Nesimi v. Gonzales , 233 F. App'x 11 ( 2007 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 06-2168
ZYBER NESIMI,
Petitioner,
v.
ALBERTO GONZALES, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella and Lipez, Circuit Judges,
and Stafford,* Senior District Judge.
Andrew P. Johnson and Law Offices of Andrew P. Johnson, P.C.,
on brief for petitioner.
Lindsay L. Chichester, Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, Peter D.
Keisler, Assistant Attorney General, and James A. Hunolt, Senior
Litigation Counsel, on brief for respondent.
May 31, 2007
*
Of the Northern District of Florida, sitting by designation.
Per Curiam. Petitioner, Zyber Nesimi ("Nesimi"), seeks
review of an order of the Board of Immigration Appeals ("BIA")
affirming the decision of the Immigration Judge ("IJ") to deny
Nesimi's application for asylum, withholding of removal, and
protection under the Convention Against Torture ("CAT"). Finding
no merit to Nesimi's arguments, we affirm the BIA's order and deny
the petition for review.
I.
Nesimi is a native and citizen of Albania who entered the
United States on May 20, 2003, at Miami, Florida, using a
fraudulent Italian passport. Approximately one year after he
entered the country, Nesimi filed an application for asylum with
the Department of Homeland Security ("DHS"). After Nesimi was
interviewed by an asylum officer, the DHS referred Nesimi's
application to the Immigration Court, which promptly placed Nesimi
in removal proceedings by issuing him a notice to appear. Nesimi
was charged with being removable as an immigrant who did not
possess a valid entry document at the time of admission.
At an initial hearing before the IJ, Nesimi conceded
removability as charged, renewed his application for asylum, and
requested withholding of removal, protection under CAT, and, in the
alternative, voluntary departure. After a merits hearing, the IJ
denied all of Nesimi's requests for relief. Although the IJ found
Nesimi to be generally credible, accepting as truthful his
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testimony about politically-motivated beatings and threats, she
nonetheless found that Nesimi failed to establish either past
persecution or a well-founded fear of future persecution sufficient
to give rise to eligibility for asylum. In addition, the IJ
denied Nesimi's requests for withholding of removal and protection
under CAT. The IJ also denied Nesimi's request for voluntary
departure and ordered him removed to Albania, explaining that she
lacked confidence that Nesimi would voluntarily depart based on his
history of using elaborate and deceptive means to gain admission to
the United States.
The BIA dismissed Nesimi's appeal. The BIA first found
that, even if the detentions and beatings experienced by Nesimi
constituted persecution on account of his political opinion, the
presumption of a well-founded fear of persecution in the future was
satisfactorily rebutted under 8 C.F.R. § 1208.13(b)(1)(i)(A) by
documentary evidence demonstrating a fundamental change in
circumstances in Albania. The BIA next found that the harm
suffered by Nesimi, even if persecutory, was not so severe as to
constitute a compelling reason under 8 C.F.R. §
1208.13(b)(1)(iii)(A) to grant asylum in the absence of a well-
founded fear of persecution. The BIA further found that, by
failing to satisfy the lower burden of proof required for asylum,
Nesimi necessarily failed to satisfy the similar but higher burden
of proof required for withholding of removal. Finally, the BIA
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found that Nesimi failed to establish eligibility for CAT
protection because he failed to demonstrate that it was more likely
than not that he would be tortured if removed to Albania.
In finding a change in circumstances in Albania, the BIA
relied on three documents issued by the United States Department of
State: (1) Albania: Profile of Asylum Claims and Country Conditions
(2004) ("2004 Profile"); (2) Albania: Country Reports on Human
Rights Practices—2002 (2003) ("2002 Country Report"); and (3)
Albania: Country Reports on Human Rights Practices—2003 (2004)
("2003 Country Report"). Together, these reports reveal that
politically-motivated violence in Albania has decreased
significantly in recent years. The 2004 Profile, for example,
states:
[T]here have been no major outbreaks of
political violence since 1998, and the
available evidence suggests that neither the
Government nor the major political parties
engage in policies of abuse or coercion
against their political opponents. Though
serious political repression existed in the
past, there are no indications of systemic
political persecution in Albania at the
present time.
2004 Profile at 3. The 2004 Profile also reveals that local
elections in 2000 were carried out in a calm and orderly manner
with very few incidents of violence, that parliamentary elections
in 2001 involved isolated cases of police harassment but no
systemic or organized mistreatment, and that municipal elections in
2003 "were generally free of violence and considered the most
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transparent in Albania's short democratic history, with no police
interference." Id. at 5. The 2002 and 2003 Country Reports paint
a similar picture of widely improving conditions, with no confirmed
cases of detainees being held strictly for political reasons, no
confirmed cases of political killings by the Government or its
agents, and no reports of politically-motivated disappearances.
2002 Country Report at 2, 4; 2003 Country Report at 1, 2, 5.
II.
Our review, directed to the BIA's decision, is de novo on
questions of law but deferential as to factual findings.
Mukamusoni v. Ashcroft, 390 F.3d 110, 119 (1st Cir. 2004). Under
the deferential standard, a reviewing court must accept the BIA's
factual findings if they are "supported by reasonable, substantial,
and probative evidence on the record considered as a whole." INS
v. Elias-Zacarias, 502 U.S. 478, 481 (1992). In effect, we will
not set aside the BIA's factual findings unless "the record
evidence would compel a reasonable factfinder to make a contrary
determination." Guzman v. INS, 327 F.3d 11, 15 (1st Cir. 2003).
This deferential standard applies not only to asylum claims but
also to withholding of removal and CAT claims. Settenda v.
Ashcroft, 377 F.3d 89, 93 (1st Cir. 2004).
An asylum applicant bears the burden of proving that he
is unable or unwilling to return to his home country "because of
persecution or a well-founded fear of persecution on account of
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race, religion, nationality, membership in a particular social
group, or political opinion." 8 U.S.C. § 1101(a)(42)(A). An
applicant may meet this burden either by demonstrating a well-
founded fear of future persecution based on one of the five
statutory grounds, or by establishing that he has suffered past
persecution, in which case he is entitled to a rebuttable
presumption of a well-founded fear of future persecution.1 8
C.F.R. § 208.13(b)(1). If the presumption arises, the burden
shifts to the DHS to prove either 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" or that "the applicant could avoid future
persecution by relocating to another part of the applicant's
country of nationality." Id. at § 208.13(b)(1)(i)(A)-(B); see also
Orelien v. Gonzales, 467 F.3d 67, 71 (1st Cir. 2006). Here, based
largely on State Department reports of country conditions, the BIA
found that the record evidence demonstrated a fundamental change in
circumstances in Albania.
To reverse the BIA's factual finding regarding changed
circumstances, this court must find that a "reasonable adjudicator
1
The BIA may also, in its discretion, grant asylum to an alien
who demonstrates "compelling reasons for being unwilling or unable
to return to the country arising out of the severity of the past
persecution." 8 C.F.R. § 208.13(b)(1)(ii). The BIA in this case
denied such a discretionary grant of asylum, and that denial has
not been challenged by Nesimi.
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would be compelled to conclude to the contrary." 8 U.S.C. §
1252(b)(4)(B); Tota v. Gonzales, 457 F.3d 161, 165 n.8 (1st Cir.
2006) (noting that "[f]indings as to changed circumstances are
usually factual determinations"). Unfortunately for Nesimi, the
evidence in this case falls far short of compelling a conclusion
that country conditions in Albania have not undergone a fundamental
change since Nesimi left the country.
While not binding, State Department country reports and
profiles are "generally probative of country conditions" and may,
in themselves, be sufficient to rebut the presumption of future
persecution. Chreng v. Gonzales, 471 F.3d 14, 22 (1st Cir. 2006).
Indeed, in the case of Albania, this court has on a number of
occasions concluded that State Department reports constituted
substantial evidence supporting the BIA's conclusion that country
conditions in Albania had improved to the point that any
presumption of a well-founded fear of future prosecution based on
political opinion was successfully rebutted. See Alibeaj v.
Gonzales, 469 F.3d 188, 192 (1st Cir. 2006) (finding the State
Department's 2003 Country Report sufficient to show that
circumstances had changed in Albania "so fundamentally since
Alibeaj left in 2001 as to obviate her otherwise well-founded fear
of future persecution"); Tota v. Gonzales, 457 F.3d at 167 (finding
the government's submission of the 2004 State Department Profile of
Asylum Claims sufficient to rebut Albanian petitioner's presumptive
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well-founded fear of future persecution); Bollanos v. Gonzales, 461
F.3d 82, 86 (1st Cir. 2006) (upholding BIA's denial of asylum where
BIA submitted the State Department's 2003 Country Report and 2004
Profile to demonstrate changed circumstances in Albania).
Nesimi contends that the BIA erred by relying on the
State Department reports of changed country conditions. He
suggests that the country reports are general in nature and,
therefore, do not adequately rebut his own showing of "specific
personal danger." He maintains that the BIA wrongly overlooked the
State Department's conclusion that "Albania remains a country with
a high degree of organized crime, corruption, serious—but
declining—problems with trafficking in persons, and often
inadequate police protection for the vulnerable." 2004 Profile at
3; see Bollanos, 461 F.3d at 86 (explaining that "a high incidence
of police misconduct, if not directed at a protected class of
people, does not prove eligibility for asylum"). He points to
nothing, however, that would compel a finding that, with regard to
political repression, country conditions in Albania have not
changed for the better.
Although he has a wife, five sisters and three brothers
who continue to live in Albania, including a brother active in the
same political party with which Nesimi was involved, Nesimi offered
no evidence that any of these individuals has been persecuted on
protected grounds since he left Albania in 2003. He offered no
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background materials to counter the information provided in the
State Department reports, and he offered nothing to suggest that,
at the present time, serious political repression exists in
Albania.
Because substantial evidence supports the BIA's
conclusion that, even if Nesimi suffered from past politically-
motivated persecution, any fear of future persecution is not well-
founded based on the changed conditions in Albania, we must affirm
the BIA's denial of Nesimi's asylum application.
III.
An individual seeking protection under CAT must
"establish that it is more likely than not that he or she would be
tortured if removed to the proposed country of removal." 8 C.F.R.
§ 1208.16(c)(2). "For an act to constitute torture . . . it must
be: (1) an act causing severe physical or mental pain or suffering;
(2) intentionally inflicted; (3) for a proscribed purpose; (4) by
or at the instigation of or with the consent or acquiescence of a
public official who has custody or physical control of the victim;
and (5) not arising from lawful sanctions." Elien v. Ashcroft, 364
F.3d 392, 298 (1st Cir. 2004); see also 8 C.F.R. 1208.18(a)(2)
(providing that "torture is an extreme form of cruel and inhuman
treatment and does not include lesser forms of cruel, inhuman or
degrading treatment or punishment that do not amount to torture").
Nesimi contends that the BIA erred by failing to consider
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his CAT claim independently from his asylum and withholding claims.
The record, however, belies Nesimi's contention. While the BIA did
not elaborate on Nesimi's CAT claim, it specifically stated that
the claim was denied because Nesimi "has not demonstrated that it
is more likely than not that he would be tortured for any reason if
removed to Albania." BIA Decision at 2. The BIA thus used the
correct more-likely-than-not standard for CAT claims, which is not
the same standard used for asylum or for withholding of removal
claims. That the BIA did not elaborate about why it found that
Nesimi failed to make a more-likely-than-not showing of future
torture does not mean—as Nesimi suggests—that the BIA improperly
conflated the different standards.
IV.
Because we find that the BIA's conclusions were supported
by substantial evidence, we AFFIRM the BIA's decision and DENY
Nesimi's petition for review.
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