                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-7-2005

Germenji v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1531




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                                                              NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                       No:04-1531

                             SILVANA GERMENJI;
                         ROXHERSI GERMENJI, Minor Child,

                                              Petitioners

                                              v.

                               ATTORNEY GENERAL
                        OF THE UNITED STATES OF AMERICA,

               On Appeal from the Immigration and Naturalization Service
                              District No: A78-191-374

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     May 5, 2005

                 Before: McKee, Smith, Van Antwerpen, Circuit Judges

                                        OPINION

                                  (Filed: June 7, 2005)

McKee, Circuit Judge.

       Silvana Germenji appeals the decision of the Board of Immigration Appeals for

herself and her minor child. The BIA affirmed the decision of an Immigration Judge

denying their request for asylum and withholding of removal. For the reasons that

follow, we dismiss the petition for review.

       The BIA’s opinion must be upheld if it is supported by substantial evidence on the

                                              1
record. Abdille v. Ashcroft, 242 F.3d 477, 483 (3d Cir. 2001). “Substantial evidence is

more than a mere scintilla and is such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Senathirajah v. INS , 157 F.3d 210 , 216 (3d

Cir. 1998). We will uphold the BIA’s determination “unless any reasonable adjudicator

would be compelled to conclude to the contrary”. 8 U.S.C. §1252 (b)(4)(B).

       An alien moving for asylum or withholding of removal must establish that she is a

“refugee.”8 C.F.R. §208.13(a). “Refugee,” is defined as:

              Any person who is outside any country of such person's
              nationality or, in the case of a person having no nationality, is
              outside any country in which such person last habitually
              resided, and who is unable or unwilling to return to, and is
              unable or unwilling to avail himself or herself of the protection
              of, that country because of persecution or a well-founded fear
              of persecution on account of race, religion, nationality,
              membership in a particular social group, or political opinion.


8 U.S.C. §1101(a)(42)(A).

       The “well founded fear” requirement is satisfied by establishing a subjective fear

supported by an objectively real possibility of persecution upon the return to one’s native

country. INS v. Cardoza-Fonseca, 480 U.S. 421, 430-31(1987). If an alien successfully

demonstrates past persecution, we will presume a well founded fear of future persecution

absent evidence of changed circumstance. However, that presumption is rebuttable. 8

C.F.R. §208.13(b)(1).

       Here, the BIA concluded that Germenji had not satisfied her burden of establishing

                                             2
past persecution because of any protected classification or trait. A.R. 9. The BIA

concluded that petitioners’ evidence did not support the required nexus between the

threats, harassment or attempted kidnaping and Germenji’s political opinion or

membership in a social group. INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992). That

conclusion is supported by substantial evidence.

       Germenji claimed that she suffered past persecution on account of her husband’s

failure to refrain from investigating the perceived irregularities in the tax records of

“Magjik Bingo” and that he was warned that the company had ties to leaders of the

Socialist Party. However, the evidence that Germenji offers in support of her request for

relief is insufficient to connect the mistreatment she suffered upon returning to Albania to

the Albanian government or groups the government either controls or is unable to control.

Rather, it is just as likely that Germenji was accosted and threatened by agents of Magjik

Bingo without instigation of, or inaction by, representatives of the government.

       The BIA’s determination that Germenji did not establish a fear of persecution

based upon family associations (the “social group”) is also supported by substantial

evidence. Germenji’s social group claim hinges on an attack she experienced in August

2000. She testified that one of the attackers yelled, “We warned your husband that we are

watching and that we do no forget anything...Tell him to be careful!” In Fatin v. INS, 12

F.3d 1233, 1238-39 (3d Cir. 1993), this Court adopted the definition of “particular social

group” set out in Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985), wherein the


                                              3
BIA stated that persecution on account of an individual’s “kinship ties”. Here,

Germenji’s testimony seems to establish mistreatment on account of her kinship ties with

her husband. However, as noted, she did not establish a connection between this

mistreatment and the Albanian government or groups the government is unable or

unwilling to control.

       Withholding of removal requires that the applicant demonstrate by a “clear

probability” she will be subject to persecution on account of race, religion, nationality,

membership in a particular social group, or political opinion upon return to her native

country. INS v. Stevic, 467 U.S. 407, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). Since this is

a higher standard than required for asylum, Germenji’s claim for withholding of relief

falls with her asylum claim. Lukwago v. Ashcroft, 329 F.3d 157, 182 (3d Cir. 2003).

       We therefore must dismiss Germenji’s petition for review.


_________




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