Daniela Gjergjaj v. U.S. Attorney General , 358 F. App'x 98 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Dec. 23, 2009
No. 09-12170 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency Nos. A098-900-077
A098-900-078
DANIELA GJERGJAJ,
a.k.a. Luciana Liberti,
JASMINA GJERGJAJ,
a.k.a. Oriana Boccalini,
FRANC GJERGJAJ,
a.k.a. Renatto Boccalini,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(December 23, 2009)
Before BLACK, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Daniela Gjergjaj is a native and citizen of Albania. On her own behalf and
for her two minor children, she seeks review of the Board of Immigration Appeals’
decision affirming the Immigration Judge’s denial of her application for asylum,
withholding of removal, and relief under the United Nations Convention Against
Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment.
Gjergjaj contends that she is entitled to relief based on her credible testimony about
the circumstances surrounding her husband’s murder. She asserts that she proved a
nexus between the alleged persecution and her imputed political opinion.
“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). “Insofar as the Board adopts the IJ’s reasoning, we will review the IJ’s
decision as well.” Id. Here, the BIA agreed with reasoning of the IJ, so we
consider both decisions. Our jurisdiction to review those decisions is limited to
matters properly raised and administratively exhausted in the proceedings before
the IJ and the BIA. Amaya-Artunduaga v. United States Att’y Gen., 463 F.3d
1247, 1250-51 (11th Cir. 2006).
We review de novo a legal challenge to the BIA’s decision. Mohammed v.
Ashcroft, 261 F.3d 1244, 1247 (11th Cir. 2001). The factual findings are reviewed
under the substantial evidence test. Al Najjar, 257 F.3d at 1283. That test requires
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us to affirm the BIA’s decision if it is “supported by reasonable, substantial, and
probative evidence on the record considered as a whole.” Al Najjar, 257 F.3d at
1284 (quotation marks omitted). The BIA’s findings of fact “may be reversed by
this court 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.” Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir.
2004) (en banc).
Gjergjaj testified before the IJ that her husband had been active with the
Democratic Party in Albania, had served as a police officer with the special forces,
and had enemies in the opposing Socialist Party. She asserted that her husband had
been murdered by a masked gunman who was a member of the Socialist Party.
The IJ found that Gjergjaj’s testimony was “internally consistent” and that “she
attempted to testify credibly.” A newspaper article in the administrative record,
however, indicated that Gjergjaj’s husband had been murdered because of a blood
feud. On cross-examination Gjergjaj testified that there had been a blood feud, but
it had occurred about seventy years ago. Despite her credible testimony, the IJ
found that Gjergjaj failed to show that her husband was murdered on account of a
protected ground. The IJ reasoned that Gjergjaj “may have very strong subjective
beliefs that her husband was killed on account of political opinion, but it is not
supported in the record.” The IJ also noted that anonymous calls Gjergjaj received
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after her husband’s death indicated a financial motive for the murder.
The BIA agreed that “the record indicates that the killing was a personal and
criminal matter resulting from a blood feud.” The BIA emphasized that, apart
from the psychological trauma related to Mr. Gjergjaj’s murder, there was no
evidence that Gjergjaj or her children had been personally harmed or that anyone
had attempted to harm them in Albania. The BIA also focused on the fact that
country conditions in Albania had changed since Gjergjaj’s husband was murdered
and that the Democratic Party was now in power. Furthermore, Gjergjaj’s mother
and brother continued to live safely in Albania without persecution.
The evidence in the record does not compel reversal of the BIA’s decision.
Even though Gjergjaj’s testimony was credible, substantial evidence in the record
supports the IJ and BIA’s finding that Gjergjaj failed to show that her husband was
murdered because of his political opinion. See Rodriguez Morales v. United
States Att’y Gen., 488 F.3d 884, 890 (11th Cir. 2007)); see also 8 U.S.C. §
1231(b)(3). In addition to the newspaper report referring to a blood feud, some of
Gjergjaj’s testimony indicated that her husband was killed for financial motives
rather than because of his political opinion. See Rodriguez Morales, 488 F.3d at
891. Substantial evidence also supports the IJ and BIA’s finding that Gjergjaj
failed to show that she had a well-founded fear of persecution because her
husband’s political opinion would be imputed to her. Although she heard some
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rumors that someone might kidnap her son, no one harmed or attempted to harm
Gjergjaj and her children in Albania. See Silva v. United States Att’y Gen., 448
F.3d 1229, 1237–38 (11th Cir. 2006) (“Because the record does not compel the
conclusion that the past treatment to which Silva was subjected was on account of
her political opinion, [petitioner’s] subjective fear of future persecution is not
objectively well-founded.”). Also, Gjergjaj’s mother and brother remain unharmed
in Albania. See Ruiz v. United States Att’y Gen., 440 F.3d 1247, 1259 (11th Cir.
2006) (stating that “Ruiz’s claim was contradicted by his testimony that his son
and his parents have remained unharmed in the region of Colombia where Ruiz
allegedly was threatened”). Finally, evidence in the record indicates that country
conditions have changed with the Democratic Party’s rise to power. See 8 C.F.R. §
208.16(b)(1)(i).
The BIA’s denial of asylum is supported by substantial evidence on the
record considered as a whole. See Forgue v. United States Att’y Gen., 401 F.3d
1282, 1286 (11th Cir. 2005). Because Gjergjaj “has failed to establish a claim of
asylum on the merits, [s]he necessarily fails to establish eligibility for withholding
of removal or protection under CAT.” Id. at 1288 n.4.
PETITION DENIED.
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