Miska Besnik v. U.S. Attorney General , 572 F. App'x 872 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-15524
Non-Argument Calendar
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Agency No. A200-042-042
MISKA BESNIK,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(July 23, 2014)
Before TJOFLAT, JORDAN and FAY, Circuit Judges.
PER CURIAM:
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Besnik Miska,1 is a native and citizen of Albania. He was admitted to the
United States under the Visa Waiver Program on November 5, 2005.2 He petitions
this court to review the final order of the Board of Immigration Appeals (“BIA”)
affirming the Immigration Judge’s (“IJ”) denial of his application for asylum and
withholding of removal. His petition presents two issues: (1) whether substantial
evidence supports the IJ’s and BIA’s determination that he failed to demonstrate a
well-founded fear of future persecution; (2) whether the BIA erred in failing to
consider his claim for humanitarian asylum. We deny his petition.
I.
We review the decision of the BIA as well as any portions of the IJ’s opinion
that the BIA expressly adopted. Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341,
1350 (11th Cir. 2009). We review the IJ’s decision to the extent that the BIA
expressly agrees with the IJ’s reasoning. Id. We review the BIA’s conclusions of
1
The case styling reflects that the petitioner’s name is “Miska Besnik,” though the record
makes clear that the petitioner’s name is “Besnik Miska.”
2
Under the Visa Waiver Program, aliens from certain countries are permitted to visit the
United States for 90 days or less without a visa. See Immigration and Nationality Act (“INA”) §
217(a). Under section 217(b)(2) of the INA, 8 U.S.C. § 1187(b)(2), Visa Waiver Program
applicants agree to waive any challenge to their removal. Thus, they are not entitled to
removal proceedings under section 240, 8 U.S.C. § 1229a. 8 C.F.R. § 1208.2(c)(1)(iii).
Applicants are, however, permitted to apply for asylum, withholding of removal, and CAT
protection. INA § 217(b)(2), 8 U.S.C. § 1187(b)(2). Applicants may pursue their asylum
application before an immigration judge in “asylum only”proceedings, and the court retains
jurisdiction to review such proceedings. See Nreka v. U.S. Att’y Gen., 408 F.3d 1361, 1366-
68 (11th Cir. 2005).
In the proceedings below, Miska sought CAT protection. In the brief he filed in support
of his petition for review, he abandoned the claim. We therefore make no reference to the claim.
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law de novo but its factual findings under the substantial evidence test.
Kazemzadeh, 577 F.3d at 1350. In determining whether substantial evidence
supports the decision at hand, our review is highly deferential. Id. at 1351. That
is, we must not reweigh the importance the BIA attributed to the evidence in the
record. Djonda v. U.S. Att’y Gen., 514 F.3d 1168, 1175 (11th Cir. 2008). We take
that evidence in the light most favorable to the BIA’ decision, drawing all
reasonable inferences in favor of that decision, and reverse its findings of fact only
when the record compels a reversal. Id. Thus, 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). In sum, we must affirm the
BIA’s decision “if it is supported by reasonable, substantial, and probative
evidence on the record considered as a whole.” D-Muhumed v. U.S. Att’y Gen.,
388 F.3d 814, 818 (11th Cir. 2004) (quotation omitted).
An alien who is present in the United States may apply for asylum.
Immigration and Nationality Act (“INA”) § 208(a)(1), 8 U.S.C. § 1158(a)(1). The
Attorney General 3 has the discretion to grant asylum if the alien meets his burden
of proving his status as a “refugee.” INA § 208(b)(1)(A), 8 U.S.C.
§ 1158(b)(1)(A); 8 C.F.R. § 208.13(a); Al Najjar v. Ashcroft, 257 F.3d 1262, 1284
(11th Cir. 2001). A “refugee” is, in relevant part, any person outside the country of
3
Our references to the Attorney General are to the Secretary of the Department of
Homeland Security as well.
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his nationality, who is “unable or unwilling to return to, and is unable or unwilling
to avail himself . . . of the protection of, that country because of persecution or a
well-founded fear of persecution on account of” a protected ground. INA
§ 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A).
An asylum applicant must establish either: “(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.” Li Shan Chen v. U.S. Att’y Gen., 672 F.3d 961,
964 (11th Cir. 2011) (quotation omitted). An applicant establishes eligibility for
asylum based on a well-founded fear of future persecution if he demonstrates that
he has a subjectively genuine and objectively reasonable fear of persecution. Silva
v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006). If the applicant
demonstrates past persecution on account of a protected ground, there is a
rebuttable presumption that he has a well-founded fear of future persecution. Tan
v. U.S. Atty. Gen., 446 F.3d 1369, 1375 (11th Cir. 2006). The Attorney General
may rebut this presumption if it shows by a preponderance of the evidence that
there has been a fundamental change in circumstances in the applicant’s home
country such that the applicant no longer has a well-founded fear of persecution on
account of a protected ground: race, religion, nationality, membership in a
particular social group, or political opinion. Antipova v. U.S. Att’y Gen., 392 F.3d
1259, 1264 (11th Cir. 2004); 8 C.F.R. § 208.13(b)(1)(i)(A).
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Although there is no bright line rule for what constitutes a fundamental
change in circumstances, the change must be one that is sufficient to rebut the
presumption that the applicant’s life or freedom would be threatened upon
returning to his home country. Imelda v. U.S. Att’y Gen., 611 F.3d 724, 729 (11th
Cir. 2010). The BIA is permitted to rely heavily on Department of State reports
when making this determination, as long as the BIA does not fail to account for the
applicant’s unique circumstances. Id. at 728-29.
To obtain withholding of removal, an applicant must establish that his “life
or freedom would be threatened in that country because of [her] race, religion,
nationality, membership in a particular social group, or political opinion.” INA
§ 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A). An applicant for withholding of
removal must show a “clear probability of persecution,” or that he will more likely
than not be persecuted if deported. Nkacoang v. INS, 83 F.3d 353, 355 (11th Cir.
1996). This standard is more stringent than the “well-founded fear of future
persecution” required for asylum. Tan, 446 F.3d at 1375. Accordingly, if an
applicant is unable to meet the “well-founded fear” standard for asylum, he is
generally precluded from qualifying for either asylum or withholding of removal.
Nkacoang, 83 F.3d at 355.
Substantial evidence supports the BIA and the IJ’s conclusion that Miska
failed to establish a well-founded fear of future persecution because the Attorney
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General had shown a fundamental change in the conditions in Albania. The 2010
Humanitarian Report states that that there were no reports of arbitrary or unlawful
killings by the government, there were no reports of politically motivated
disappearances, and political parties operated without restriction or outside
interference. Moreover, the 2010 Guidance Note states that the Democratic Party,
Miska’s former party, is in power, a number of political parties operate throughout
the country, political parties operate without restrictions or outside interference,
political parties are able to register and contest elections, there is no evidence of
persecution, and those claiming to face persecution can seek protection from
authorities or relocate internally. The record does not compel a finding that the
Attorney General failed to rebut the presumption that Miska’s life or freedom
would be threatened upon returning to his home country. Imelda, 611 F.3d at 729.
Accordingly, we deny the petition to the extent that Miska challenges the IJ and the
BIA’s determination that he failed to demonstrate a well-founded fear of future
persecution.
II.
We generally review only the decision of the BIA if it is the final agency
decision. Al Najjar, 257 F.3d at 1284. We consider a question of subject matter
jurisdiction de novo. Kazemzadeh, 577 F.3d at 1350; Amaya-Artunduaga v. U.S.
Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006).
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We lack jurisdiction to consider a claim raised in a petition for review unless
the petitioner has exhausted his administrative remedies with respect the claim.
Amaya-Artunduaga, 463 F.3d at 1250. The exhaustion doctrine requires the
petitioner to raise his claims before the BIA, to ensure that it had a full opportunity
to consider them. Id. The BIA has noted that it is inappropriate for it to consider
an issue not raised before the IJ. See Matter of J-Y-C-, 24 I. & N. Dec. 260, 261
n.1 (BIA 2007). Additionally, the BIA will not engage in fact-finding on appeal. 8
C.F.R. 1003.1(d)(3)(iv).
“An applicant may qualify for asylum even without establishing a well-
founded fear of future persecution if (A) The applicant has demonstrated
compelling reasons for being unwilling or unable to return to the country arising
out of the severity of the past persecution; or (B) The applicant has established that
there is a reasonable possibility that he or she may suffer other serious harm upon
removal to that country.” 8 C.F.R. § 1208.13(b)(1)(iii). This provision describes
what courts refer to as “humanitarian asylum.” Mehmeti v. U.S. Att’y Gen, 572
F.3d 1196, 1200 (11th Cir. 2009).
The BIA must give “reasoned consideration” to a petition for relief from
removal. Perez-Guerrero v. United States Atty. Gen., 717 F.3d 1224, 1232 (11th
Cir. 2013). In doing so, the BIA must consider the issues raised and announce its
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decision in terms sufficient to enable a reviewing court to perceive that it had
“heard and thought and not merely reacted.” Id.
To the extent Miska argues that the BIA denied him due process of law in
failing to consider humanitarian asylum, the argument has not been exhausted; he
presents it for the first time here, in this court. Amaya-Artunduaga, 463 F.3d at
1250. Putting that aside, we hold that the BIA did not err, either by failing to
afford reasoned consideration to his arguments about humanitarian asylum or by
rejecting his contention that the IJ should have considered his entitlement to
humanitarian asylum. First, the BIA clearly considered his humanitarian asylum
argument and found that he had waived the claim to such asylum by not requesting
it before the IJ. The BIA thus satisfied the reasoned consideration standard.
Perez-Guerrero, 717 F.3d at 1232. Second, the BIA did not err in rejecting the
humanitarian asylum argument because BIA precedent is clear: claims cannot be
raised for the first time on appeal. J-Y-C-, 24 I. & N. Dec. at 261 n.1.
PETITION DENIED.
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