[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-12706 ELEVENTH CIRCUIT
JUNE 3, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
Agency Nos. A079-474-804,
A079-474-951
GAC GJOKA,
VERA GJOKA,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(June 3, 2010)
Before EDMONDSON, CARNES and ANDERSON, Circuit Judges.
PER CURIAM:
Gac Gjoka, a native and citizen of Albania, petitions for review of a decision
by the Board of Immigration Appeals that affirmed an Immigration Judge’s denial
of his application for asylum, 8 U.S.C. § 1158(a)(1); withholding of removal, 8
U.S.C. § 1231(b)(3); and relief under the United Nations Convention Against
Torture. Gjoka contends that the Board erred in finding that he failed to establish
past persecution and that, even if he had, evidence in the record rebutted a well-
founded fear of future persecution.1
I.
“When the BIA issues a decision, we review the BIA’s decision, except to
the extent that the BIA has expressly adopted the IJ’s decision.” Niftaliev v. U.S.
Att’y Gen., 504 F.3d 1211, 1215 (11th Cir. 2007) (internal quotation marks
omitted). “To the extent that the BIA adopts the IJ’s reasoning, we review the IJ’s
decision as well.” Mehmeti v. U.S. Att’y Gen., 572 F.3d 1196, 1199 (11th Cir.
2009). Because the Board adopted the Immigration Judge’s reasoning, we will
review both decisions. “We review de novo the conclusions of law by the Board
and Immigration Judge, but we review findings of fact for substantial evidence to
support them.” Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1350–51 (11th
Cir. 2009).
1
Gjoka did not challenge the denial of his request for CAT relief before the BIA and
does not challenge it before us. That claim is abandoned. See Sepulveda v. U.S. Att’y Gen., 401
F.3d 1226, 1228 n.2 (11th Cir. 2005) (noting that an appellant’s failure to offer argument on an
issue constitutes abandonment of that issue).
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“Our review for substantial evidence is highly deferential.” Id. at 1351. We
view the evidence in the record “in the light most favorable to the agency’s
decision and draw all reasonable inferences in favor of that decision.” Id. We may
not “re-weigh the evidence from scratch” and must affirm the agency’s decision if
“it is supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Id. (internal quotation marks and alterations omitted).
“Under this highly deferential standard of review, the [agency’s] decision can be
reversed only if the evidence compels a reasonable fact finder to find otherwise.”
Zheng v. U.S. Att’y Gen., 451 F.3d 1287, 1289–90 (11th Cir. 2006) (internal
quotation marks omitted). “The mere fact that the record may support a contrary
conclusion is not enough to justify a reversal of the administrative findings.”
Kazemzadeh, 577 F.3d at 1351.
The Attorney General or Secretary of Homeland Security has discretion to
grant asylum to any alien determined to be a “refugee,” as defined in 8 U.S.C.
§ 1101(a)(42)(A). See 8 U.S.C. § 1158(b)(1)(A). A refugee is defined as:
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.
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8 U.S.C. § 1101(a)(42)(A). The burden of proof is on the applicant to establish
that [he] is a refugee.” Kazemzadeh, 577 F.3d at 1351 (internal quotation marks
omitted). An applicant establishes asylum based on past persecution by proving
“(1) that [he] was persecuted, and (2) that the persecution was on account of a
protected ground.” Silva v. United States Att’y Gen., 448 F.3d 1229, 1236 (11th
Cir. 2006). An applicant who establishes past persecution is presumed to have a
well-founded fear of future persecution. See Kazemzadeh, 577 F.3d at 1351.
“That presumption may be rebutted if an asylum officer or immigration judge
makes either of two findings: (1) that ‘[t]here has been a fundamental change in
circumstances such that the applicant no longer has a well-founded fear of
persecution’; or (2) ‘[t]he applicant could avoid future persecution by relocating to
another part of the applicant’s country of nationality . . . and under all the
circumstances, it would be reasonable to expect the applicant to do so.’ ” Id. at
1351–52 (quoting 8 C.F.R. § 1208.13(b)(1)(i)(A) & (B)). The government has the
burden of proving, by a preponderance of the evidence, either changed
circumstances or the ability to avoid persecution by relocating. See id. at 1352.
An alien is entitled to withholding of removal if he can demonstrate that it is
more likely than not that his “life or freedom would be threatened in [the proposed
country of removal] because of the alien’s race, religion, nationality, membership
in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A); 8
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C.F.R. § 1208.16(b). “Where an applicant is unable to meet the ‘well-founded
fear’ standard of asylum, he is generally precluded from qualifying for either
asylum or withholding of [removal].” Kazemzadeh, 577 F.3d at 1352 (internal
quotation marks omitted).
II.
Gjoka contends that the Board erred in concluding that he failed to
demonstrate past persecution based on his membership in the Democratic Party.
We do not need to decide that issue because the record supports the Board’s
determination that changed country conditions negate any presumption that Gjoka
had a well-founded fear of future persecution. The 2006 Country Report indicated
that the Democratic Party took control of Parliament in 2005 and that Albania’s
Prime Minister is a member of that party. The report also stated that “there were
no reports of politically motivated disappearances” and “no reports that the
government or its agents committed arbitrary or unlawful killings.” The 2006
Country Profile indicated that “there have been no outbreaks of political violence
[in Albania] since 1998, and the available evidence suggests that neither the
Government nor the major political parties engage in policies of abuse or coercion
against their political opponents.” Although Grjoka contends otherwise, the
Immigration Judge’s reliance on those reports was proper. See Djonda v. U.S.
Att’y Gen., 514 F.3d 1168, 1175 (11th Cir. 2008) (noting that the BIA may rely
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heavily on country reports because the State Department is the most appropriate
resource on foreign nations’ political conditions); see also Mehmeti, 572 F.3d at
1200 (concluding that substantial evidence supported the BIA’s determination that
changed country conditions in Albania negated the presumption that the applicant
had a well-founded fear of future persecution based on his membership in the
Democratic Party). Because Gjoka cannot meet the “well-founded fear” standard
for asylum, he also cannot satisfy the standard for withholding of removal. See
Kazemzadeh, 577 F.3d at 1352. Accordingly, we deny his petition.
PETITION DENIED.
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