Denis Skendaj v. US Attorney General ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Dec. 11, 2009
No. 09-10057 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A095-535-777
DENIS SKENDAJ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(December 11, 2009)
Before BARKETT, HULL and WILSON, Circuit Judges.
PER CURIAM:
Denis Skendaj, a native and citizen of Albania, through counsel, petitions for
review of the Board of Immigration Appeals’ (“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(a), 1231(b)(3)(A), 8 C.F.R. § 208.16, 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). Skendaj argues that (1)
the BIA erred in finding that the government rebutted the presumption of his
well-founded fear of future persecution by showing changed conditions in Albania,
and (2) he suffered from atrocious forms of persecution in Albania so that he is
entitled to asylum based on humanitarian or other compelling reasons, even if
conditions in the country have changed.
I. Withholding of Removal and CAT Claims
Skendaj does not argue on his appeal to this Court that we should grant him
withholding of removal or relief under CAT. Instead, he argues that asylum is his
preferred form of relief. Although Skendaj, in the conclusion to his brief, requests
that we grant him withholding of removal, he does not sufficiently argue this issue
in his brief. He also does not request relief under CAT. Therefore, he abandons
his petition for withholding of removal and CAT relief. See Sepulveda v. U.S.
Att’y Gen., 401 F.3d 1226, 1228–29 n.2 (11th Cir. 2005) (per curiam) (holding that
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“[w]hen an appellant fails to offer argument on an issue, that issue is abandoned,”
and that “passing references to issues are insufficient to raise a claim for appeal,
and such issues are deemed abandoned” (citation omitted)).
II. Changed Country Conditions
Skendaj argues that he established that he was entitled to asylum based upon
his political opinion. He contends that the IJ never shifted the burden to the
government to rebut the presumed well-founded fear of future persecution. Rather,
he contends the IJ relied solely upon the fact that the Democratic Party recently
won Albania’s national elections to conclude that country conditions had changed.
Skendaj relies on various country reports to contend that Albania’s conditions have
not changed to such an extent as to eviscerate the presumption of a well-founded
fear of future persecution. He argues that nothing in the evidence indicates that his
persecutors are no longer officers in the State Intelligence Service. Furthermore,
Skendaj argues that the IJ erred by taking administrative notice of Albania’s
changed conditions because these were adjudicative facts to which he had no
opportunity to respond.
We review only the BIA’s decision, “except to the extent that it expressly
adopts the IJ’s opinion.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.
2001). We review factual determinations by the BIA “under the substantial
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evidence test.” Id. at 1283. Under the highly deferential substantial evidence test,
we “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 1284
(quotation and citation omitted). Therefore, to reverse a credibility determination,
“we must find that the record not only supports reversal, but compels it.” Mendoza
v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003) (citation omitted). The
fact that the record could support a contrary conclusion is not sufficient to justify a
reversal of the BIA’s findings. Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th
Cir. 2004) (en banc) (citation omitted).
To qualify for asylum, an alien must be a “refugee.” See 8 U.S.C. §
1158(b)(1), INA § 208(b)(1). A “refugee” includes any person who is unable or
unwilling to return to his home country or to avail himself of that country’s
protection “because of persecution or a well-founded fear of persecution on
account of . . . political opinion . . . .” 8 U.S.C. § 1101(a)(42). The asylum
applicant carries the burden of proving statutory “refugee” status. 8 U.S.C. §
1158(b)(1)(B)(i), INA § 208(b)(1)(B)(i); 8 C.F.R. § 208.13(a). The applicant
satisfies this burden by showing, with credible evidence: (1) past persecution on
account of a statutorily-listed factor (such as political opinion), or (2) a
well-founded fear that his statutorily-listed factor will cause future persecution.
8 C.F.R. § 208.13(a), (b).
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An applicant who has demonstrated past persecution is presumed to have a
well-founded fear of future persecution. 8 C.F.R.§ 208.13(b)(1). To rebut the
presumption of future persecution, the government must show by a preponderance
of the evidence that “[t]here has been a fundamental change in circumstances such
that the applicant no longer has a well-founded fear of persecution” or that 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).
The record demonstrates that substantial evidence supports the BIA’s
determination that changed country conditions in Albania negated the presumption
that Skendaj had a well-founded fear of persecution in Albania based upon his past
persecution. Skendaj’s entire asylum claim focused on the persecution that
Skendaj suffered from the Socialist Party because he was a member of the
Democratic Party. However, the BIA found that “on September 3, 2005, the
Democratic Party and its allies took control of Parliament with 81 of the 140 seats,
and following a smooth transition of power the new government was sworn in on
September 11, with Democratic Party leader Sali Berisha as the new Prime
Minister.” A.R. at 3 (citing U.S. Dep’t of State, Albania: Profile of Asylum Claims
and Country Conditions (Mar. 2006)). Because the Democratic Party is now in
power, it is unlikely that Skendaj’s fellow party members will persecute him. This
“fundamental change in circumstances” suggests that Skendaj “no longer has a
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well-founded fear of persecution.” 8 C.F.R. § 208.13(b)(1)(i)(A). While he argues
that his Socialist Party persecutors may still be in power, despite the fact that the
Democratic Party won the 2005 election, he fails to support his contention with
evidence from the record.
Skendaj fails to provide legal support for his contention that the IJ erred by
not shifting the burden to the government to rebut Skendaj’s presumption of a
well-founded fear of future persecution. An IJ may find that a petitioner’s
presumption of a well-founded fear of future persecution has been rebutted by a
change in country conditions. 8 C.F.R. § 208.13(b)(1)(i)(A). The law does not
explicitly state that an IJ must express that he has shifted the burden to the
government, nor does it state that an IJ may not independently find that a
petitioner’s well-founded fear of future persecution has been rebutted. See 8
C.F.R. § 208.13(b)(1)(i) (giving discretion to an IJ to deny an application if
changed conditions are “found by a preponderance of the evidence”). Here, the IJ
considered the country report that was admitted into evidence, and found that it
rebutted Skendaj’s presumption of well-founded fear of persecution. Because an
IJ may make such a finding, the IJ did not err.
Skendaj argues that the BIA erred by taking administrative notice of
Albania’s country report. However, the BIA is entitled to “rely heavily” on the
State Department’s country reports because the “State Department is the most
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appropriate and perhaps the best resource the [BIA] could look to in order to obtain
information on political situations in foreign nations.” Reyes-Sanchez v. U. S. Att’y
Gen., 369 F.3d 1239, 1243 (11th Cir. 2004) (quotation and citation omitted); see
also Mehmeti v. U.S. Att’y Gen., 572 F.3d 1196, 1199, 1200 (per curiam) (finding
that substantial evidence supported the BIA’s conclusion that conditions had
changed in Albania, even though the IJ solely relied on State Department reports);
Bregu v. U.S. Att’y Gen., 11th Cir. 2009, __ F.3d __, at *2 (No. 08-13136, January
8, 2009) (finding substantial evidence supported changed conditions in Albania).
Thus, the BIA did not err by considering the country report to determine that
Albania’s country conditions had changed. In sum, substantial evidence supports
the BIA’s determination that changed country conditions rebutted Skendaj’s
presumption of well-founded fear of persecution.
III. Humanitarian Asylum
Skendaj argues that the IJ and BIA erred by failing to grant “humanitarian
asylum.” Even if a petitioner does not establish a well-founded fear of future
persecution, the IJ may grant an applicant humanitarian asylum on a discretionary
basis if the applicant 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)(iii)(A); see also Mehmeti, 572 F.3d at 1200. Skendaj
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concludes that, even if we hold that Albania’s conditions have sufficiently changed
to negate the well-founded fear of future persecution, we should remand for an
evidentiary hearing to determine whether he had compelling circumstances.
However, Skendaj only quoted the standard for humanitarian relief stated
above in his appeal to the BIA and did not go on to discuss it further. See A.R. at
13 (quoting 8 C.F.R. § 208.13(b)(1)(iii)(A)). Instead, his appeal to the BIA only
centered on whether he had established a well-founded fear of future persecution.
Furthermore, his request for humanitarian relief was not raised at all to the IJ.
We cannot review Skendaj’s claim that he should receive asylum based on
humanitarian or other compelling reasons because this claim was not raised before
the IJ or the BIA and, therefore, is unexhausted. We lack jurisdiction to consider
claims raised in a petition for review where the petitioner did not exhaust his
administrative remedies. See Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d
1247, 1250 (11th Cir. 2006) (per curiam) (holding that we lack jurisdiction to
consider claims that have not been raised before the BIA). Therefore, we dismiss
this claim.
Upon review of the record and consideration of the parties’ briefs, we deny
Skendaj’s petition, in part, and dismiss his petition, in part.
PETITION DENIED in part, DISMISSED in part.
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