Floreshe Perkeci, et al v. U.S. Attorney General

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
NOVEMBER 8, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-11381
Non-Argument Calendar
________________________
Agency No. A077-509-649
FLORESHE PERKECI,
ALDO PERKECI,
KRISTJANA PERKECI,
NDUE PERKECI,
lllllllllllllllllllllllllllllllllllllll lPetitioners,
versus
U.S. ATTORNEY GENERAL,
llllllllllllllllllllllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(November 8, 2011)

-- 1 of 8 --

Before CARNES, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Petitioner Floreshe Perkeci seeks review of the Board of Immigration1
Appeals’s (BIA’s) final order affirming the Immigration Judge’s (IJ’s) denial of
her application for asylum and withholding of removal. After review, we deny2
Perkeci’s petition.
I.
Perkeci, a citizen of Albania, entered the United States with her family in
1999 without a valid visa. In 2000, she filed an application with the Department
of Homeland Security seeking asylum, withholding of removal under the
Immigration and Nationality Act (INA), and relief under the United Nations
Convention Against Torture (CAT), based on membership in a particular social
The applications of Ndue, Kristjana, and Aldo Perkeci, Perkeci’s husband and children,1
are derivative of Perkeci’s asylum application. Accordingly, any discussion of Perkeci’s claims
is also applicable to those of her family members.
The BIA also denied Perkeci’s motion to remand her case to the IJ for consideration of2
new documents, and her application for relief under the Convention Against Torture (CAT).
Perkeci does not challenge the denial of her CAT claim at all, and she only mentions the new
documents she sought to introduce once, claiming that the BIA “ignored” them. Because
Perkeci does not clearly assert these challenges before this court, she has abandoned these claims.
See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (noting that passing
references to issues are insufficient to raise a claim for appeal).
2

-- 2 of 8 --

group, religion, and political opinion. Perkeci alleged that her family had a well-3
founded fear of persecution in Albania because the family was the target of a
“blood feud.” According to Perkeci, in Albanian culture, if a person kills another,
the victim’s family has the right to kill a male member of the perpetrator’s family.
At a hearing before an IJ in 2004, Perkeci testified that her husband and son
were at risk of being killed in Albania because of an ongoing blood feud that
began in 1940 when a member of a neighboring family, Gjet Ndrecca, killed a
member of Perkeci’s husband’s family. She testified that in 1997 she and her
husband received threats from the Ndrecca family and reported the situation to the
police, which did nothing. She also reported the threats to the Albanian
Committee for Reconciliation, which could not persuade the Ndrecca family to
agree to a resolution. The IJ found Perkeci’s testimony credible and granted her
asylum application, concluding that she had a well-founded fear of future
persecution if she returned to Albania because her family constituted a particular
social group targeted by the blood feud.
In 2009, the BIA reversed the IJ’s decision, concluding that although a
“family may, in some contexts, constitute a particular social group” because family
Perkeci did not raise religion or political opinion before the IJ or BIA and does not raise3
them here. She has therefore abandoned these arguments. Sepulveda, 401 F.3d at 1228 n.2.
3

-- 3 of 8 --

membership is an immutable characteristic that indicates a close bond, the Perkeci
family did not constitute a particular social group because no evidence indicated
that any segment of Albanian society other than the Ndrecca family viewed the
Perkeci family as visible or cohesive or sought to harm its members. The BIA
remanded the case to an IJ to permit Perkeci to apply for voluntary departure and
“any other relief” for which she was eligible.
On remand, Perkeci again asserted asylum, withholding of removal, and
CAT claims for relief, arguing that circumstances had changed and that now
women and girls were targeted in blood feuds. In an oral decision, the IJ relied on
the reasoning in the BIA’s 2009 decision and denied Perkeci’s applications.
Perkeci appealed to the BIA, and the BIA adopted and affirmed the IJ’s decision
denying Perkeci’s application for relief. This petition followed.
II.
“We review only the [BIA]’s decision, except to the extent that it expressly
adopts the IJ’s opinion.” Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.
2001). Here, the BIA expressly adopted the IJ’s opinion, so we review the IJ’s
decision as well. We review the IJ’s and the BIA’s legal conclusions de novo and
review factual determinations under the highly deferential substantial evidence
test, affirming the decision “if it is supported by reasonable, substantial, and
4

-- 4 of 8 --

probative evidence on the record considered as a whole.” Id. at 1283-84. We will
only reverse a finding of fact where the record compels it, and not where it merely
supports a contrary conclusion. Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341,
1351 (11th Cir. 2009).
An asylum applicant must meet the INA’s definition of “refugee, 8 U.S.C. §
1158(b)(1), which includes:
any person who is outside any country of such person’s nationality . . .
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). Thus, to meet the definition of “refugee,” the
applicant must, “with specific and credible evidence, demonstrate (1) past
persecution on account of a statutorily listed factor, or (2) a well-founded fear that
the statutorily listed factor will cause future persecution.” Ruiz v. U.S. Att’y Gen.,
440 F.3d 1247, 1257 (11th Cir. 2006) (quotation marks omitted).
Further, to receive withholding of removal, an alien “must show that his life
or freedom would be threatened on account of” one of the statutory factors.
Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003). “An alien
bears the burden of demonstrating that he more-likely-than-not would be
5

-- 5 of 8 --

persecuted or tortured upon his return to the country in question.” Id. This
standard is more stringent than the well-founded fear standard for asylum; thus, if
an applicant is unable to meet the well-founded fear standard he is unable to
qualify for withholding of removal. Najjar, 257 F.3d at 1292-93.
III.
We conclude that the record does not compel reversal of the IJ’s and BIA’s
conclusions that Perkeci failed to show a well-founded fear of future persecution
on account of her membership in a “particular social group.” Whether a group
constitutes a “particular social group” under the INA is a question of law, which
we review de novo, but we also give deference to the BIA’s reasonable
interpretation of the INA. I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999).
We must ask whether the INA “is silent or ambiguous with respect to the specific
issue” at hand and, if so, we must determine “whether the agency’s answer is
based on a permissible construction of the statute.” Chevron, U.S.A., Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984).
The INA is silent as to whether a family targeted by a blood feud may
constitute a “particular social group” eligible for relief. Thus, we must determine
whether the BIA reasonably construed the INA to conclude that the Perkeci
6

-- 6 of 8 --

family, as targets of a blood feud, did not constitute a “particular social group.”
Chevron, 467 U.S. at 843. We hold that the BIA’s construction was reasonable.
In Castillo-Arias v. United States Attorney General, 446 F.3d 1190, 1196-
97 (11th Cir. 2006), we adopted the BIA’s formulation of “particular social group”
set forth in Matter of Acosta, 19 I. & N. Dec. 211 (B.I.A. 1985). Acosta, as
construed by Castillo-Arias, mandates two considerations in determining whether
a group constitutes a “particular social group”: immutability and social visibility
among the country’s society at large. Castillo-Arias, 446 F.3d at 1194, 1197-98.
We emphasized that the category “should not be a ‘catch all’ for all persons
alleging persecution who do not fit elsewhere,” noting that the intent of Congress
was not to permit individuals to obtain relief “by defining their own ‘particular
social group.’” Id. at 1198.
The BIA’s decision in this case is a reasonable application of the principles
set out in Acosta and Castillo-Arias. The BIA found that there was no evidence
showing that the Perkeci family, as targets of a blood feud, were sufficiently
visible to Albanian society as a whole to constitute a “particular social group”
under the INA. The BIA also emphasized that recognizing the Perkeci family as a
particular social group “would be tantamount to defining the group by the instance
of harm that is inflicted against it,” reflecting the same concerns articulated in
7

-- 7 of 8 --

Castillo-Arias. Because the BIA applied the principles set forth in Castillo-Arias
and Acosta, we find that the board’s construction of the INA was permissible.
Accordingly, we deny Perkeci’s petition.
PETITION DENIED.
8

-- 8 of 8 --