Myslim Male v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-14286
SEPTEMBER 7, 2010
Non-Argument Calendar
JOHN LEY
________________________ CLERK
Agency No. A076-410-902
MYSLIM MALE,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(September 7, 2010)
Before EDMONDSON, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
Myslim Male, a native and citizen of Albania, petitions for review of the
order by the Board of Immigration Appeals (BIA) affirming the Immigration
Judge’s (IJ) denial of asylum.1 No reversible error has been shown; we dismiss the
petition in part and deny it in part.
We review the IJ’s and BIA’s decisions in this case. See Al Najjar v.
Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001) (noting that we review the BIA’s
decision; but “[i]nsofar as the [BIA] adopts the IJ’s reasoning, we will review the
IJ’s decision as well”). We review de novo legal determinations of the BIA. Id.We review factual determinations under the “highly deferential” substantial
evidence test; and we must affirm a “decision if it is supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” Forgue
v. U.S. Attorney Gen., 401 F.3d 1282, 1286 (11th Cir. 2005) (citation omitted). To
reverse a fact determination, we must conclude “that the record not only supports
reversal, but compels it.” Mendoza v. U.S. Attorney Gen., 327 F.3d 1283, 1287
(11th Cir. 2003).
1
The decision also denied withholding of removal and relief under the Convention
Against Torture. But on appeal, Male offers no argument on these claims; and thus, he has
abandoned them. See Sepulveda v. U.S. Attorney Gen., 401 F.3d 1226, 1228 n.2 (11th Cir.
2005) (explaining that petitioner abandons an issue by failing to offer argument on that issue).
2
An alien may obtain asylum if he is a “refugee,” that is, 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” a protected ground, including political
opinion or membership in a particular social group. 8 U.S.C. §§ 1101(a)(42)(A);
1158(a)(1), (b)(1). The asylum applicant bears the burden of proving statutory
“refugee” status with specific and credible evidence. Forgue, 401 F.3d at 1287.
An asylum applicant who has established past persecution on a protected
ground is presumed to have a well-founded fear of future persecution on the basis
of the original claim. 8 C.F.R. § 208.13(b)(1). The government may rebut this
presumption by showing, by a preponderance of the evidence, either (1) a change
in the country’s conditions, or (2) that relocation within the country would avoid
future persecution and that it was reasonable to expect the alien to do so. 8 C.F.R.
§ 208.13(b)(1)(i)(A), (B). An alien who cannot show past persecution “must
demonstrate a well-founded fear of future persecution that is both subjectively
genuine and objectively reasonable.” Ruiz v. U.S. Attorney Gen., 440 F.3d 1247,
1257 (11th Cir. 2006).
Male sought asylum based on his political opinion and his membership in
the Albanian army. He alleged that he and his family had been persecuted for
supporting democracy groups under Albania’s Communist regime. Both his
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grandfather and father had been political prisoners. Male himself was unable to
attend school after junior high and was forced to work long hours as a farm laborer
despite his young age. In 1995, the Democratic Party gained control in Albania;
and Male no longer faced the same restrictions that he had under the Communist
regime. He decided to join the army for a five-year term. But in 1997, while he
was in the United States for army training, the Socialist Party gained parliamentary
control in Albania. Male decided to stay in the United States because he feared
that, if he returned to Albania, the Socialists in power would persecute him for his
pro-democracy views and desertion from the army.
The IJ concluded that Male and his family had suffered past persecution
based on their pro-democracy views under the Communist regime; but the IJ
determined that the government had rebutted the presumption that Male had a well-
founded fear of future persecution based on his political opinion because the
political conditions in Albania had changed.2 The IJ also concluded that no record
evidence supported Male’s claim that he had a well-founded fear of future
persecution based on his army desertion. The BIA agreed with the IJ’s reasoning.
On appeal, Male argues that the government failed to rebut the presumption that he
2
The BIA remanded the IJ’s original order because the IJ improperly placed the burden
on Male -- instead of the government -- to demonstrate the he would suffer persecution in the
future. On remand, the parties submitted additional evidence and testimony about current
country conditions in Albania.
4
had a well-founded fear of future persecution based on his political opinion.3 We
disagree.
Both the documents submitted by the government and the testimony by Male
evidenced that the Democratic Party regained parliamentary control in 2005. And
since 1998, there had been no outbreaks of political violence and it did not appear
that either major political party pursued policies of abuse or coercion against their
political opponents. Also since the Democratic Party regained control, Male’s
family had not been arrested or physically harmed. Although Male submitted
affidavits from his family’s neighbors stating that his family had been threatened
by the “regime in power” after Male remained in the United States, this evidence
concerned times before the Democratic Party regained control in 2005. And Male
testified that when he lived in Albania under Democratic rule, he experienced no
problems. Thus, the circumstances giving rise to the past political persecution of
Male no longer were present.
3
Male also argues that the administrative record contained no information relevant to the
country conditions in Albania after 2007 (when the IJ rendered its decision) and, thus, we cannot
determine whether his fears of persecution are realistic today. But Male did not identify as an
issue or call into question the diminishing relevance of the administrative record before the BIA;
therefore, we lack jurisdiction to review this claim. See Amaya-Artunduaga v. U.S. Attorney
Gen., 463 F.3d 1247, 1250-51 (11th Cir. 2006) (we will not review an issue or claim that was not
presented to the BIA in the petitioner’s notice of appeal or brief to the BIA). We dismiss the
petition for review on this claim.
5
Male argues that the IJ relied too heavily on select statements from the 2006
State Department’s Country Report on conditions in Albania. But “the substantial
evidence test does not allow us to reweigh from scratch the importance to be
placed on [country reports].” See Djonda v. U.S. Attorney Gen., 514 F.3d 1168,
1175 (11th Cir. 2008) (the IJ and BIA are “entitled to rely heavily on country
reports” because the State Department is the most appropriate resource on foreign
nations’ political conditions). The evidence presented by the government -- which
included both the Country Report and Male’s own testimony about his experiences
-- sufficiently showed changed country conditions that negated the presumption
that Male had a well-founded fear of future persecution in Albania based on his
political opinion.
Male also contends that he faces the possibility of excessive punishment for
his army desertion as a pretext for punishing his opposition to the socialist military
regime.4 But substantial evidence also supports the IJ’s and BIA’s conclusions that
Male had no well-founded fear of future persecution based on his desertion from
the army. While Male may be subject to legitimate prosecution and imprisonment
4
We note that, contrary to Male’s assertion, the IJ and BIA did not err in concluding that
Male was unentitled to a rebuttable presumption of a well-founded fear of future persecution on
the basis of his army desertion. The IJ’s original past persecution determination was only about
Male’s and his family’s persecution based on their pro-democracy views, not Male’s
membership in or desertion from the army.
6
for army desertion upon return to Albania, mere prosecution for violating
legitimate, generally applicable state laws does not constitute persecution unless
the alien shows that the prosecution is based on a statutorily protected ground and
that the punishment under the law is sufficiently extreme to constitute persecution.
See Scheerer v. U.S. Attorney Gen., 445 F.3d 1311, 1315-16 (11th Cir. 2006).
And here, the record lacks any evidence that the current Democratic government
will prosecute Male as a pretext for his anti-socialist political opinion.
The IJ’s and BIA’s decisions that Male is unentitled to asylum are supported
by reasonable, substantial, and probative evidence on the record considered as a
whole; and we are not compelled to reverse the decisions. See Forgue, 401 F.3d at
1286.
PETITION DISMISSED IN PART AND DENIED IN PART.
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