Mustafa v. Gonzales

*Pursuant to 5TH CIR. R. 47.5 the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
May 25, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-60389
Summary Calendar
EDUART MUSTAFA,
Petitioner,
versus
ALBERTO R. GONZALEZ, U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A95 218 798
Before GARWOOD, JOLLY and CLEMENT, Circuit Judges.
PER CURIAM:*
Eduart Mustafa is a native and citizen of Albania. The
Immigration and Naturalization Service (INS) began removal
proceedings against Mustafa in January of 2000, contending that he
was subject to removal under 8 U.S.C. § 1182(a)(6)(A)(i) as an
alien present in the United States without having been admitted or
paroled. Mustafa conceded removability on this ground, but applied

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for asylum under 8 U.S.C. § 1158(a), withholding of removal under
8 U.S.C. § 1231(b)(3), and withholding of removal under the United
Nations Convention Against Torture (CAT). The basis of his
application was fear of persecution by the Albanian government
because of his association with the Balli Kombetar Party. The
Immigration Judge (IJ) denied this relief on June 24, 2002 and this
decision was summarily affirmed by the Board of Immigration Appeals
(BIA) on November 10, 2003. Mustafa did not appeal to this court.
He did, however, file a motion with the BIA on December 30,
2003 asking that his case be reopened. Mustafa asserted a new
factual basis (arising after the IJ hearing) for asylum,
withholding of removal under 8 U.S.C. § 1231(b)(3), and withholding
of removal under the CAT. He alleged in an affidavit that he was
afraid of being killed in Albania by a man named Bill Belini
(Belini). Mustafa stated that he worked for Belini in the United
States. Mustafa further alleged that the United States government
arrested Belini and issued a material witness warrant for Edmund
Demiraj, who is Mustafa’s cousin and brother-in-law as well as a
former employee of Belini. Mustafa does not specify in his motion
to reopen the nature of the charges against Belini. According to
Mustafa, Belini violated the terms of his bond and fled to his
native Albania where he abducted and shot Demiraj, who, for reasons
Mustafa does not explain, was also in Albania. Demiraj returned to
the United States illegally but was granted asylum and withholding

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of removal by an IJ in Texas on the basis of his fear of being
killed by Belini. Mustafa contends that Belini will try to kill
him too if he is removed to Albania because Belini has announced
his intention to retaliate against Demiraj’s family.
On April 6, 2004, the BIA denied Mustafa’s motion to reopen on
the ground that he failed under 8 C.F.R. § 1003.2(c) to introduce
evidence sufficient to establish that he would not be protected
from Belini by the Albanian authorities and he had not met his
burden of showing that he had new evidence that “would likely
change the result in the case” if it were reopened. On May 4,
2004, Mustafa appealed to this court from the BIA’s April 6, 2004
decision denying his motion to reopen.
Reopening a concluded immigration proceeding is strongly
disfavored and Mustafa bears a considerable burden. INS v. Abudu,
108 S. Ct. 904, 913-914 (1988). We apply a highly deferential
abuse of discretion standard to a denial of a motion to reopen.
Lara v. E.M. Trominski, 216 F.3d 487, 496 (5th Cir. 2000). We will
affirm a decision of the BIA “so long as it is not capricious,
racially invidious, utterly without foundation in the evidence, or
otherwise so aberrational that it is arbitrary rather than the
result of any perceptible rational approach.” Osuchukwu v. INS,
744 F.2d 1136, 1141-42 (5th Cir. 1984); see also INS v. Doherty,
112 S. Ct. 719, 724 (1992) (stating that the authority to reopen is
regulatory, not statutory, and the “regulation with which we deal

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1 This assumes arguendo that Mustafa is being persecuted by
Belini because he is a member of Demiraj’s family and that
Demiraj’s family is a cognizable social group.
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here, [8 C.F.R. § 1003.2(c)], is couched solely in negative terms;
it requires that under certain circumstances a motion to reopen be
denied, but does not specify the conditions under which it shall be
granted[.]”).
To prevail on his claim for asylum, Mustafa would have to
prove that is unwilling to return to Albania because of “a well-
founded fear of persecution...on account of race, religion,
nationality, membership in a particular social group, or political
opinion[.]” 8 C.F.R. § 1208.13(b)(2); 8 U.S.C. § 1101(a)(42)
(defining “refugee”). Though persecution generally refers to
malfeasance by authorities, the BIA does recognize that persecution
can occur at the hands of private persons when the government is
wholly unable or unwilling to intervene. Abdebisi v. INS, 952 F.2d
910, 913-14 (5th Cir. 1992). At minimum, therefore, Mustafa would
have to prove in a new hearing that the Albanian government would
not or could not protect him from Belini.1
Mustafa’s motion to reopen was required to supply affidavits
or other evidentiary material that he intended to use in a new
hearing. Guevara v. INS, 786 F.2d 1242, 1247 (5th Cir. 1986); 8
U.S.C. § 1229a(c)(6)(B); 8 C.F.R. § 1003.2(c)(1). In its decision
not to reopen his case, the BIA specifically found that Mustafa had
not adduced evidence likely to demonstrate that the Albanian

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2 The Attorney General in fact retains the authority under
the immigration regulations to deny a motion to reopen even when
the petitioner has set forth a prima facie case. 8 C.F.R. §
1003.2(a). It follows a fortiori that the Attorney General is
also free to deny a motion when the petitioner has failed to make
even this basic showing.
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authorities would not or could not protect him from Belini. This
conclusion was not arbitrary. The material submitted by Mustafa
does not establish who Belini is or give any reason to suppose that
he is operating with impunity outside Albanian law. Though the
various documents describe a troubling pattern of human rights
abuses and systemic corruption in Albania, this does not establish
that a man named Bill Belini is free to shoot Mustafa on the basis
of a vendetta he has against the latter’s cousin, Edmund Demiraj.
In failing to furnish any credible evidence that Belini operates
outside the law with the acquiescence of the Albanian government,
Mustafa has failed to make out a prima facie case for asylum. It
is well-settled that a deficiency in this respect is a proper basis
for denying a motion to reopen.2 Doherty, 112 S. Ct. at 725
(citing Abudu, supra); Pritchett v. INS, 993 F.2d 80, 83 (5th Cir.
1993).
Mustafa did not brief the withholding of removal issue under
either 8 U.S.C. § 1231(b)(3) or the CAT, and such claims are
accordingly waived. Rodriguez v. INS, 9 F.3d 408, 414 n. 15 (5th
Cir. 1993). In any case, the standard for withholding of removal
under 8 U.S.C. § 1231(b)(3) is a “clear probability” of

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persecution, which is a more demanding evidentiary standard than
that applied to an asylum petition. Efe v. Ashcroft, 293 F.3d 899,
906 (5th Cir. 2002). This standard also applies to the CAT. 8
C.F.R. § 1208.16(c). The failure of Mustafa’s asylum petition is,
therefore, fatal to his claims for withholding of removal under
either 8 U.S.C. § 1231(b)(3) or the CAT.
The decision of the BIA is
AFFIRMED.

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