NAKO v. Holder

United States Court of Appeals
For the First Circuit

No. 09-2351

SOKRAT KRISTO NAKO, KOZET FILIPI, KRISTI SOKRAT NAKO,

Petitioners,

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS

Before

Lynch, Chief Judge,
Howard and Thompson, Circuit Judges.

Andrew P. Johnson was on brief for petitioner.
Monica G. Antoun, Trial Attorney, Office of Immigration
Litigation, Shelley R. Goad, Assistant Director, and Tony West,
Assistant Attorney General, Civil Division, were on brief for
respondent.

July 7, 2010
 LYNCH, Chief Judge. Petitioners Sokrat Nako, his wife

Kozet Filipi, and his son Kristi, Albanian nationals, petition for

review of a final order of the Board of Immigration Appeals (BIA),

which upheld an Immigration Judge's (IJ) denial of their request

for asylum, withholding of removal, and protection under the

Convention Against Torture (CAT). The IJ denied their petition,

inter alia, because even assuming Nako had established a well-

founded fear of future persecution based on past political

persecution before he left Albania in 2001, circumstances in

Albania since had so fundamentally changed that this fear was no

longer well-founded. The BIA affirmed the IJ's ruling denying

asylum and withholding of removal solely on this ground; it also

affirmed the IJ's conclusion that petitioners were ineligible for

CAT protection. We affirm the BIA's findings and deny the

petition.

I.

On April 26, 2001, Sokrat and Kristi Nako arrived in

Boston, Massachusetts on visitor visas. On July 12, 2001, Kozet

Filipi joined them, entering through New York, New York under the

Visa Waiver Program (VWP). On October 12, 2001, weeks before his

visa expired, Sokrat Nako filed an application for asylum,

withholding of removal, and CAT protection, claiming he had

suffered past persecution in Albania because of his political

beliefs.

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 Four years later, on January 27, 2005, the Department of

Homeland Security (DHS) initiated removal proceedings against

Filipi as a VWP violator, which she did not challenge. On April 5,

2005, DHS initiated removal proceedings against Sokrat and Kristi.

Sokrat and Kristi conceded removability and on December 7, 2005,

Sokrat filed an amended asylum application with an IJ, claiming his

wife and son as derivative beneficiaries and again requesting

asylum, withholding of removal, and CAT protection.1

On December 17, 2007, at a hearing before the IJ, Nako

testified that he had suffered past political persecution by the

Socialist Party in Albania, and feared future persecution, because

of his membership in the Albanian Democratic Party. He submitted

newspaper articles, a State Department Country Report from 2006,

and an affidavit from an Albania expert as to a different Albanian

applicant for asylum discussing current political conditions to

support these claims.2 We summarize the evidence Nako presented to

the IJ as follows.

Nako was born in Albania in 1963 and lived in the city of

Durrës during the events in question. From 1974 until the fall of

1
Petitioner Kozet Filipi's application for asylum,
initially made separately, was later consolidated with Sokrat's
application to make her a derivative beneficiary of his claim. See
8 C.F.R. § 1208.3(a).
2
The expert concluded that the applicant had a reasonable
fear of future persecution because she was a prominent female
Catholic political activist in a Muslim country. Nako's
circumstances are not analogous, nor has he argued as much.

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the communist regime in the early 1990s, Nako and his family had

faced persecution by the communist regime because of his brother's

political agitation and Nako's membership in a democratic group

trying to overthrow the regime. Nako admitted he had not really

lived in Albania since December 1990, but returned there about

twice a year.

The Socialist Party came to power in Albania in 1997, by

which point Nako was a member of the opposing Democratic Party. On

October 12, 1997, Nako planned to participate in a Democratic Party

demonstration in Durrës to denounce the Socialist Party, but

Socialist Party adversaries began looking for him and beat his

relatives in order to intimidate him. That same day, Nako fled to

Italy.

Nako returned to Durrës in December 2000 to participate

in a demonstration. On December 8, 2000, the Democratic Party

organized a city-wide protest to denounce the Socialist Party's

undemocratic practices. Nako was singled out by special police

forces and arrested because he was on the front lines of the

demonstration. While detained, he was beaten with clubs and

punched and kicked for six hours. He was warned not to try to

overthrow the regime and was released. He did not seek medical

treatment. The next morning, he gave an interview to the local

press denouncing the Socialist regime and again fled to Italy.

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Nako briefly returned to Albania on April 20, 2001, and left Italy

for the United States on April 25, 2001.

Nako acknowledged that the Democratic Party currently

controls Albania, but said he nonetheless still feared persecution

by the Socialist Party. He said that the Democratic Party's

parliamentary majority over the Socialist Party was too slim to

effectively rule the country or to protect him from persecution in

cities like Durrës where the Socialists won the local elections and

his persecutors remained in power.

The IJ denied Nako's application in an oral decision at

the end of the December 17, 2007, hearing. The IJ deemed Nako

credible, but found he had not established a well-founded fear of

future persecution and was not entitled to asylum or withholding of

removal because he had repeatedly returned to Albania after his

move to Italy, demonstrating an apparent lack of fear of future

persecution.

The IJ also concluded that even assuming Nako had

suffered past persecution and received the presumption of a well-

founded fear of future persecution, 8 C.F.R. § 1208.13(b)(1), this

presumption had been rebutted. Nako had not shown a well-founded

fear of future persecution "based significantly in part on the fact

that there ha[ve] been compelling changes in the government of

Albania." The IJ supported this conclusion by citing details from

the State Department's 2006 Country Report on Human Rights

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Practices and 2006 Profile of Asylum Claims and Country Conditions

for Albania (the most recent reports). These reports indicated

that there were no major outbreaks of political violence in Albania

since 1998, that peaceful elections had been held in 2005, that the

leader of the Democratic Party had become prime minister, that the

Democratic Party controlled parliament with 81 of 140 seats, and

that the political parties had ceased abuse or coercion of

political opponents. The reports provided no evidence of present

systemic political persecution in Albania. Because Nako had not

met the lesser burden for asylum, his claim for withholding of

removal necessarily failed. The IJ also denied CAT protection

after finding that Nako had failed to show a likelihood he would be

tortured in Albania, and ordered petitioners removed to Albania.

On August 27, 2009, the BIA adopted and affirmed the IJ's

denial of asylum on the basis of changed country conditions in

Albania. The BIA rejected Nako's claim on appeal that the IJ

failed to give sufficient weight to record evidence of country

conditions, finding that the 2006 State Department Country Report

and Asylum Profile were "probative evidence" of changed conditions.

The BIA affirmed the IJ's rejection of withholding of removal and

also affirmed the denial of CAT protection because Nako had not

shown he would likely be tortured in Albania.

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 II.

When, as here, the BIA adopts and affirms part of the

IJ's ruling and further justifies the IJ's conclusions, we review

both the BIA's and IJ's opinions. Weng v. Holder, 593 F.3d 66, 71

(1st Cir. 2010).

An alien's eligibility for asylum depends on satisfying

his burden to show that he is a "refugee," 8 U.S.C. § 1158(b)(1)(A)

& (B), meaning that he "'has suffered past persecution or has a

well-founded fear of future persecution on the basis of race,

religion, nationality, membership in a particular social group, or

political opinion.'" Anacassus v. Holder, 602 F.3d 14, 19 (1st

Cir. 2010) (quoting Decky v. Holder, 587 F.3d 104, 110 (1st Cir.

2009)); see also 8 U.S.C. § 1101(a)(42)(A). If the applicant

carries his burden of showing past persecution, he "shall also be

presumed to have a well-founded fear of persecution on the basis of

the original claim." 8 C.F.R. § 1208.13(b)(1).

The government can overcome this presumption by showing,

by a preponderance of the evidence, that "[t]here has been a

fundamental change in circumstances such that the applicant no

longer has a well-founded fear of persecution in the applicant's

country of nationality." Id. § 1208.13(b)(1)(i)(A). The

government must present more than generalized evidence, but a

country report that "demonstrates fundamental changes in the

specific circumstances that form the basis of a petitioner's

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presumptive fear of future persecution . . . may be sufficient, in

and of itself, to rebut that presumption." Chreng v. Gonzales, 471

F.3d 14, 22 (1st Cir. 2006) (quoting Palma-Mazariegos v. Gonzales,

428 F.3d 30, 36 (1st Cir. 2005)) (internal quotation marks

omitted).

Whether such a change in country conditions has occurred

is a question of fact we review under the deferential "substantial

evidence" standard, asking only whether "any reasonable adjudicator

would be compelled to conclude to the contrary." Bollanos v.

Gonzales, 461 F.3d 82, 85 (1st Cir. 2006) (quoting Rodriguez-

Ramirez v. Ashcroft, 398 F.3d 120, 123 (1st Cir. 2005) (internal

quotation marks omitted).

Here, substantial evidence supported the BIA's and IJ's

conclusion that fundamental changes in the Albanian political

situation since 2001, when Nako was last in Albania, rebutted the

presumption that Nako had a well-founded fear of future persecution

by his Socialist Party adversaries. The BIA and IJ considered

Nako's claim of political persecution in the specific context of

his membership in the Democratic Party, his fear of persecution by

the Socialist Party, and his absence from Albania since 2001 when

drawing conclusions from the 2006 State Department Country Report

and Asylum Profile. Those reports not only indicated that the

Democratic Party now controls Albania, but also thoroughly

documented the cessation of politically motivated violence and

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persecution by either party as well as a decline in police

misconduct. This court has previously deemed these particular

facts fatal to nearly identical petitions for review by other

Albanian Democratic Party members who have claimed a fear of

political persecution by the Socialist Party. See Uruci v. Holder,

558 F.3d 14, 19-20 (1st Cir. 2009); Alibeaj v. Gonzales, 469 F.3d

188, 193 (1st Cir. 2006); Bollanos, 461 F.3d at 86; Tota v.

Gonzales, 457 F.3d 161, 166-68 (1st Cir. 2006).

Nako nonetheless contests the sufficiency of this

evidence. He first argues that the IJ and BIA relied on "blanket

conclusions" in the 2006 Country Report and Asylum Profile and

failed to consider his individualized claim that he would be

singled out if he returned to Durrës, where the Socialists won

local elections and where he says the same authorities who

previously persecuted him remain in power and would target him on

his return. Moving elsewhere in Albania would not solve the

problem, he claims, because his opponents would track him down and

because Albania restricts internal migration. He also claims the

Country Report, in any event, shows enduring problems in Albania,

including police and prison officials' widespread abuse of

detainees, a lack of fair electoral procedures, and political

intimidation of journalists.

We reject these arguments. Nako's first argument ignores

the IJ's and BIA's careful examination of specific facts in the

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Country Report and Asylum Profile directly relevant to his fear of

future persecution by the Socialist Party because of his

involvement in the Democratic Party. The 2006 Asylum Profile the

BIA and IJ relied upon identifies region-specific instances of

political violence and persecution when they occurred, for instance

noting "small-scale clashes between individual competing party

supporters" in October 2003 in Himara, Albania. The conclusions in

the Country Report and Asylum Profile about the lack of recent

politically motivated violence and intimidation in Albania after

that date do not ignore regional differences; rather, they suggest

that such events have lessened across the board.

Moreover, Nako has not presented anything more than

sweeping assertions as to why he would likely be singled out for

persecution by the Socialist Party notwithstanding the general

cessation of political violence between Socialist and Democratic

Party opponents. Nako has not pointed to any concrete acts of

political violence in Durrës or elsewhere that would undermine the

conclusions in the Country Report and Asylum Profile. Even

accepting Nako's assertion that some of the people who persecuted

him in Durrës still occupy positions in the local government, it

does not follow that these unnamed individuals would still seek

retribution for Nako's participation in demonstrations denouncing

the Socialist Party more than ten years ago in a climate where

politically motivated retribution has considerably lessened.

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 Nako's second argument likewise fails. He has presented

no evidence compelling the finding that he would suffer continued

political persecution as one of the Socialist Party's adversaries

in the Democratic Party. The Country Report and Asylum Profile

have concluded that politically motivated persecution and

intimidation is no longer a serious problem anywhere in Albania.

See Uruci, 558 F.3d at 19-20. The BIA's conclusion that the IJ

properly weighed the specific findings in these reports was

supported by substantial evidence.

Finally, substantial evidence supported the denial of

Nako's claim for CAT protection. Though Nako reasserts the reasons

he fears persecution on his return to Albania, none of these

allegations show it is more likely than not that he would be

subject to the kind of severe physical or mental pain or suffering

that would constitute torture by or with the acquiescence of a

government official. See Limani v. Mukasey, 538 F.3d 25, 32 (1st

Cir. 2008). Substantial evidence supported the conclusion that the

evidence was insufficient for Nako to make out a claim for CAT

protection.

The petition is denied.

So ordered.

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