Nineta Ndreu v. Us Attorney General , 455 F. App'x 921 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-10209 ELEVENTH CIRCUIT
Non-Argument Calendar JANUARY 25, 2012
________________________ JOHN LEY
CLERK
Agency No. A079-469-468
NINETA NDREU,
ENGELEDA NDREU,
TOM NDREU,
lllllllllllllllllllllllllllllllllllllll lPetitioners,
versus
U.S. ATTORNEY GENERAL,
llllllllllllllllllllllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(January 25, 2012)
Before BARKETT, MARCUS and FAY, Circuit Judges.
PER CURIAM:
Nineta Ndreu, her husband Tom Ndreu, and their daughter Engeleda Ndreu,
all natives and citizens of Albania, seek review of the Board of Immigration
Appeals’s (“BIA”) final order affirming the Immigration Judge’s (“IJ”) denial of
their application for asylum, withholding of removal, and relief under the United
Nations Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (“CAT”), 8 U.S.C. §§ 1158(a), 1231(b)(3); 8 C.F.R.
§ 208.16(c).1 For the reasons stated below, we deny the Ndreus’ petition for
review.
I. FACTS AND PROCEEDINGS
Nineta and Tom Ndreu entered the United States in 2000 on non-immigrant
visas, and Engeleda Ndreu entered the country separately in 2001. Subsequently,
the Department of Homeland Security served all three with Notices to Appear
(“NTA”), charging them as removable pursuant to INA § 237(a)(1)(B), 8 U.S.C.
§ 1227(a)(1)(B), for remaining in the United States longer than permitted.
However, at the removal hearing, Engeleda testified that she entered the United
States using fraudulent documents, whereupon the government amended her NTA,
charging her as removable under INA § 212(a)(6)(A)(i), 8 U.S.C.
1
The Ndreus do not argue in their brief to this Court that they were entitled to CAT
relief, and, therefore, they have abandoned the claim. Sepulveda v. U.S. Att’y Gen., 401 F.3d
1226, 1228 n.2 (11th Cir. 2005) (“When an appellant fails to offer argument on an issue, that
issue is abandoned.”).
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§ 1182(a)(6)(A)(i), for being present in the country without having been admitted
or paroled. Engeleda expressly conceded to this new charge after consulting with
her lawyer.
Previously, at the start of the removal hearing, the IJ introduced into
evidence the 2006 Profile of Asylum Claims and Country Conditions for Albania,
issued by the U.S. Department of State. The IJ read aloud several excerpts from
this report, which stated that there had been no outbreaks of political violence in
Albania since 1998, that neither the government nor the major political parties
engaged in “policies of abuse or coercion against their political opponents,” and
that, despite serious political repression in the past, there were no indications of
“systemic political persecution in Albania at the present time.” Also introduced
into evidence was the State Department’s 2008 Human Rights Report for Albania,
which provided, in relevant part, that there had been “no reports of politically
motivated disappearances” in Albania, and “no reports of political prisoners or
detainees.”
During the hearing, Tom Ndreu presented most of the substantive
testimony, describing how he and his family had been persecuted for their support
of the Democratic Party in Albania by members of the opposing Socialist Party.
The most serious incidents of persecution included the non-fatal shooting of
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Tom’s daughter-in-law, the detonation of a bomb inside Tom’s shop, which was
located in same building where he lived, and the murder of his cousin, who was a
Democratic Party activist.
On cross-examination by the government, Tom acknowledged that the
Democratic Party had been in control of Albania since 2005 and that he and his
family had not directly experienced any problems when the Democratic Party last
controlled the country in the mid-1990s. Relying on this information, as well as
the State Department’s country reports, the government argued in closing that,
even if the Ndreus had suffered past persecution, they had no well-founded fear of
future persecution.
The IJ issued an oral decision, finding that the Ndreus’ experiences in
Albania amounted to past persecution and created a presumption of future
persecution. However, the IJ also found that the government had rebutted this
presumption by showing that country conditions in Albania had fundamentally
changed since the Ndreus left in 2000. Accordingly, the IJ denied the Ndreus’
claims for relief and ordered them removed from the United States.
The Ndreus appealed to the BIA, and the Board affirmed and adopted the
IJ’s decision. The Ndreus filed a timely petition for review of that order.
Subsequently, they moved the BIA to reconsider its decision, but the BIA denied
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their motion, finding no error in its original dismissal of their appeal. The Ndreus
did not file a petition for review of the BIA’s order denying reconsideration.
II. ANALYSIS
The Ndreus raise three main arguments in their petition for review.2 First,
they contend that the IJ erred in failing to shift the burden of proof to the
government to rebut the presumption of a well-founded fear of future persecution.
Second, they argue that one report by the U.S. Department of State was
insufficient to show fundamentally changed country conditions in Albania.
Finally, they assert that the government violated Engeleda’s due process rights
when it amended her NTA during the removal hearing, even though she never
admitted to entering without inspection and did not have time to testify or present
evidence of her entry.
2
The Ndreus also raise several issues that are not subject to our review. First, the Ndreus
challenge the BIA’s order denying their motion for reconsideration. Because they did not file a
petition for review of that order, we lack jurisdiction to review it. See INA § 242(a)(5), 8 U.S.C.
§ 1252(a)(5) (“[A] petition for review filed with an appropriate court of appeals . . . shall be the
sole and exclusive means for judicial review of an order of removal.”). Moreover, the Ndreus
argue that the IJ did not allow them an opportunity to show eligibility for “humanitarian asylum.”
See infra note 3. We lack jurisdiction to review this issue because the Ndreus did not raise it
before the BIA, thereby failing to exhaust their administrative remedies. See Amaya-Artunduaga
v. U.S. Att’y Gen., 463 F.3d 1247, 1250-51 (11th Cir. 2006) (holding that we lack jurisdiction to
review claims that have not been raised before the BIA, even where the BIA addresses them sua
sponte). Finally, the Ndreus characterize one of their issues as “whether country conditions in
Albania have changed so much that the Petitioners no longer have an objective well-founded
fear” of returning. However, they make no substantive arguments regarding conditions in
Albania, or whether those conditions have, in fact, fundamentally changed since they left. Thus,
they have abandoned any claims in this regard. See Sepulveda, 401 F.3d at 1228 n.2.
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We generally review only the BIA’s opinion as the final judgment, but
where the BIA “expressly adopts the immigration judge’s reasoning,” we review
the IJ’s decision as well. Todorovic v. U.S. Att’y Gen., 621 F.3d 1318, 1324 (11th
Cir. 2010). In this case, the BIA expressly adopted the IJ’s decision that changed
circumstances in Albania rebutted the Ndreus’ presumption of future persecution,
and, therefore, we review both the BIA’s and the IJ’s decisions regarding this
issue. See id.We review the BIA’s and the IJ’s factual determinations under the highly
deferential substantial-evidence test and will affirm if their decisions are
“supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1350-51
(2009) (quotation omitted). The IJ’s and the BIA’s legal conclusions are reviewed
de novo. Kazemzadeh, 577 F.3d at 1350.
To be eligible for asylum, an alien must establish, with credible evidence,
either past persecution or a well-founded fear of future persecution on account of
political opinion or another protected ground. Sepulveda v. U.S. Att’y Gen., 401
F.3d 1226, 1230-31 (11th Cir. 2005).3 An alien who has established past
3
An alien may qualify for asylum based on past persecution alone, without showing a
well-founded fear of future persecution, if the alien establishes “compelling reasons for being
unwilling or unable to return to the country arising out of the severity of the past persecution,” or
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persecution “shall also be presumed to have a well-founded fear of persecution on
the basis of the original claim.” 8 C.F.R. § 1208.13(b)(1). However, this
presumption may be rebutted and asylum denied if the IJ finds, by a
preponderance of the evidence, that “[t]here has been a fundamental change in
circumstances such that the applicant no longer has a well-founded fear of
persecution in the applicant’s country of nationality,” or that internal relocation is
possible and reasonable. Id. § 1208.13(b)(1)(i)(A)-(B). The regulations expressly
place the burden of proof on the government to rebut the presumption of a well-
founded fear of persecution. Id. § 1208.13(b)(1)(ii); Sanchez Jimenez v. U.S. Att’y
Gen., 492 F.3d 1223, 1232 (11th Cir. 2007) (“[T]he government bears the burden
to show by a preponderance of the evidence . . . that conditions in the country have
changed.”).
Regarding withholding of removal, the pertinent regulations are virtually
identical to those for asylum. See 8 C.F.R. § 1208.16(b)(1). Specifically, if an
alien establishes past persecution, a presumption arises that the alien’s “life or
freedom would be threatened” upon removal, and the government may rebut that
a “reasonable possibility that he or she may suffer other serious harm upon removal.” 8 C.F.R.
§ 1208.13(b)(1)(iii). This provision describes what is known as “humanitarian asylum,” which
may be granted only if the alien shows that his past persecution was “sufficiently severe or had
long-lasting effects.” Mehmeti v. U.S. Att’y Gen., 572 F.3d 1196, 1200-01 (11th Cir. 2009).
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presumption by showing, through a preponderance of the evidence, that there has
been “a fundamental change in circumstances such that the applicant’s life or
freedom would not be threatened” after deportation. Id. § 1208.16(b)(1)(i)-(ii).
A. Burden-shifting
In this case, the IJ properly placed the burden of proof on the government to
show that conditions in Albania had fundamentally changed, such as to rebut the
Ndreus’ presumption of future persecution. In his oral decision, the IJ expressly
stated that the government had established changed country conditions in Albania
and rebutted the Ndreus’ presumption of future persecution. The government
concedes that it did not submit the determinative country reports, but it is
undisputed that these reports were, in fact, submitted into evidence without
objection, and the regulations do not prohibit the IJ from sua sponte placing such
reports into evidence. Cf. Lorisme v. INS, 129 F.3d 1441, 1445 (11th Cir. 1997)
(stating that the BIA acted appropriately by taking “some measure of
administrative notice” regarding country conditions).
The government may meet its burden of proof by relying on evidence
already before the IJ, regardless of who submitted such evidence. The record
indicates that the government tried to meet its burden of proving changed country
conditions by cross-examining Tom and by making relevant arguments in closing.
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In light of the above, we conclude that the IJ did not fail to shift the burden of
proof to the government to rebut the Ndreus’ presumption of future persecution, as
required by the regulations. See 8 C.F.R. §§ 1208.13(b)(1)(ii), 1208.16(b)(1)(ii).
B. Sufficiency of the Country Reports
To begin, the Ndreus are mistaken in their assertion that the IJ relied on
only one country report for a finding of changed country conditions, as the IJ
expressly relied on both the 2006 Profile of Asylum Claims and the 2008 Human
Rights Report. We have previously stated that the agency may “rely heavily” on
these sources, Djonda v. U.S. Att’y Gen., 514 F.3d 1168, 1175 (11th Cir. 2008),
and nothing in our precedent suggests that two country reports issued by the State
Department are per se insufficient to establish changed country conditions to rebut
a presumption of future persecution, see Mehmeti, 572 F.3d at 1198-1200 (holding
that substantial evidence supported the BIA’s finding of changed country
conditions in Albania where the alien argued that the IJ erred in relying solely on
reports prepared by the U.S. Department of State).
In Imelda v. U.S. Att’y Gen., we stated that the “use of country reports
cannot substitute for an analysis of the unique facts of each applicant’s case” and
that “information about general changes in a country is insufficient.” 611 F.3d
724, 729 (11th Cir. 2010) (quotation and alteration omitted). Rather, “the
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determination of whether the presumption [of future persecution] is rebutted
requires 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).
In his decision, the IJ described in detail how the Ndreus were persecuted in
Albania, mostly due to their support of the Democratic Party and their opposition
to the Socialist Party. In finding that country conditions had fundamentally
changed, the IJ relied on specific portions of the country reports, which indicated
that Albania suffered from little political violence or repression at the present time
and that major political parties, such as the Socialist Party, no longer mistreated
their political opponents. Therefore, the IJ acted in accordance with Imelda and
considered the specific harm suffered by the Ndreus and its relationship to
particular information contained in the relevant country reports. See Imelda, 611
F.3d at 729.
C. Due Process
Where the BIA has not addressed an issue put before it, we generally
remand the case back to the agency, except in “rare circumstances.” Calle v. U.S.
Att’y Gen., 504 F.3d 1324, 1329 (11th Cir. 2007). Such “rare circumstances” may
exist where, as here, the unaddressed issue is legal and procedural, rather than
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factual. See id. at 1329-30 (reviewing the unaddressed issue of whether the alien,
in moving the BIA to reconsider its earlier decision, sufficiently specified errors of
fact or law and supported the motion by pertinent authority). Accordingly, we
may review the unaddressed issue of whether Engeleda suffered a due process
violation when the government amended her NTA at the removal hearing.
Our review is brief, however, because contrary to the Ndreus’ assertions,
Engeleda expressly conceded removability under the government’s amended NTA,
admitting that she was removable pursuant to INA § 212(a)(6)(A)(i), 8 U.S.C.
§ 1182(a)(6)(A)(i), as an alien who entered without inspection. Moreover, the
record shows that Engeleda consulted with her attorney before pleading to the
amended charge and had ample opportunity to testify regarding her entry.
Accordingly, no due process violation occurred in this regard.
Having reviewed the record and the parties’ briefs, we deny the Ndreus’
petition for review.
PETITION DENIED.
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