[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-15865 ELEVENTH CIRCUIT
JUNE 25, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
Agency No. A079-453-010
RITVAN MEHMETI,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(June 25, 2009)
Before DUBINA, Chief Judge, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Petitioner Ritvan Mehmeti, a native and citizen of Albania, through counsel,
seeks review of the Board of Immigration Appeals’s (“BIA”) order affirming the
Immigration Judge’s (“IJ”) decision denying his application for asylum and
withholding of removal under the Immigration and Nationality Act (“INA”), 8
U.S.C. § 1158, 1231, 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).
In his petition, Mehmeti first argues that the IJ erred in denying his
application for asylum based on its finding that he did not have a well-founded fear
of persecution because the country conditions in Albania had changed. He argues
that the IJ erred in relying solely on reports prepared by the U.S. Department of
State in determining that the conditions in Albania had changed. Because he
established a well-founded fear of persecution, Mehmeti argues, the IJ also erred in
denying his application for withholding of removal. Next, Mehmeti argues that the
BIA erred in denying his request for asylum based solely on the severity of his past
persecution. Finally, Mehmeti argues that the BIA erred in denying his request for
CAT relief, submitting that the BIA failed to show that he would less likely than
not be tortured if returned to Albania.
We review only the BIA’s decision, except where it expressly adopts the IJ’s
decision. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). To the
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extent that the BIA adopts the IJ’s reasoning, we review the IJ’s decision as well.
Id. Here, we will review only the BIA’s decision because it did not expressly
adopt the IJ’s decision or its reasoning. See id.
We review the BIA’s factual determinations under the highly deferential
substantial-evidence test and “must affirm the BIA’s decision if it is supported by
reasonable, substantial, and probative evidence on the record considered as a
whole.” Id. at 1283-84 (internal quotation marks omitted). We can reverse a
finding of fact by the BIA “only when the record compels a reversal; the mere fact
that the record may support a contrary conclusion is not enough to justify a
reversal of the administrative findings.” Adefemi v. Ashcroft, 386 F.3d 1022, 1027
(11th Cir. 2004) (en banc). We review the BIA’s legal determinations de novo.
Lopez v. U.S. Att’y Gen., 504 F.3d 1341, 1344 (11th Cir. 2007).
I. Denial of Asylum and Withholding of Removal
An alien who arrives in or is present in the United States may apply for
asylum. INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Attorney General or
Secretary of the Department of Homeland Security has discretion to grant asylum
if the requirements and procedures established for application are met, and the
alien meets the INA’s definition of a refugee. INA § 208(b)(1), 8 U.S.C.
§ 1158(b)(1)(A). The definition of refugee includes:
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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.
INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). The asylum applicant bears the
burden of proving that he qualifies as a refugee. 8 C.F.R. § 208.13(a). In order to
meet this burden, “the applicant must, with specific and credible evidence,
establish (1) past persecution on account of a statutorily protected ground or (2) a
well-founded fear of future persecution on account of a protected ground.” Mejia
v. U.S. Att’y Gen., 498 F.3d 1253, 1256 (11th Cir. 2007).
Persecution is not defined in the INA, but we have discussed other circuits’
holdings that it is “an extreme concept, requiring more than a few isolated
incidents of verbal harassment or intimidation.” Sepulveda v. U.S. Att’y Gen., 401
F.3d 1226, 1231 (11th Cir. 2005) (internal quotation marks omitted). In
determining whether an alien has suffered past persecution, the BIA considers the
cumulative impact of the alleged incidents of persecution. Delgado v. U.S. Att’y
Gen., 487 F.3d 855, 861-62 (11th Cir. 2007).
“An applicant who has demonstrated past persecution is presumed to have a
well-founded fear of future persecution.” Mejia, 498 F.3d at 1257; 8 C.F.R.
§ 208.13(b)(1). The presumption can be rebutted by a showing that “[t]here has
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been a fundamental change in circumstances such that the applicant no longer has a
well-founded fear of persecution” or the “applicant could avoid future persecution
by relocating to another part of the applicant’s country of nationality.” 8 C.F.R.
§ 208.13(b)(1)(i) (A) & (B).
To establish a well-founded fear of future persecution, an alien “need only
show that there is a reasonable possibility of suffering such persecution if he or she
were to return to that country.” Mejia, 498 F.3d at 1256 (internal quotation marks
and alteration omitted). The alien must establish a fear that is both “subjectively
genuine and objectively reasonable.” Al Najjar, 257 F.3d at 1289. “The subjective
component is generally satisfied by the applicant’s credible testimony that he or
she genuinely fears persecution.” Id. “[T]he objective prong can be fulfilled either
by establishing past persecution or that he or she has a good reason to fear future
persecution.” Id. (internal quotation marks omitted). An alien must establish a
nexus between a statutorily protected ground and the feared persecution and can do
so by presenting “specific, detailed facts showing a good reason to fear that he or
she will be singled out for persecution on account of” such ground. Sepulveda,
401 F.3d at 1231 (internal quotation marks omitted). An alien does not have to
prove he would be singled out if he can establish a pattern or practice of
persecution of a group of which he is a member. 8 C.F.R. § 208.13(b)(2)(iii). An
alien who fails to establish that he has a well-founded fear of persecution
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necessarily fails to establish eligibility for withholding of removal. See Silva v.
U.S. Att’y Gen., 448 F.3d 1229, 1243 (11th Cir. 2006).
After reviewing the record, we conclude that substantial evidence supports
the BIA’s determination that changed country conditions in Albania negated the
presumption that Mehmeti had a well-founded fear of persecution in Albania,
which made him ineligible for asylum or withholding of removal.
II. Denial of Humanitarian Asylum
An applicant may qualify for asylum even without establishing a
well-founded fear of future persecution if
(A) The applicant has demonstrated compelling reasons for being
unwilling or unable to return to the country arising out of the severity
of the past persecution; or
(B) The applicant has established that there is a reasonable possibility
that he or she may suffer other serious harm upon removal to that
country.
8 C.F.R. § 1208.13(b)(1)(iii). This provision describes what courts refer to as
“humanitarian asylum.” See Ixtlilco-Morales v. Keisler, 507 F.3d 651, 656 & n.4
(8th Cir. 2007) (describing asylum granted under 8 C.F.R. § 1208.13(b)(1)(iii)(A)
as “humanitarian asylum”). While we have not addressed humanitarian asylum in
a published opinion, the Second Circuit has reviewed the denial of such relief
under the substantial-evidence standard. See Jalloh v. Gonzales, 498 F.3d 148,
151-52 (2d Cir. 2007).
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The BIA has interpreted this form of relief to require an applicant first to
show “severe harm” and “long-lasting effects.” See In re N-M-A, 22 I. & N. Dec.
312, 326 (BIA 1998); see also Mazariegos v. Office of U.S. Att’y Gen., 241 F.3d
1320, 1327 n.4 (11th Cir. 2001) (explaining that an agency’s interpretation of its
own regulations is entitled to “great deference,” and that “[t]he degree of deference
is especially great in the field of immigration”). Moreover, as persuasive authority,
other circuits that have reviewed applications for humanitarian asylum have
concluded that this relief is reserved for the most extraordinary cases. See
Gonahasa v. U.S. I.N.S., 181 F.3d 538, 544 (4th Cir.1999) (holding that
“[e]ligibility for asylum based on severity of persecution alone is reserved for the
most atrocious abuse”); Bucur v. I.N.S., 109 F.3d 399, 405 (7th Cir. 1997)
(characterizing humanitarian asylum as being reserved for “extreme cases” such as
the German Jews, victims of the Chinese “Cultural Revolution,” and survivors of
the Cambodian genocide); Krastev v. I.N.S., 292 F.3d 1268, 1280 (10th Cir. 2002)
(explaining that past persecution must have been so severe that it would “so sear a
person with distressing associations with his native country that it would be
inhumane to force him to return there, even though he is in no danger of future
persecution” (internal quotation marks omitted)).
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The record here demonstrates that substantial evidence supports the BIA’s
denial of Mehmeti’s request for humanitarian asylum because he did not show that
his past persecution was sufficiently severe or had long-lasting effects.
III. Denial of CAT Relief
To be eligible for relief under CAT, an alien has the burden to show that he
will, more likely than not, be tortured if removed to his country of removal.
8 C.F.R. § 208.16(c)(2). Torture is defined as
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.
8 C.F.R. § 208.18(a)(1). If 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. Al Najjar, 257 F.3d at 1303-04;
Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1288 n.4 (11th Cir. 2005).
We conclude from the record that substantial evidence supports the BIA’s
determination that Mehmeti failed to show that he more likely than not would be
tortured by, or with the acquiescence of, the Albanian government, if he returned to
his country of removal. Thus, he was not entitled to relief under CAT.
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Accordingly, we deny Mehmeti’s petition for review.
PETITION DENIED.
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