[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-11446
FEBRUARY 2, 2012
Non-Argument Calendar
JOHN LEY
________________________ CLERK
Agency No. A097-835-853
MARTIN MARGIONI,
llllllllllllllllllllllllllllllllllllllll Petitioner,
versus
U.S. ATTORNEY GENERAL,
llllllllllllllllllllllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(February 2, 2012)
Before BARKETT, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Martin Margioni, a native and citizen of Albania, seeks review of the Board
of Immigration Appeals’s (BIA) final order affirming the Immigration Judge’s (IJ)
denial of his application for asylum under the Immigration and Nationality Act
(INA) § 208(a), 8 U.S.C. § 1158(a), withholding of removal, INA § 241(b)(3), 8
U.S.C. § 1231(b)(3), and relief under the United Nations Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT),
8 C.F.R. § 208.16(c). On appeal, Margioni argues that the BIA erred in finding
that the government rebutted the presumption of future persecution by
demonstrating fundamentally changed conditions in Albania.
We review the BIA’s legal determinations de novo and its factual
determinations for substantial evidence. Al Najjar v. Ashcroft, 257 F.3d 1262,
1283–84 (11th Cir. 2001). Under the highly deferential substantial evidence test,
we affirm the BIA’s factual determinations if “supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” Id. at
1284 (quotation omitted). We reverse the BIA’s factual finding only if the record
compels it; “the mere fact that the record may support a contrary conclusion is not
enough to justify a reversal of the [BIA’s] findings.” Adefemi v. Ashcroft, 386
F.3d 1022, 1027 (11th Cir. 2004) (en banc) (citation omitted).
We review only the BIA’s decision, “except to the extent that it expressly
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adopts the IJ’s opinion.” Al Najjar, 257 F.3d at 1284. Where, as here, the BIA
“affirmed and relied upon the IJ’s decision and reasoning,” we review the IJ’s
opinion “to the extent that the BIA found that the IJ’s reasons were supported by
the record.” Tang v. U.S. Att’y Gen., 578 F.3d 1270, 1275 (11th Cir. 2009). We
thus consider the decisions of both the IJ and the BIA.
It is permissible for the BIA and the IJ to rely heavily on the State
Department reports about a country. See Reyes-Sanchez v. U.S. Att’y Gen., 369
F.3d 1239, 1243 (11th Cir. 2004). In reviewing for substantial evidence, we may
not “reweigh from scratch the importance to be placed on” the State Department
country reports. Djonda v. U.S. Att’y Gen., 514 F.3d 1168, 1175 (11th Cir. 2008)
(quotation and alterations omitted).
I
An alien may be granted asylum if he qualifies as a refugee. INA
§ 208(b)(1)(A), 8 U.S.C. § 1158(b)(1)(A). The INA defines refugee as a person
unable or unwilling to return to his country of nationality “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.” INA
§ 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). The asylum applicant has the burden
to prove refugee status and thereby establish asylum eligibility. Al Najjar, 257
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F.3d at 1284.
An asylum applicant who has established past persecution on account of a
protected ground is presumed to have a well-founded fear of future persecution. 8
C.F.R. § 208.13(b)(1). This presumption can be rebutted in two ways. The
government can demonstrate, by a preponderance of the evidence, either (1) that
circumstances in the home country have fundamentally changed to the extent that
the petitioner need no longer fear persecution or (2) that the applicant could avoid
a future threat by relocating within the home country and that it would be
reasonable to expect him to do so. 8 C.F.R. § 208.16(b)(1)(i). Neither party here
disputes the findings of the BIA and IJ that Margioni experienced past
persecution.
Our review of the record confirms that substantial evidence supports the
conclusions of the BIA and IJ that changed country conditions in Albania rebut
the presumption of future persecution. The Socialist Party, which previously
persecuted Margioni for his political affiliations with the Democratic Party, is no
longer in power; in fact the Democratic Party now controls Albania. The recent
State Department country reports for Albania show a decrease in politically
motivated violence. The reports do not demonstrate that the Socialist Party is
engaged in violent behavior against members of the Democratic Party. See Reyes-
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Sanchez, 369 F.3d at 1243 (permitting the BIA and IJ to “rely heavily” on these
reports).
Margioni argues that the decisions of the BIA and IJ ignored record
evidence and that they did not undertake a sufficiently individualized
determination about his circumstances. Both the BIA’s and IJ’s decisions state
that they considered all of the evidence presented, and the written opinions reflect
that they did. And although Margioni presented an expert in Balkan history in
support of his position, this court has previously explained that expert testimony
that is “unsupported by the country reports” does not necessitate reversal. Rivera
v. U.S. Att’y Gen., 487 F.3d 815, 822 (11th Cir. 2007). Moreover, we have
previously held that the State Department country reports for Albania may
properly provide the basis for finding a change of country conditions. See
Mehmeti v. U.S. Att’y Gen., 572 F.3d 1196, 1198–99, 1200 (11th Cir. 2009) (per
curiam) (denying the petition where the evidence of changed conditions in Albania
was derived from the State Department reports); see also Bala v. United States,
429 F. App’x 865, 867, 869 (11th Cir. 2011) (per curiam) (same). We therefore
conclude that substantial evidence supports the findings of the BIA and IJ that the
government rebutted the presumption of future persecution by demonstrating
fundamentally changed conditions in Albania.
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Because Margioni has failed to establish his eligibility for asylum, he has
necessarily failed to meet the higher standard for withholding of removal. See
Djonda, 514 F.3d at 1177.
II
To gain relief under CAT, an alien must show that he will more likely than
not be tortured if removed to his home country. 8 C.F.R. § 208.16(c)(2). For
purposes of CAT, “torture” is
any act by which severe pain or suffering, whether physical or mental,
is intentionally inflicted on a person for such purposes as obtaining
from him or her or a third person information or a confession,
punishing him or her for an act he or she or a third person has
committed or is suspected of having committed, or intimidating or
coercing him or her or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by
or at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.
Id. § 208.18(a)(1). But, “[i]f an alien cannot establish a well-founded fear of
persecution, the alien also cannot establish that it is more likely than not that he
will be tortured based on a protected factor.” Mehmeti, 572 F.3d at 1201 (citations
omitted). Thus, because Margioni cannot meet the standard for asylum, he is
likewise not entitled to CAT relief.
In sum, we find that substantial evidence supports the decision of the BIA
and IJ. We therefore deny Margioni relief on his asylum, withholding of removal,
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and CAT claims.
PETITION DENIED.
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