At the time of entry, Gjura admitted to airport officials that she used a fraudulent passport and said she was entering the United States because her parents were handicapped and she wanted to help them. Gjura subsequently was referred to an IJ for an "asylum only" hearing. In 2005, Gjura filed an application for asylum, withholding of removal, and CAT relief, asserting that the Albanian mafia had twice attempted to kidnap and force her into prostitution, and that she feared she, like her sister and cousin, would be kidnapped and killed if she returned to

Albania.

After a 2008 merits hearing, the IJ granted Gjura asylum, finding she testified credibly and belonged to a particular social group -- "young, unmarried Albanian women" -- at risk of being kidnapped and forced into prostitution. The Department of Homeland Security ("DHS") filed an appeal, and in January 2011, the BIA reversed the IJ's decision. In re Flora Gjura, No. A098 559 959 (B.I.A. Jan. 31, 2011), rev'g No. A098 559 959 (Immig. Ct. N.Y. City Sept. 9, 2008). The BIA found that the purported social group was "too amorphous" to constitute a protected ground, noting the lack of evidence showing that young, unmarried Albanian women were targeted more than children and married Albanian women. The BIA also found that Gjura failed to show past persecution or a nexus to a protected ground because the evidence did not establish that (1) the attacks rose to the level of persecution, (2) the attacks were for the purpose of human trafficking, and (3) the government was unwilling to provide protection. Based on Gjura's failure to establish these elements of eligibility, the BIA concluded that Gjura demonstrated neither a well-founded fear of being abducted into a prostitution ring nor eligibility for withholding of removal or CAT relief. This appeal followed.

ANALYSIS

Under the circumstances of this case, we review only the decision of the BIA. See Aliyev v. Mukasey, 549 F.3d 111, 115 (2d Cir. 2008) (quoting Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005)) (reviewing the BIA's decision alone since the BIA "did not adopt the decision of the IJ to any extent"). The applicable standards of review are well established. See 8 U.S.C. § 1252(b)(4)(B) ("administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary"); see also Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008) ("We review de novo questions of law and the application of law to undisputed fact."). Because Gjura does not challenge the denial of CAT relief we address only her asylum and withholding of removal claims.

As an initial matter, Gjura contends that the BIA misapplied the clearly erroneous standard of review. To the contrary, the BIA appropriately applied the de novo standard in reviewing whether she met her burden of establishing eligibility for relief. 8 C.F.R § 1003.1(d)(3)(ii).

Gjura's claim for relief centered on the Albanian mafia's alleged attempts to kidnap and force her into prostitution because she was a young, unmarried Albanian woman. The BIA reasonably found that Gjura failed to establish that she suffered past persecution on account of her membership in a particular social group. See Tao Jiang v. Gonzales, 500 F.3d 137, 141 (2d Cir. 2007) (the BIA's factual findings "are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary"); 8 U.S.C. ยง 1252(b)(4)(B). Although the attempted kidnappings Gjura experienced rose above "mere harassment," the BIA reasonably found that they did not constitute persecution due to their brief duration and the lack of consequent physical injury. Ivanishvili v. U.S. Dep't of ...


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