Albert Isenaj v. Eric Holder, Jr.

Case: 09-60480 Document: 00511213335 Page: 1 Date Filed: 08/24/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 24, 2010
No. 09-60480
Summary Calendar Lyle W. Cayce
Clerk
ALBERT ISENAJ,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
B.I.A. No. A098 282 238
Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Albert Isenaj, a citizen of the former Serbia-Montenegro, now Kosovo,
petitions for review of the Board of Immigration Appeals decision denying his
application for asylum, withholding of removal, and relief under the Convention
Against Torture. To reverse a factual finding by the Board, we must find the
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
Case: 09-60480 Document: 00511213335 Page: 2 Date Filed: 08/24/2010
No. 09-60480
evidence “so compelling that no reasonable factfinder could reach a contrary
conclusion.”1 We review legal conclusions de novo.2
As a threshold marker, an alien must exhaust all administrative remedies
available to him as of right before this court may review a final order.3 For the
first time on appeal to this court, Isenaj argues that the Board used the incorrect
standard of review and impermissibly engaged in factfinding. He has failed to
exhaust all administrative remedies on the issue, and we lack jurisdiction to
review it.4
Isenaj requested asylum based on a presumption of a well-founded fear of
future persecution, citing as evidence his persecution by the Serbs. The Board
correctly determined that the government rebutted this presumption by
presenting evidence of a fundamental change in country conditions in Kosovo as
recounted in the 2003 and 2005 State Department Country Reports. Isenaj does
not have a presumption of a well-founded fear of future persecution arising from
his encounter with and threatening by masked men in 2003, as the Board has
held persecution must be “under government sanction.” 5
Isenaj’s appeal for humanitarian asylum cannot be granted because his
past persecution was not particularly severe in light of the atrocities committed
at the time.6 His Convention Against Torture claim likewise fails, because he
cannot prove that it is “more likely than not” he will be tortured if removed.7
1
Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006).
2
Efe v. Ashcroft, 293 F.3d 899, 903 (5th Cir. 2002).
3
See Omari v. Holder, 562 F.3d 314, 318 (5th Cir. 2009); 8 U.S.C. § 1252(a)(1) & (d).
4
See Omari, 562 F.3d at 320–21.
5
Abdel-Masieh v. INS, 73 F.3d 579, 583–84 (5th Cir. 1996).
6
See Shehu v. Gonzales, 443 F.3d 435, 440 (5th Cir. 2006).
7
See 8 C.F.R. § 1208.16(c)(2); Efe, 293 F.3d at 907.
2
Case: 09-60480 Document: 00511213335 Page: 3 Date Filed: 08/24/2010
No. 09-60480
The petition for review is DENIED.
3