Refide Bala 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[DO NOT PUBLISH]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
No. 10-14339 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 9, 2011
________________________ JOHN LEY
CLERK
Agency No. A095-476-713
REFIDE BALA,
lllllllllllllllllllllllllllllllllllllll lPetitioner,
versus
U.S. ATTORNEY GENERAL,
lllllllllllllllllllllllll lllllllllllllllRespondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(June 9, 2011)
Before TJOFLAT, BARKETT and KRAVITCH, Circuit Judges.
PER CURIAM:
Refide Bala, a native and citizen of Albania, petitions for review of the
Board of Immigration Appeals’ (“BIA”) decision affirming the Immigration
Judge’s (“IJ”) order finding her removable and denying her reopened application
for asylum under the Immigration and Nationality Act (“INA”), INA § 208, 8
U.S.C. § 1158, and the BIA’s decision denying her accompanying motion to
remand, pursuant to 8 C.F.R. § 1003.1(b)(3).1
Bala’s asylum application was denied initially in 2005. Bala successfully
moved to reopen her asylum proceedings in 2007 upon presenting an affidavit
from an expert asserting that, on account of her membership in the Democratic
Party, it presently would be unsafe for her to return to Albania. At a November
2008 hearing, Bala elicited testimony from the expert that the IJ ultimately
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Bala was admitted into the United States in September 2001, as a non-immigrant visitor
for pleasure. She submitted an application for asylum to the former Immigration and
Naturalization Service (“INS”) on June 24, 2002. After interviewing Bala, the INS referred her
claim to an IJ for consideration as part of a removal proceeding; she was removable because she
had remained in this country after the expiration of her tourist visa. On November 21, 2003,
appearing before an IJ in Hartford, Connecticut, she admitted that she was removable. On
October 17, 2005, after venue for her removal proceedings had been transferred to Miami,
Florida, an IJ heard her application for relief and denied it. On March 14, 2007, the BIA
dismissed her appeal. On June 14, 2007, Bala filed with the BIA a timely motion to reopen. The
BIA granted the motion and remanded the proceedings to the IJ for consideration of new material
evidence relating to the current political atmosphere in Albania. On January 21, 2009, the IJ
found that the new evidence, when considered with the totality of the record evidence, failed to
establish that Bala had an objectively reasonable fear of future persecution on account of her
political opinion, and membership in the Democratic Party, if returned to Albania. On February
5, 2009, Bala appealed to the BIA and subsequently moved the BIA to remand the case to the IJ
so the IJ could consider additional evidence. The BIA dismissed her appeal and denied remand.
This petition for review followed.
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rejected as “at odds” with newly submitted U.S. State Department country reports.
Bala appealed this decision to the BIA, and also filed a separate motion to remand
based on an affidavit from a new expert that purported to discuss changed country
conditions since her latest hearing. The BIA dismissed the appeal, finding that the
IJ was entitled to “rely heavily” on the country reports and concluding that she did
not establish a well-founded fear of future persecution given the reports’
indication that there were no politically motivated killings or disappearances in
Albania. The BIA also denied her motion to remand, concluding that part of the
affidavit did not discuss post-hearing events, and the parts that did either were
immaterial or did not constitute new developments.
Bala argues that the BIA erred in denying her reopened application for
asylum because it relied too heavily on the country reports, and applied an
over-restrictive definition of “persecution” limited to killings and disappearances.
Bala also argues that the BIA abused its discretion in denying her motion to
remand by failing to address the post-hearing conditions addressed in the affidavit,
which presented new evidence of a hostile political situation in Albania that the IJ
should have had a chance to consider in the first instance.
I.
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We review the BIA’s finding that an alien was not eligible for asylum under
the “highly deferential” substantial evidence test, which requires us to affirm the
BIA’s decision if it is “supported by reasonable, substantial, and probative
evidence on the record considered as a whole.” Mehmeti v. U.S. Att’y Gen.,
572 F.3d 1196, 1199 (11th Cir. 2009) (quotation omitted). Thus, we may reverse
“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.” Id. (quotation omitted and emphasis added).
Where, as here, BIA did not explicitly adopt the IJ’s reasoning with respect
to the IJ’s persecution findings, we review only the BIA’s decision. See id.(reviewing only the BIA decision where there was no express adoption).
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 government has the
discretion to grant asylum if the alien establishes that she is a “refugee.” See INA
§ 208(b)(1), 8 U.S.C. § 1158(b)(1). A “refugee” is defined as:
any person who is outside any country of such person’s
nationality . . . 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.
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INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). “The [INA] protects against
persecution not only by government forces but also by nongovernmental groups
that the government cannot control.” Sanchez v. U.S. Att’y Gen., 392 F.3d 434,
437 (11th Cir. 2004) (quotation omitted).
In order to qualify for asylum, “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.” Mehmeti, 572 F.3d at 1199 (quotation omitted).
“Persecution” is not defined in the INA, but this Court has indicated that it
is “an extreme concept, requiring more than a few isolated incidents of verbal
harassment or intimidation.” Id. (quotation omitted). “An applicant who has
demonstrated past persecution is presumed to have a well-founded fear of future
persecution.” Id. at 1200 (quotation omitted); 8 C.F.R. § 208.13(b)(1). No such
presumption exists if an alien fails to establish past persecution. Imelda v. U.S.
Att’y Gen., 611 F.3d 724, 728 n.3 (11th Cir. 2010).
Nevertheless, an applicant may also establish a well-founded fear of
persecution without proving past persecution. Kazemzadeh v. U.S. Att’y Gen.,
577 F.3d 1341, 1352 (11th Cir. 2009). To establish a well-founded fear, an alien
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must show “a reasonable possibility he or she would be singled out individually
for persecution,” or that she would be identified with a persecuted group. Djonda
v. U.S. Att’y Gen., 514 F.3d 1168, 1174 (11th Cir. 2008) (quotation omitted). 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.” Mehmeti, 572 F.3d at 1200(quotation omitted) (emphasis in original). The alien must establish a fear that is
both “subjectively genuine and objectively reasonable.” Id. (quotation omitted).
“The subjective component is generally satisfied by the applicant’s credible
testimony that he or she genuinely fears persecution.” Id. (quotation omitted).
“[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. (quotation
omitted).
In evaluating whether a well-founded fear exists, the BIA may “rely
heavily” on U.S. State Department country reports. Imelda, 611 F.3d at 728; see
also Mehmeti, 572 F.3d at 1198-200 (holding that substantial evidence supported
the BIA’s decision to deny asylum to an Albanian national when information in
the country reports indicated changed country conditions that negated the
presumption that he possessed an objective, well-founded fear of future
persecution). Use of country reports “cannot substitute for an analysis of the
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unique facts of each applicant’s case.” Imelda, 611 F.3d at 729 (quotation
omitted). Rather, in determining if changed country conditions exist, the BIA
must undertake “an individualized analysis that focuses on the specific harm
suffered and the relationship to it of the particular information contained in the
relevant country reports.” Id. (quotation omitted) (holding that the BIA erred in
relying solely on a country report that did not address the alien’s claims with
specificity and where the BIA’s conclusions differed in part from the report).
However, we will not reweigh “from scratch” the importance that the BIA
places on a given country report. Djonda, 514 F.3d at 1175 (quoting Rojas v. INS,
937 F.2d 186, 190 n.1 (5th Cir. 1991)). Further, we have noted that testimony of
an expert that was “unsupported by the country reports” did not compel a reversal,
and accordingly upheld the BIA’s decision to deny asylum. See Rivera v. U.S.
Att’y Gen., 487 F.3d 815, 822-23 (11th Cir. 2007).
Upon review of the record and consideration of the parties’ briefs, we deny
Bala’s petition for review. The testimony presented by Bala’s expert witnesss was
insufficiently specific to establish that she personally had an objective reason to
fear persecution as a member of the Democratic Party, particularly where this
party now controls the Albanian national government. Because the expert
provided only minimal support to Bala’s case, and was not otherwise corroborated,
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substantial evidence supported the BIA’s decision to defer to the country reports
in concluding that she did not have a well-founded fear of future persecution.
II.
Where an alien has filed a motion to remand with the BIA based upon new
evidence, we generally review the motion as a motion to reopen under 8 C.F.R.
§ 1003.2(c). Chacku v. U.S. Att’y Gen., 555 F.3d 1281, 1286 (11th Cir. 2008).
We review the denial of such motions for abuse of discretion. Id.Motions to reopen are especially disfavored in removal proceedings,
“where, as a general matter, every delay works to the advantage of the deportable
alien who wishes merely to remain in the United States.” Ali v. U.S. Att’y Gen.,
443 F.3d 804, 808 (11th Cir. 2006) (quotations omitted). The BIA has the
discretion to deny a motion to reopen for, among other things, failure to introduce
evidence that was material and previously unavailable. Li v. U.S. Att’y Gen.,
488 F.3d 1371, 1375 (11th Cir. 2007). “An alien who attempts to show that the
evidence is material bears a heavy burden and must present evidence that
demonstrates that, if the proceedings were opened, the new evidence would likely
change the result in the case.” Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256-57
(11th Cir. 2009).
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The BIA is required to give reasoned consideration to the evidence and
make “adequate findings.” See Mezvrishvili v. U.S. Att’y Gen., 467 F.3d 1292,
1295 (11th Cir. 2006). Where the BIA fails to make adequate findings, we are
“unable to review the decision” and must remand. Id. (quotation omitted)
(remanding case for the BIA to make adequate findings). However, the BIA need
not discuss every piece of evidence presented. See Tan v. U.S. Att’y Gen.,
446 F.3d 1369, 1374 (11th Cir. 2006).
After careful review, we deny Bala’s petition in this respect. Bala was not
entitled to relief on her motion to remand, properly construed as a motion to
reopen. The majority of the “new” evidence concerned events that transpired long
before her November 2008 hearing. To the extent that the affidavit concerned
post-hearing events, these events were immaterial to her position that she faced
persecution as a member of the Democratic Party. We also note that the BIA
determined as much in denying Bala’s motion, and therefore made sufficient
findings.
PETITION FOR REVIEW DENIED.
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