Qosaj v. Barr
17-3116
2d Cir.Sep 18, 2019Background:
- Anxhela and her son Enrik, Albanian nationals, entered the U.S. without inspection in 2013 and applied for asylum, withholding, and CAT protection; Enrik is a derivative.
- Anxhela’s husband, Nikolle, is a long‑time local Democratic Party leader who repeatedly opposed local Socialist figures (notably Paulin Sterkaj), triggering harassment.
- From 2005–2015 the family experienced repeated incidents: shots fired at their restaurant, weekly police harassment, multiple arrests and beatings of Nikolle, threats to kidnap/sell Anxhela into prostitution, and direct threats to burn the restaurant and kill their son.
- Anxhela testified credibly before the IJ that she subjectively fears returning; the IJ found her credible but the BIA denied asylum, concluding the fear was not objectively reasonable because the persecutors had not yet seriously harmed Anxhela herself.
- The Second Circuit held the BIA’s standard too exacting, found that credible testimony showing a discernible chance of persecution sufficed to make the fear objectively reasonable, vacated the BIA decision, and remanded for further proceedings (also vacating denials of withholding and CAT relief which rested on the asylum denial).
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Anxhela has an objectively reasonable fear of future persecution for asylum | Credible evidence of cyclical election‑related violence, direct threats to her and her son, shootings at business, and police violence toward her husband make fear objectively reasonable | Agency argued threats were not carried out against Anxhela personally, so fear is unreasonable | Court: Fear objectively reasonable; discernible chance of persecution suffices; vacated denial and remanded |
| Whether agency may require persecutors to have already harmed the claimant personally | Anxhela: requirement is too exacting; risk of future persecution can be shown by threats and attacks on family and pattern of abuse | Gov: lack of personal physical harm to Anxhela undermines objective reasonableness | Court: Agency’s standard was legally erroneous; past attacks on husband and threats to family support objective fear |
| Whether the record shows past persecution | Anxhela: past events (threats, home invasions, assaults on husband) demonstrate persecution | Gov: agency found Anxhela herself not seriously harmed, so no past persecution | Court: Declined to decide; resolved case on future‑fear ground |
| Withholding of removal and CAT protection (derivative on asylum finding) | Denials were based on asylum denial; if asylum reinstated, withholding/CAT require further consideration | Gov: Because asylum fails, withholding and CAT fail as a fortiori conclusion | Court: Vacated withholding and CAT denials and remanded for further consideration |
Key Cases Cited
- Huo Qiang Chen v. Holder, 773 F.3d 396 (2d Cir. 2014) (standard for well‑founded fear and appellate review explained)
- Guan Shan Liao v. U.S. Dep’t of Justice, 293 F.3d 61 (2d Cir. 2002) (recognizes that even improbable persecution can support asylum if reasonable)
- Tambadou v. Gonzales, 446 F.3d 298 (2d Cir. 2006) (‘‘slight, though discernible, chance’’ standard for well‑founded fear)
- I.N.S. v. Cardoza‑Fonseca, 480 U.S. 421 (1987) (defines well‑founded fear standard for asylum)
- Flores Anyosa v. Whitaker, [citation="758 F. App'x 88"] (2d Cir. 2018) (rejected agency’s overly exacting standard where threats had not yet been carried out)
- Carranza‑Hernandez v. I.N.S., 12 F.3d 4 (2d Cir. 1993) (reasonable‑person perspective for fear assessment)