Gjinaj v. Ashcroft

NOT RECOMMENDED FOR PUBLICATION
File Name: 05a0067n.06
Filed: January 31, 2005

No. 03-3010

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

GEZIM GJINAJ,

Petitioner,
On Petition for Review of
v. an Order of the
Board of Immigration Appeals
JOHN ASHCROFT, Attorney General,

Respondent.
_________________________________________/

BEFORE: SUTTON and COOK, Circuit Judges; and ROSEN, District Judge.*

ROSEN, District Judge.

I. INTRODUCTION

Petitioner Gezim Gjinaj seeks review of the December 13, 2002 Order of the

Board of Immigration Appeals (“BIA”) which affirmed the Immigration Judge’s denial

of Petitioner’s applications for asylum and withholding of removal pursuant to the

Immigration and Nationality Act (the “INA”) and the United Nations Convention

Against Torture (the “Torture Convention”). For the reasons stated below, the BIA’s

*
The Honorable Gerald E. Rosen, United States District Judge for the Eastern
District of Michigan, sitting by designation.

1
decision is AFFIRMED.

II. BACKGROUND

A. PROCEDURAL HISTORY

Petitioner, Gezim Gjinaj, a native and citizen of Albania, entered the United States

without inspection on or about September 15, 1997. The Immigration and Naturalization

Service (“INS”) commenced removal proceedings against Petitioner on March 4, 1998,

charging him with removability under the Immigration and Nationality Act. At a hearing

held before an Immigration Judge, Petitioner conceded removability as charged but

submitted an application for asylum and withholding of removal under the INA and the

Torture Convention.

A formal hearing was held on the merits of Petitioner’s claims on July 12, 1999.

Petitioner was the only witness to testify at the hearing. Documentary evidence was

presented which included Petitioner’s asylum applications and government documents

relating to country conditions in Albania. Petitioner also proffered copies of certain other

documents including Petitioner’s Albanian passport; copies of what Petitioner alleged to

be his official Albanian employment record and his birth certificate; and documents

relating to his membership in the L’Egalite Party and in the Formerly Politically

Persecuted Organization.

After the conclusion of the testimony, the Immigration Judge denied Petitioner’s

applications for asylum and withholding of removal and ordered him deported to

2
Albania. The IJ found that Mr. Gjinaj lacked credibility and, accordingly, failed to carry

his burden of establishing his eligibility for relief. The IJ further found that even if Gjinaj

were credible, the government had established that conditions in Albania had changed to

such an extent that Petitioner no longer had a well-founded fear of being persecuted if he

were to return to that country.

Petitioner filed a timely appeal of the IJ’s decision with the BIA. On December

13, 2002, the BIA summarily affirmed the decision of the Immigration Judge without

opinion. Petitioner filed the instant appeal on January 6, 2003.

B. PERTINENT FACTS

1. PETITIONER’S ALLEGATIONS

Petitioner alleged in his testimony1 that he was born on June 13, 1970, in

Giumire2, an internment camp in Shkodra, Albania. He testified that he and his family

escaped from internment camp in January 1990 during protest demonstrations.

According to his testimony, Petitioner was not arrested at this demonstration, but he said

that a few months later, on July 2, 1990, he and his father were arrested during a

demonstration in Shkodra calling for the overthrow of the Communist regime. Petitioner

testified that he and his father were detained for three days and beaten by men wearing
1
References herein to “testimony” refer to Petitioner’s testimony before the
Immigration Judge. This is distinct from references to statements made by Gjinaj in his
asylum application. As discussed below, the Immigration Judge found Petitioner to lack
credibility, in part because of discrepancies between what he alleged in his in-court
testimony and what he alleged in his asylum application.
2
Petitioner refers to this location as “Gruemire” in his application; however, in
Petitioner’s testimony and in the government’s brief it is referred to as “Giumire.”

3
masks whom Petitioner believed were police officers.

According to Petitioner’s testimony, he was arrested on April 2, 1991 at another

demonstration, this time calling for the overthrow of the Socialist Party. In his asylum

application, Petitioner stated that in this demonstration, he was cut with a bayonet,

injured severely in the left leg, and shot in the right side of his chest when he moved

while a pistol was pointed at him. Petitioner further alleged in his application that his

captors thought that they had killed him and left him there to die, but others came from

the demonstrations and took him to the hospital.

Petitioner testified that he was operated on at the hospital to remove the bullet

from his chest, and that he stayed in the hospital until May 5, 1991. Although he did

show the Immigration Judge scars which the IJ acknowledged could possibly be scars

from surgery, Petitioner presented no independent corroborative evidence to substantiate

his claim of hospitalization or surgery to remove any bullet. He claimed that after being

released from the hospital, he was again taken to jail and questioned, and finally released

on June 16, 1991, whereupon he claimed to have been immediately drafted into the army.

Petitioner said that he stayed in the army until February 2, 1992. He further testified that

while he was in the army, his father was beaten to death at the police station after a

demonstration. However, he admitted that he had no independent knowledge of the

circumstances of his father’s death but merely came to this conclusion after talking to

family friends after he got out of the army.

4
 Petitioner testified that the Democratic Party won the next election, and he got a

job as an Albanian government inspector of social and economic aid in July 1992. In this

position, Petitioner was responsible for dispensing economic aid to Albanian citizens.

During this time frame, Petitioner testified that he joined the L’Egalite movement (which

is a political party that supported a return to the monarchy), the Formerly Politically

Persecuted Organization, the Lawful Landowners Association, and the Democratic

movement. He further testified that his job with the Albanian government ended in July

1997 when the Socialist Party came into power. He said he was fired because

communist/socialist families complained that they were not receiving aid from Petitioner.

Petitioner then claimed that he was arrested by the secret police, beaten, and held for

three days. He said he was subsequently released on July 20, 1997, and dropped off in a

field a few kilometers outside the city. According to his testimony, Petitioner left

Albania that same night, July 20, 1997, with no documents and no clothing other than

what he was wearing. He testified that he walked through the mountains to Montenegro

and he stayed at a cousin’s house there until September 12, 1997, when he went to

Germany, from there to Mexico, and finally crossed the border into the United States,

illegally, on September 15, 1997.

Petitioner testified that once he was in the United States, he obtained (by mail)

some of his “documents.” He said that before he arrived in the United States, he had told

one of his uncles where he had hid his “documents” in his home in Albania in case

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something happened to him. He testified that he received the documents in the United

States on September 17, 1997 (i.e., just two days after he arrived). These documents

were among those proffered to the Immigration Court in support of his request for

asylum. The documents included: (1) an Employee Booklet indicating the place, date,

type of employment and reason for terminating, given as “terminated from work for

political reasons”3; (2) a membership card in Formerly Politically Persecuted

Organization; (3) a membership card in the L’Egalite Party; and (4) his birth certificate.

The legitimacy of these documents and the legitimacy of Petitioner’s Albanian passport

were questioned at Petitioner’s immigration hearing.

With respect to his passport, Petitioner testified that he received the passport on

November 25, 1997 after he was already in the United States. He said that his uncle had

“bought it” for him from a person who worked for the government. Petitioner explained

in his testimony that “people like us not very often get passports because of fear that we

might leave.” He testified that he had obtained the passport because he needed to

identify himself. He testified that his uncle had used negatives from a picture that had

been previously taken of him, had prints made, and had taken them to a person who

prepares passports.

As indicated above, the legitimacy of Plaintiff’s passport and other documents

were closely questioned by the Immigration Judge. As the IJ observed, all of the
3
Plaintiff explained that an Employee Booklet was kept by every Albanian, and
employers were required to mark in the Employee Booklet dates of employment. The
Booklet allegedly is to keep track of employment for purposes of social security benefits.

6
documents, although ostensibly bearing different dates, had the same picture. Further,

the pictures all appeared to have a part of a seal on them which was not related to any

seal on the documents.

2. THE IMMIGRATION JUDGE’S FINDINGS

The Immigration Judge found Petitioner not credible and noted several

inconsistencies between Petitioner’s asylum application and his in-court testimony. The

IJ specifically noted that Petitioner had claimed in his application that the secret police

showed him a file that they had on his family after he had been shot. However, he

testified at the hearing that he was shot in 1991 and he was shown this file upon his arrest

in 1990. The court also observed that Petitioner had stated in his asylum application that

after losing his government job dispensing economic aid, he was detained for hours, but

at the hearing, he testified that he was detained for three days. The court also noted that

Petitioner made no mention in his asylum application of having participated in, or having

suffered any reprisals as a result of, any demonstrations in July 1990, but this was the

focal point of his hearing testimony.

With respect to the scars that Petitioner showed the Immigration Judge, although

Petitioner testified that these were from wounds he suffered after being arrested for

participating in a political protest, as the IJ observed, he did not go to any doctors in the

United States to verify that his wounds were what he alleged them to be, and he did not

have any documentation showing that he had been hospitalized. The Immigration Judge

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found that Petitioner could easily have obtained corroborating evidence such as a

statement or record from the hospital regarding his alleged gunshot wound, but chose not

to do so, testifying that he did not think it was important. Further, as the IJ observed, both

Petitioner’s mother and sister were living in Macedonia at the time, and either one of them

could have provided written statements to corroborate Petitioner’s testimony. Although

Petitioner testified that his mother was illiterate and, therefore, was unable to give an

affidavit, he never gave an explanation as to why his sister could not provide an affidavit.

Petitioner also stated that before he was shot, he was severely beaten on his left leg. He

did not corroborate this and the IJ believed that this, too, could easily have been

corroborated with medical evidence.

The Immigration Judge also found particularly incredible Petitioner’s testimony

concerning the various documents he proffered as evidence at the hearing. With respect to

the documents, Petitioner testified that he had his uncle secure his alleged Albanian

employment record from his previous employer just a few days prior to his testimony.

The Immigration Judge noted, however, that if Petitioner was truly being sought by the

Albanian government as he claimed, it would have been very difficult to obtain this

document from his former employer. Petitioner also testified that he had gotten his

Albanian passport from his uncle several months after leaving Albania, but the IJ found

that it would have been particularly difficult, if not impossible, for him to have a passport

delivered to him in the United States if Petitioner was truly wanted by the Albanian

8
government, as he claimed.

Further, as indicated above, there was a partial stamp on Petitioner’s picture on

several of his “documents” that appeared to have no relation to any stamp or seal on the

respective documents. This led the Immigration Judge to conclude that the picture had

been lifted from some other document since the entire seal was not there. Further, the

same exact picture was on Petitioner’s membership card in the Formerly Politically

Persecuted Organization, the document noting his membership in the L’Egalite Party, his

passport, his birth certificate, and his asylum application, although each of these

documents bore markedly different dates.

The Immigration Judge also specifically found Petitioner’s birth certificate to be

fraudulent. With respect to his birth certificate, Petitioner testified that he called his uncle

from Montenegro after he had fled Albania on July 20, 1997 and told his uncle to go to his

apartment and get the negative for the picture and information necessary for his birth

certificate. However, the certificate verifying his birth was dated July 14, 1997, which is

before Petitioner even left the country and, in fact, before he was fired from his

government job. The IJ found that the birth certificate issuance should have been dated a

month after the date he was fired because it would take that long to gather the appropriate

information, obtain a government record, and send Petitioner the birth certificate. Based

on the foregoing inconsistencies and evidentiary deficiencies, the Immigration Judge

found that Petitioner’s testimony “was not only not truthful, but approaches being

9
fraudulent in nature.” [7/12/99 Oral Decision and Order of the Immigration Judge, p. 23.]

Accordingly, the IJ determined that Petitioner failed to satisfactorily establish that he was

a victim of past political persecution or that he would face persecution if he were to be

returned to Albania. Therefore, the IJ denied Petitioner’s applications for asylum and

withholding of removal.

The Board of Immigration Appeals affirmed the IJ, without opinion.

III. DISCUSSION

A. STANDARD OF REVIEW

Where, as here the Board of Immigration Appeals affirms the IJ’s decision without

opinion, we review the IJ’s decision as the final agency decision. Denko v. INS, 351 F.3d

717, 726 (6th Cir. 2003).4 We review that decision under the substantial evidence test.

This Court can reverse only if “any reasonable adjudicator would be compelled to

conclude the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Yu v. Ashcroft, 364 F.3d 700,

703 n.2 (6th Cir. 2004).

Credibility determinations are considered findings of fact and, as such, are

reviewed under the substantial evidence standard. Yu, 364 F.3d at 703; Sylla v. INS, 388

F.3d 924, 925 (6th Cir. 2004). “This is a deferential standard: A reviewing court should

not reverse simply because it is convinced that it would have decided the case differently.”

Id. at 925-926 (internal quotation marks and citation omitted). However, while an adverse

4
Further, our review is restricted to the contents of the administrative record. 8
U.S.C. § 1252(b)(4)(A).

10
credibility finding is afforded substantial deference, the finding must be supported by

specific reasons. Id. at 926; see also Daneshvar v. Ashcroft, 355 F.3d 615, 623, n.7 (6th

Cir. 2004). Further, an adverse credibility finding must be based on issues that go to the

heart of the applicant’s claim; it cannot be based on an irrelevant inconsistency. Id. at

619-20 n.2.

B. BECAUSE PETITIONER DID NOT PRESENT CREDIBLE
EVIDENCE OF PAST PERSECUTION OR A WELL-FOUNDED
FEAR OF FUTURE PERSECUTION, HE DOES NOT QUALIFY AS
A “REFUGEE” UNDER THE INA

Under the Immigration and Nationality Act, the Attorney General has discretion to

grant asylum to a “refugee.” 8 U.S.C. § 1158(b).5 A refugee is defined in the INA as a

“person who is unable or unwilling to return to his home country because of past

persecution or a well-founded fear of persecution.” 8 U.S.C. § 1101(a)(42)(A). This

persecution must be on account of “race, religion, nationality, membership in a particular

social group, or political opinion.” Id. The petitioner bears the burden of either

demonstrating that he suffered past persecution or that he has a well-founded fear of future

persecution. Mikhailevitch v. INS, 146 F.3d 384, 389 (6th Cir. 1998); 8 C.F.R. §

208.13(b). An applicant who establishes past persecution is presumed to have a well-

founded fear of future persecution. Mikhailevitch, 146 F.3d at 389; 8 C.F.R. §

208.13(b)(1). However, that presumption may be rebutted if the government establishes,

by a preponderance of the evidence, that there has been a fundamental change in country
5
The Attorney General has delegated his immigration authority to the
Immigration Judges and the Board of Immigration Appeals.

11
conditions such that the applicant no longer has a well-founded fear of persecution.

Mikhailevitch, 146 F.3d at 389; 8 C.F.R. § 208.13(b)(1)(i).

1. PETITIONER FAILED TO PRESENT CREDIBLE EVIDENCE OF PAST
PERSECUTION

Absent documentary evidence, an asylum applicant’s testimony regarding a claim

of past persecution must be credible and persuasive, referring to “specific facts that give

rise to an inference that the applicant has been singled out for persecution.” Klawitter v.

INS, 970 F.2d 149, 154 (6th Cir. 1992) (internal quotation marks and citations omitted).

A determination of the applicant’s credibility must be made in order to determine whether

he has established that he endured past persecution. See Yu, 364 F.3d at 703. As noted,

the IJ’s adverse credibility findings “are conclusive unless any reasonable adjudicator

would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).

In this case, the Immigration Judge found Petitioner not credible based upon

various inconsistencies between Petitioner’s testimony and his application for asylum that

were central to Petitioner’s claim. The findings were supported by a number of specific

reasons which were set forth in the IJ’s decision. Among the inconsistencies noted by the

IJ were the following. First, the IJ noted that Petitioner had claimed in his asylum

application that the Albanian secret police showed him a file that they had on his family

after he had been shot. However, his testimony at the hearing was that he was shown this

file in 1990 and he was shot in 1991. The IJ also noted that Petitioner had stated in his

asylum application that after he was fired from his government job, he was detained by the

12
police for hours, but at the hearing, he testified that he was incarcerated for three days.

The IJ further noted that Petitioner made no mention whatsoever in his asylum application

of having suffered reprisals as a result of having participated in demonstrations in July

1990, but this was the focal point of his hearing testimony.

The IJ further found that a number of the documents which were presented by

Petitioner in support of his asylum claim -- including Petitioner’s birth certificate and

passport -- were fraudulent. With respect to the documents, the IJ observed that several of

the documents, although they had different dates, each bore the exact same picture of

Petitioner. Furthermore, there was a partial stamp on Petitioner’s picture on several of the

documents that appeared to have no relation to any stamp or seal on the documents. This

led the IJ to conclude that the picture had been lifted from some other document.

The IJ specifically found Petitioner’s birth certificate to be fraudulent for the

following reasons. Petitioner testified that he called his uncle from Montenegro after he

had been fired and had fled Albania on July 20, 1997 and told his uncle to go to his

apartment and get the picture and the information necessary to obtain his birth certificate.

However, the document that Petitioner presented as verifying his birth was dated July 14,

1997, i.e., nearly a week before he left Albania and, in fact, before he was fired from his

government job. The IJ found that, if it were a valid document, the birth certificate

document would have been dated a month after the date Petitioner was fired because it

would take that long to gather the appropriate information, obtain a government record,

13
and send the document to Petitioner outside of Albania.

The IJ also based his adverse credibility determination on Petitioner’s failure to

corroborate his testimony with medical evidence or statements from members of his

family. An applicant’s testimony, if credible, may be sufficient to sustain his or her

burden of proof without corroboration. 8 C.F.R. §208.13(a); see also, Pilica v. INS, 388

F.3d 941, 954 (6th Cir. 2004) (quoting Perkovic v. INS, 33 F.3d 615, 621(6th Cir. 1994))

(“[T]he alien’s own testimony can be sufficient to support an application for asylum,

where the testimony is believable, consistent and sufficiently detailed to provide a

plausible and coherent account of the basis for his fear.” (Internal quotation marks and

citation omitted.)) However, if the applicant’s credibility is in question, the applicant

must provide other evidence to corroborate his testimony. Nsue-Bisa v. Ashcroft, 98

Fed.Appx. 436, 439-440 (6th Cir. 2004). As indicated, the Immigration Judge found that

the Petitioner’s credibility was in question due to numerous inconsistencies in Petitioner’s

testimony and the seriously suspect nature of a number of documents proffered by him.

Therefore, the IJ looked for corroborative evidence, but found it lacking.

Petitioner was specifically asked several times about corroboration for his claims of

injury at the hands of political persecutors, but Petitioner admitted he never tried to obtain

any corroborating evidence. As the Immigration Judge found, it would have been

relatively easy to attempt to corroborate his claims with hospital records or testimony of

members of his family, but Petitioner made no attempt to do so. Therefore, since the IJ

14
found Petitioner’s testimony to be incredible and he did not make any effort to corroborate

his claims, the IJ properly determined that Petitioner failed to prove past persecution to

qualify for asylum as a refugee under the INA.

2. PETITIONER ALSO FAILED TO ESTABLISH A WELL-FOUNDED
FEAR OF FUTURE PERSECUTION

When an applicant for asylum fails to prove past persecution, he is not entitled to the

presumption of a well-founded fear of suffering future persecution. 8 C.F.R. §

208.13(b)(1). In order to establish entitlement to asylum without this presumption, the

applicant can prove a well-founded fear of persecution by establishing that: (1) he has a

fear of persecution based on political opinion; (2) there is a reasonable possibility of

suffering such persecution; and (3) he is unable or unwilling to return to that country

because of such fear. Mikhailevitch, 146 F.3d at 389. The applicant, however, is not

required to show that there is more than a 50% chance of the persecution taking place.

INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987).

To establish a well-founded fear of future persecution for purposes of an asylum claim,

the applicant must establish that his fear of persecution is both subjectively genuine and

objectively reasonable. Ali v. Ashcroft, 366 F.3d 407, 410 (6th Cir. 2004). In order to

satisfy the subjective portion of this test, the alien must actually fear that he would be

persecuted upon returning to his country. Id. However, for the objective portion of the

test, an applicant’s uncorroborated testimony is insufficient. Id. at 411.

Petitioner testified that he was persecuted for his Democratic Party affiliation and that

15
he was physically beaten on numerous occasions, but he did not corroborate his physical

scars with hospital records or other credible evidence. Further, the Immigration Judge

determined that Petitioner made many inconsistent statements and, as a result, found his

testimony to be incredible. Thus, although Petitioner may have been able to show that he

has a subjective fear of persecution based on political opinion, his lack of credibility and

inability to provide the Immigration Judge with any corroborating evidence makes his fear

objectively unreasonable. Therefore, Petitioner has not met his burden of establishing that

he is qualified for refugee status based upon a well-founded fear of future persecution.6

C. EVEN IF THE PRESUMPTION OF WELL-FOUNDED FEAR
ARISES FROM PAST PERSECUTION, A CHANGE OF
CIRCUMSTANCES IN PETITIONER’S HOME COUNTRY MAKES
HIS FEAR OF FUTURE PERSECUTION UNREASONABLE.

In the absence of a showing of past persecution, courts need not examine existing

country conditions. See Kurshimi v. Ashcroft, 102 Fed. Appx. 172, 176 (1st Cir. 2004);

Beganovic v. Ashcroft, 116 Fed. Appx. 279, 281 (5th Cir. 2004). However, because the

Immigration Judge specifically addressed the Government’s “changed conditions”

argument in ruling on Petitioner’s application, and because the parties have addressed this

6
The Court notes that an immigration judge may deny an alien’s request for
asylum simply based on the alien’s submission of a counterfeit document. See 8
U.S.C.A. §1158; Niang v. Ashcroft, 96 Fed. Appx. 341, 342 (6th Cir. 2004). Here, as
indicated, the Immigration Judge specifically found Petitioner’s birth certificate to be
fraudulent. Petitioner testified that his uncle went to Petitioner’s apartment to gather the
information needed for the birth certificate after Petitioner was fired, but the birth
certificate is dated before Petitioner was fired. Therefore, the Immigration Judge was
justified in denying Petitioner’s claim for political asylum based solely on his
determination of the falsity of his birth certificate.

16
issue in their appeal briefs, in the interest of completeness, we, too, will address the

“changed conditions” argument.

The presumption of well-founded fear established by evidence of past persecution

is a rebuttable one and can be rebutted if it is shown that conditions have changed to such

an extent that the asylum applicant no longer can have a well-founded fear of being

persecuted if he were to return to his home country. 8 C.F.R. § 208.13(b)(1)(i)(2003).

However, to rebut the presumption, the government must do more than show that the

circumstances in the country have drastically changed. Ouda v. INS, 324 F.3d 445, 452

(6th Cir. 2003). The government must also show that this change negates the particular

applicant’s well-founded fear of persecution. Id. The Immigration Judge determined that

the government met this standard in this case.

The government presented evidence that a new Prime Minister, Pandeli Majko, was

elected in Albania, and he has been described as generally more acceptable to the

population, intent on bringing a new approach to the country’s political life.

Furthermore, according to the State Department’s February 1998 Albania Country Report

on Human Rights Practices for 1998 (“Country Report”),7 which was presented to the

Immigration Judge as part of the Government’s evidence in this case, there were no

reports of killings based solely on persecution in 1998, i.e., the year after Petitioner left

the country. The Country Report also states that a parliamentary commission drafted a
7
The 1998 Country Report and the 1998 report profiling Albanian asylum claims
(discussed infra) were the most recent reports available at the time of Petitioner’s hearing
before the Immigration Judge.

17
new Constitution that was approved in a national referendum. Observers found that the

referendum was conducted fairly. Further, the State Department’s November 1998

Albania - Profile of Asylum Claims & Country Conditions Addendum (“Profile”), which

was also presented to the Immigration Judge in this case, stated that, as of 1998, people

are rarely targeted for mistreatment on political grounds in Albania, and that the

government there lacked the resources or will to carry out such retribution. The 1998

Profile also reports that Albania is an ethnically homogenous and religiously tolerant

society.

Relying on these State Department reports, the Immigration Judge found that “even

if you could stretch credibility and believe [Petitioner], the record is quite clear that the

government [of Albania] now in the hands of the socialists, is a kinder, gentler socialist

government,” and there is “no indication that this kinder, gentler socialist government

would target Petitioner or attempt to persecute him or torture him.” [7/12/99 Oral Decision

and Order, p. 29.] Although Petitioner also presented some articles supporting a contrary

view, all that is required for the government to rebut a Petitioner’s well-founded fear is a

preponderance of the evidence. A preponderance of the evidence requires only that the

government’s evidence “make the scales tip slightly” in its favor. See J.C. Penney Ins.

Co. v. Varney, 853 F.2d 926, 1988 WL 82351 (6th Cir. 1988) at **2 (unpublished table

opinion); see also Kendall v. City of Canfield, 76 Fed.Appx. 617, 622 (6th Cir. 2003).

The IJ was satisfied that the government met this standard. Therefore, the IJ properly

18
determined that even if Petitioner had been found to be credible and to have a well-

founded fear of persecution, there was a sufficient change in conditions in Albania to

rebut Petitioner’s claim of a well-founded fear of persecution.

D. THE “CLEAR PROBABILITY OF PERSECUTION” STANDARD IS
A STRICTER STANDARD THAN THE WELL-FOUNDED FEAR
STANDARD

Even if Petitioner has established a well-founded fear, once an alien is scheduled

for deportation, in order to qualify for withholding of deportation, the alien must establish

that there is a “clear probability” that he will be subject to persecution if forced to return

to the country of removal. Pilica, 388 F.3d at 951; Ali, 366 F.3d at 411 (citing INS v.

Stevic, 467 U.S. 407, 430 (1984)). This is a stricter standard than the well-founded fear

standard for asylum applications. Ali, 366 F.3d at 411. However, if there is substantial

evidence that supports the Immigration Judge’s determination that Petitioner is not

eligible for asylum, then Petitioner cannot satisfy the more stringent standard for

withholding of deportation. Mikhailevitch, 146 F.3d at 391.

As indicated, there is substantial evidence supporting the Immigration Judge’s

determination that Petitioner is not eligible for asylum. Since Petitioner has not

established entitlement to asylum, he has not made the stronger showing necessary for

withholding of removal. Nor has he demonstrated his eligibility for relief under the

Torture Convention. In order to obtain such relief, an alien has the burden of proving

“that it is more likely than not that he or she would be tortured if removed to the proposed

19
country of removal.” Pilica, 388 F.3d at 951. Petitioner has not met this burden.

V. CONCLUSION

For all of the foregoing reasons, the BIA’s order affirming the Immigration Judge’s

decision regarding Petitioner’s claim for political asylum and withholding of removal is

AFFIRMED.

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