Hyzoti v. Mukasey

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0150n.06
Filed: March 17, 2008

Case No. 07-3658

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

VAID HYZOTI, )
LULJETA HYZOTI, )
FJONA HYZOTI, )
FJODI HYZOTI, ) ON PETITION FOR REVIEW
) OF A DECISION OF THE
Petitioners, ) BOARD OF IMMIGRATION
) APPEALS
v. )
)
MICHAEL B. MUKASEY, Attorney )
General, )
)
Respondent. )
)
_______________________________________

BEFORE: BOGGS, Chief Judge; BATCHELDER and GRIFFIN, Circuit Judges.

ALICE M. BATCHELDER, Circuit Judge. Petitioners1 appeal the February 7, 2007,

decision of the Board of Immigration Appeals (“BIA”) denying their application for asylum,

withholding of removal, and relief under the United Nations Convention Against Torture (“CAT”).

Because we conclude that substantial evidence supports the BIA’s determination that changed

country conditions in Albania refuted any presumption that Petitioners had a well-founded fear of

future persecution, we DENY the petition for review and AFFIRM the decision of the BIA.

I. BACKGROUND

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The lead petitioner, Vaid Hyzoti (“Hyzoti”), filed his application for asylum, on which his wife, Luljeta,
daughter, Fjona, and son, Fjodi, are listed as derivatives. W e will collectively refer to the family as “Petitioners.”
Petitioners, a husband and wife and their two children, are citizens of Albania who came to

the United States in November of 2000.2 On December 18, 2000, Hyzoti, the lead petitioner, filed

an application for asylum under INA § 208(a), claiming past persecution and a well-founded fear of

future persecution on account of: (1) his political opinion, including his political party affiliation

and support of the Albanian monarchy; and (2) his work as a journalist. He also sought withholding

of removal under INA § 241(b)(3) and withholding under the CAT. Petitioners conceded that they

were subject to removal under the INA.

Hyzoti worked mainly as a journalist in Albania, writing for several “right-wing” newspapers.

He was also active in politics, first with the Albanian Democratic Party in the early 1990's, and then,

beginning around 1993, with the pro-monarchy Legality Party. Hyzoti’s wife worked as a notary

public. In the asylum application and at the evidentiary hearing before an Immigration Judge (“IJ”),

Petitioners supported their asylum application with allegations of several instances of abuse and ill-

treatment.

First, Hyzoti claimed that on several occasions he was detained and physically assaulted by

police because of his political affiliation. He also alleged that the newspaper for which he wrote

fired him after he joined the Democratic Party. Hyzoti’s wife claimed that she was suspended as a

notary public because of her husband’s political activities.

Next, Hyzoti alleged that government officials mistreated him because of newspaper columns

he wrote. Most notably, Hyzoti claimed that in Kruje, Albania, the city in which Petitioners lived,

the District Prosecutor and the Prosecutor’s son physically beat him because of an article he wrote

2
Vaid, Luljeta, and Fjodi entered the United States on non-immigrant visas on November 10, 2000. Fjona
arrived two days later without inspection.

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that was critical of the President of Albania. According to Hyzoti, when he filed charges against the

two men, the District Prosecutor was simply transferred to another office, and the government took

no other action to punish the District Prosecutor’s conduct or to protect Hyzoti from further

harassment.

Petitioners also detailed numerous threats they claim to have received from various people.

Some of these threats were made in person by men carrying firearms; others were made over the

phone or via letters. Primarily, these threats indicated an intention to kidnap or physically harm

Fjona, and one in particular, from a man named Lutfi Kapa, resulted in at least some police action.

Hyzoti conceded that some of these threats may have been because of his financial wealth and not

his political activities or work as a journalist.

The IJ issued an oral decision on June 30, 2005, concluding that Hyzoti was not credible and

that he had not adequately corroborated his claims. Furthermore, the IJ found that, even if Hyzoti

were credible, his claims failed because he did not establish past persecution. Finally, the IJ

determined that, even if Hyzoti had established past persecution, changed country conditions in

Albania rebutted the presumption that he had a well-founded fear of future persecution. On February

7, 2007, the BIA — with some discussion of its own — adopted and affirmed the IJ’s finding that

Petitioners were not entitled to asylum because of the changed country conditions in Albania. The

BIA also denied Petitioners’ motion to remand, a decision not relevant to the disposition of this case.

Petitioners timely appealed to this court the BIA’s decision denying their application for asylum,

withholding of removal, and relief under the CAT.

II. STANDARD OF REVIEW

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When “the [BIA] adopts the decision of the IJ in lieu of issuing its own opinion, we review

the IJ’s decision as the final agency decision.” Denko v. INS, 351 F.3d 717, 726 (6th Cir. 2003); see

also 8 C.F.R. § 1003.1(e)(4)(ii). Here, however, the BIA did not simply adopt the finding of the IJ,

but rather adopted and affirmed — while also adding its own analysis — the IJ’s conclusion

regarding the changed country conditions in Albania. We therefore directly review the IJ’s decision

while considering the additional discussion of the BIA. Gilaj v. Gonzales, 408 F.3d 275, 283 (6th

Cir. 2005).

We utilize the substantial-evidence test to review the BIA’s finding that an alien does not

qualify as a refugee. Ramani v. Ashcroft, 378 F.3d 554, 558 (6th Cir. 2004); see also Mikhailevitch

v. INS, 146 F.3d 384, 388 (6th Cir. 1998) (citing INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)).

Using that test we deem factual findings “conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B), and we may not reverse the IJ or

BIA simply because we would have decided the matter differently, Mikhailevitch, 146 F.3d at 388.

We may reverse only if the petitioner’s evidence compels a conclusion contrary to that of the IJ or

BIA. Elias-Zacarias, 502 U.S. at 483-84 (“[T]o obtain judicial reversal of the BIA’s determination,

[the petitioner] must show that the evidence he presented was so compelling that no reasonable

finder of fact could fail to find” in the petitioner’s favor.).

III. ANALYSIS

In denying Petitioners’ application for asylum, the BIA specifically confined its decision to

the changed country conditions in Albania. Because the BIA did not summarily affirm the IJ’s

decision, but added its own analysis, we review both the IJ’s decision and the BIA’s analysis to

4
determine whether substantial evidence supports the conclusion that because of the changed country

conditions in Albania, Hyzoti does not have a well-founded fear of persecution.

A. ASYLUM

The Attorney General has delegated authority to the BIA and to IJs to determine if an alien

qualifies as a refugee. Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir. 2004) (citing 8 U.S.C. § 1158(a)

& (b)). That determination requires a two-step inquiry: (1) whether the applicant qualifies as a

refugee as defined in 8 U.S.C. § 1101(a)(42); and (2) if so, whether the applicant merits the BIA’s

exercising discretion on his or her behalf. Id. (citing Ouda v. INS, 324 F.3d 445, 451 (6th Cir.

2003)).

A refugee is defined as “an alien who is unable or unwilling to return to his home 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.’” Elias-Zacarias, 502 U.S.

at 558 (quoting 8 U.S.C. § 1101(a)(42)(A)). As an applicant for asylum, Hyzoti must prove that he

has suffered past persecution or has a well-founded fear of future persecution should he return to

Albania. Yu, 364 F.3d at 703; Perkovic v. INS, 33 F.3d 615, 620 (6th Cir. 1994). If he satisfies his

burden of establishing past persecution, he is entitled to a rebuttable presumption that he has a well-

founded fear of future persecution. See Mikhailevitch, 146 F.3d at 389. The government may

overcome that presumption “by establishing by a preponderance of the evidence that there is ‘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.’” Mullai v. Ashcroft, 385 F.3d 635, 638 (6th

Cir. 2004) (quoting 8 C.F.R. § 208.13(b)(1)(i)(A)).

In deciding to deny Petitioners’ application, the BIA stated:

5
[E]ven if we were to assume that the [Petitioners] provided credible testimony and
have established past persecution, we find that there has been a “fundamental change
in circumstances” such that [Petitioners] no longer have a well-founded fear of
persecution, or that their life or freedom would be threatened in Albania. See 8
C.F.R. §§ 1208.13(b)(1)(i)(A), 1208.16(b)(1)(i)(A).

Thus, in effect, the BIA simply assumed that Hyzoti suffered past persecution and afforded him the

presumption of a well-founded fear of future persecution. We will likewise assume that Hyzoti did

suffer past persecution, and determine whether substantial evidence supports the BIA’s conclusion

that changed country conditions in Albania rebut the presumption that Hyzoti has a well-founded

fear of future persecution.

“It is the purview of the BIA . . . to determine the current conditions prevailing in a particular

country.” Weng v. Mukasey, No. 07-0866, 2007 U.S. App. LEXIS 29635 at *17 (6th Cir. Dec. 19,

2007) (unpublished) (citing INS v. Ventura, 537 U.S. 12, 16-18 (2002)). Both the IJ and the BIA

cited the United States Department of State’s Profile of Asylum Claims and Country Conditions for

Albania (March 2004), to establish the following facts: Albania’s human rights record has

noticeably improved; individuals are able to exercise their political rights, generally free from

violence and government interference; and recent elections were “the most transparent in Albania’s

short democratic history, with no police interference.” Both the IJ and the BIA also cited the

Department of State’s Albania: Country Reports on Human Rights Practices (February 28, 2005),

which states that “[u]nlike in previous years, physical violence was not used against journalists.”

Although not conclusive, State Department reports “are generally the best source of

information on conditions in foreign nations.” Mullai, 385 F.3d at 639 (quoting Kokaj v. Ashcroft,

100 Fed. App’x 506, 508 (6th Cir. 2004)). In fact, “State Department reports on other countries are

entitled to significant deference when assessing conditions there.” Koliada v. INS, 259 F.3d 482,

6
487 (6th Cir. 2001). Moreover, we have determined that country conditions have changed in Albania

and that political persecutions are no longer a significant problem. See Prifti v. Gonzales, No. 05-

0918, 2005 U.S. App. LEXIS 25144 at *5-6 (6th Cir. Nov. 18, 2005) (unpublished) (“[D]espite the

prevalence of crime and police corruption, ‘there is virtually no evidence that individuals are targeted

for mistreatment on political grounds.’”); Gilaj, 408 F.3d at 288 (“There is documentation in the

record that suggests that conditions in Albania have changed in recent years.”); see also Lumaj v.

Ashcroft, 115 Fed. App’x 595, 598 (3d Cir. 2004) (finding that, after the fall of the communist

regime, there is little evidence of religious or political persecution in Albania.).

Petitioners present virtually no facts or evidence to rebut the information in the State

Department reports or to attack our precedents finding that country conditions have changed in

Albania. Therefore, we find that substantial evidence supports the IJ’s and BIA’s conclusions that

country conditions have changed in Albania such that Hyzoti does not have a well-founded fear of

future persecution. Accordingly, we conclude that Petitioners do not qualify as refugees under 8

U.S.C. § 1101(a)(42)(A) and are not eligible for asylum.

B. Withholding of Removal

An applicant seeking withholding of removal must satisfy a more stringent burden of proof

than must an applicant for asylum. Mikhailevitch, 146 F.3d at 391 (citing INS v. Cardoza-Fonseca,

480 U.S. 421, 431-32 (1987)). In order to qualify for withholding of removal, Hyzoti must establish

that there is a clear probability that he would be subjected to persecution if he were to return to

Albania. Id. (internal citations omitted); INS v. Stevic, 467 U.S. 407, 429-30 (1987). We have

concluded that substantial evidence supports the BIA’s decision that because of changed country

7
conditions in Albania, Petitioners are ineligible for asylum. Therefore, a fortiori, they “cannot

satisfy the more stringent standard for withholding of” removal. Id.

C. Convention Against Torture

In order to establish entitlement for relief on his CAT claim, Hyzoti must prove “that it is

more likely than not that [he] would be tortured if” removed to Albania. Singh v. Ashcroft, 398 F.3d

396, 404 (6th Cir. 2005) (citing Pilica, 388 F.3d at 951 (quoting 8 C.F.R. § 208.16(c)(2))). We have

already decided that Hyzoti is not eligible for asylum because changed country conditions rebut the

presumption that he has a well-founded fear of future persecution. Petitioners have put nothing in

the record to persuade us that — more likely than not — Hyzoti will be tortured upon returning to

Albania. Consequently, Petitioners are not entitled to relief under the CAT.

IV. CONCLUSION

For the foregoing reasons, we DENY the petition for review and AFFIRM the decision of

the BIA.