BIA

Strauss, IJ

A95-476-782

A95-476-783

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER

AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY

OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY

OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR

IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the

Thurgood Marshall United States Courthouse, Foley Square, in the City of New York, on the 15th

day of August, two thousand and six.

PRESENT:

HON. RALPH K. WINTER,

HON. CHESTER J. STRAUB,

HON. ROBERT A. KATZMANN,

Circuit Judges.

Aferdita Kacupaj, Eugert Kacupaj

Petitioners,

-v.- No. 05-4287-ag

NAC

Alberto R. Gonzales, Attorney General,

Respondent.

FOR PETITIONER: Saul C. Brown, New York, New York.

FOR RESPONDENT: Stephen J. Murphy, United States Attorney for the Eastern District

of Michigan, Susan El Gillooly, Assistant United States Attorney,

Detroit, Michigan.

UPON DUE CONSIDERATION of this petition for review of a decision of the Board of

Immigration Appeals ("BIA"), it is hereby ORDERED, ADJUDGED, AND DECREED, that the

petition for review is GRANTED, the BIA's order is VACATED, and the case is REMANDED to the BIA for further proceedings in accordance with this decision.

Aferdita Kacupaj and Eugert Kacupaj (A95-476-782, A95-476-783), mother and son, through counsel, petition for review of a Board of Immigration Appeals ("BIA") decision that dismissed their appeal from Immigration Judge ("IJ") Michael W. Strauss's denial of their claims for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT").

The BIA determined that, even assuming the credibility of Ardian Kacupaj--Aferdita's husband and Eugert's father--there had been a fundamental change in conditions in Albania sufficient to rebut any presumption of persecution.1 We assume the parties' familiarity with the underlying facts and procedural history.

Under the regulations, the BIA does not have the authority to engage in factfinding (except for taking administrative notice of commonly known facts). See 8 C.F.R. § 1003.1(d)(3)(i)(iv); Xian Tuan Ye v. DHS, 446 F.3d 289, 296 (2d Cir. 2006). Although petitioners do not raise it in their brief, the critical issue in this case is whether the BIA did engage in fact-finding in concluding that Kacupaj lacks a well-founded fear of persecution. We believe it did and we will reach this issue, despite petitioners' failure to raise it, in order to avoid manifest injustice. See, e.g., United States v. Babwah, 972 F.2d 30, 34-35 (2d Cir. 1992).

Specifically, the BIA erred when it made an independent determination regarding changed country conditions in Albania. That is, whereas the IJ found that Kacupaj failed to establish eligibility for relief because he was incredible regarding the beatings he and his wife suffered in 2000, the BIA assumed credibility but denied his, his wife's, and his son's claims 1 Ardian Kacup a j sep a r a t e l y p e t i t i o n e d this Court for review of the BIA's dec i s i o n reg a r d i n g his claim . His c a s e w a s filed un d e r D o c k e t Numbe r 05-429 4 . because it found that, due to fundamentally changed in circumstances in Albania, Kacupaj no longer had a well-founded fear of persecution. In reaching this determination, the BIA relied on the 2002 Country Report, which the IJ briefly discussed in his decision but about which the IJ made no findings. The BIA also erred when it made independent determinations regarding Kacupaj's eligibility for humanitarian relief under 8 C.F.R. § 1208.13(b)(1)(iii)(A) and Matter of Chen, 20 I. & N. Dec. 16 (BIA 1989), and under 8 C.F.R. § 1208.13(b)(1)(iii)(B) (an applicant may be granted asylum if "[t]he applicant has established that there is a reasonable possibility that he or she may suffer other serious harm upon removal to [the] country.").

Upon remand, the agency may consider the evidence on which the BIA relied, as well as evidence of the return to power of the Democratic Party in Albania through general elections in July 2005. See Latifi v. Gonzales, 430 F.3d 103, 106 n.1 (2d Cir. 2005). However, it must remand to the IJ if it wishes to make findings based on this evidence. Since petitioners do not raise their CAT claim in their brief to this Court, that claim is waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 542 n.1, 546 n.7 (2d Cir. 2005).

For the foregoing reasons, we GRANT the petition, VACATE the BIA's decision, and REMAND to the BIA for further proceedings consistent with this decision. Having completed our review, petitioners' pending motion for a stay of removal in this petition is DENIED as moot.

FOR THE COURT: Roseann B. MacKechnie, Clerk By: