On Petition for Review of an Order of the United States Department of Justice Board of Immigration Appeals (BIA 1:A078-275-693) Immigration Judge: Honorable Miriam Mills
The opinion of the court was delivered by: Jordan, Circuit Judge.
Before: JORDAN, GREENAWAY, JR. and STAPLETON, Circuit Judges.
Tonin Pllumi ("Pllumi")*fn1 is a native and citizen of Albania who entered the United States illegally and has been found removable pursuant to § 212(a)(6)(A)(i) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(a)(6)(A)(i). Pllumi has filed a petition for review based on the denial by the Board of Immigration Appeals ("BIA") of his motion asking the BIA to reopen his immigration proceedings and reconsider its decision declining to grant him asylum. The BIA denied his motion as untimely and chose not to exercise its authority to reopen the case sua sponte. Pllumi claims that the decision not to reopen requires remand because the BIA abused its discretion in determining that he had failed to demonstrate changed country conditions, and because the BIA predicated its refusal to reopen on the erroneous belief that healthcare concerns cannot be a basis for asylum. Although we conclude that the first of those arguments is meritless, there may be merit in the second. Because the basis upon which the BIA declined to exercise its authority to reopen sua sponte is unclear, we will grant the petition for review and remand so that the BIA can clarify its decision.
Pllumi filed his original application for asylum and withholding of removal on June 19, 2002. In 2005, he supplemented that application and added a claim under the Convention Against Torture ("CAT"). In support of his application, Pllumi asserted that he had suffered persecution because of his active support of Albania's Democratic Party and because he is Catholic. Further, Pllumi alleged that he feared he would again be persecuted for his political and religious beliefs if he were returned to Albania. Ultimately, the Immigration Judge ("IJ") denied him all relief, holding that Pllumi had failed to establish past persecution or a well-founded fear of future persecution.*fn2
Pllumi appealed that decision and, on June 28, 2007, the BIA upheld the IJ's decision, concluding that, even if Pllumi were credible, he had not established a well-founded fear of persecution and thus had failed to establish his eligibility for relief. In its decision, the BIA also determined that Pllumi was ineligible for humanitarian asylum under either subsection (A) or (B) of 8 C.F.R. § 1208.13(b)(1)(iii) because, first, any persecution he had suffered in the past was not so severe as to constitute a "compelling reason" under subsection (A) for Pllumi to be unwilling or unable to return to his home country and, second, he had failed to establish that, as required by subsection (B), he would be subject to "other serious harm" upon removal. Because Pllumi had not established asylum eligibility, it followed that he had "also failed to satisfy the higher burden of proof required for withholding of removal." (AR at 127.) Additionally, the BIA held that Pllumi did not qualify for CAT protection because he had failed to establish that it was more likely than not he would be tortured upon return to Albania.
On September 17, 2009, Pllumi filed the motion that is the subject of this petition for review. He argued that, based upon evidence that he would suffer serious harm upon removal, the BIA should reopen his immigration proceedings and reconsider its prior decision. Specifically, Pllumi argued that he is entitled to humanitarian asylum because, regardless of whether he showed he had been or would be persecuted, he would suffer "other serious harm" if he were sent back to Albania because he would have to rely on Albania's healthcare system, which he says is poorer than the United States' system and insufficient to treat severe injuries he sustained in a hit-and-run car accident. He contended that the harm he faced from substandard medical care warranted the BIA's exercise of its authority to sua sponte reopen proceedings, even if his motion to reopen was deemed untimely. Pllumi also argued that the BIA should reopen his proceedings based on changed country conditions in Albania.*fn3
On October 30, 2009, the BIA denied Pllumi's motion to reopen and reconsider, holding that it was untimely.*fn4 As to Pllumi's argument of harm from substandard healthcare, the BIA said:
Pllumi's "concerns about his future healthcare on his return to Albania are not relevant to his persecution claim. We separately note that the respondent may address a request for humanitarian parole for medical treatment to the DHS, as requests for deferred action are within the jurisdiction of DHS, not the Immigration Courts or this Board." (AR at 4.)The BIA concluded that Pllumi had "not presented an exceptional situation which would warrant reopening" and declined to exercise its authority to reopen his case sua sponte.
Pllumi has petitioned for review of the BIA's decision that he failed to demonstrate changed country conditions such that he would be eligible for reopening under 8 C.F.R. § 1003.2(c)(3)(ii). Alternatively, he contends that his petition should be granted because the BIA's ...