                                                             [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                     FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                       ________________________   ELEVENTH CIRCUIT
                                                              JAN 29, 2010
                             No. 09-11992                      JOHN LEY
                         Non-Argument Calendar               ACTING CLERK
                       ________________________

                        Agency No. A098-938-340

DALIBOR DIMITRIJEVSKI,


                                                                     Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                   Respondent.


                       ________________________

                  Petition for Review of a Decision of the
                       Board of Immigration Appeals
                       _________________________

                            (January 29, 2010)

Before BIRCH, BLACK and PRYOR, Circuit Judges.

PER CURIAM:
      Dalibor Dimitrijevski, a native and citizen of Macedonia, proceeding pro se,

seeks review of the decision by the Board of Immigration Appeals (“BIA”)

denying his asylum application. Although the Immigration Judge (“IJ”) did not

issue a final order of removal, we have jurisdiction to consider the petition for

review because the denial of asylum in an asylum-only proceeding constitutes a

final order of removal for jurisdictional purposes. We lack jurisdiction, however,

to consider Dimitrijevski’s due process claims because he failed to exhaust them

before the BIA. As to his asylum claim, we conclude that substantial evidence

supported the IJ and BIA’s finding that the government rebutted the presumption

of a well-founded fear of future persecution. Accordingly, we DISMISS the

petition in regard to the due process claims and DENY the petition with respect to

his asylum claim.

                                I. BACKGROUND

      Dimitrijevski, a native and citizen of Macedonia, arrived in the United States

at Port Everglades, Florida, on 2 March 2006, as a nonimmigrant alien serving as a

crewman on a Bahamian vessel. On 2 April 2006, the Customs and Border

Protection received notice that Dimitrijevski had deserted the vessel the day before.

The Department of Homeland Security (formerly the Immigration and

Naturalization Service) immediately initiated immigration proceedings, pursuant to

8 U.S.C. § 1282(b), by serving the vessel with a notice to remove Dimitrijevski
                                           2
from the United States. Dimitrijevski subsequently filed an application for asylum

and withholding of removal. After a credible-fear interview, an asylum officer

issued a Notice of Referral to Immigration Judge, thereby placing Dimitrijevski in

asylum-only proceedings under 8 C.F.R. § 208.2(c).

      At the merits hearing, Dimitrijevski testified that he last arrived in the

United States in March 2006 under a crewman visa. For the five months preceding

March 2006, he had entered the United States on a daily basis because he worked

on a ship that provided tours between the Bahamas and Fort Lauderdale, Florida.

Dimitrijevski explained that it was not safe for him to return to Macedonia because

he and his family had been involved in the 2001 war between Albanian rebels and

ethnic Macedonians. Specifically, Albanian rebels occupied approximately half of

Macedonia and forced him out of his village at gunpoint to ethnically cleanse

Macedonia. In June 2001, a commander of the rebels approached Dimitrijevski

outside his home and threatened to cut off his genitals with a knife if his family did

not leave the area, and another rebel fired shots at the roof of his house.

Dimitrijevski testified that, even prior to the war, Albanians sent letters urging his

family to move, damaged their home, beat them, and attacked them with rocks.

The conflict in his village ended in July 2001 after the Albanian rebels forced out

all of the ethnic Macedonians.



                                           3
      Dimitrijevski was afraid to return to Macedonia because he feared the

Albanians would recognize him from his four-month stint as a cook in the

Macedonian military during 2001 and 2002. He believed his village remained

unsafe based on the murder of his best friend’s grandfather three months ago.

According to Dimitrijevski, relocation within Macedonia was impossible because

the country was geographically small and the government could not offer

protection for refugees still in hiding. When asked about his family members,

Dimitrijevski admitted that his mother, brother, and sister had relocated from a

refugee camp to a house in Skopje, Macedonia, the same city where his uncle

lived. Dimitrijevsk’s father had moved to Russia to seek employment.

      In an oral decision, the IJ found Dimitrijevski credible but concluded that his

fear of future persecution was negated by the documentary evidence of changed

country conditions. Furthermore, the IJ found that Dimitrijevski could relocate to

an area occupied by a majority of ethnic Macedonians. The IJ therefore denied

Dimitrijevski’s application for asylum, withholding of removal, and relief under

the Convention Against Torture (“CAT”). The IJ did not enter an order of

removal.




                                          4
       On appeal, the BIA noted that Dimitrijevski failed to contest the IJ’s denial

of withholding of removal and CAT relief.1 With respect to the asylum claim, the

BIA recognized that the IJ failed to make an explicit determination as to whether

Dimitrijevski had suffered past persecution. Even assuming past persecution,

however, the BIA agreed with the IJ that the government had rebutted the

presumption of a well-founded fear of future persecution by establishing changed

country conditions, and that Dimitrijevski could safely relocate within Macedonia.

The BIA therefore dismissed the appeal.

       This petition for review followed.

                                     II. DISCUSSION

A. Jurisdiction over Dimitrijevski’s Asylum Claim

       We review de novo our subject matter jurisdiction. Resendiz-Alcaraz v.

U.S. Att’y Gen., 383 F.3d 1262, 1266 (11th Cir. 2004). When examining a

petition for review, “we must first consider whether we have subject matter

jurisdiction to hear the petition at all.” Id. Accordingly, we initially address

whether we have jurisdiction to consider the petition for review of the BIA’s denial




       1
         Likewise, Dimitrijevski does not raise any argument in his petition to us regarding the
denial of his application for withholding of removal or CAT relief. He has therefore abandoned
these issues. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (per
curiam).
                                                 5
of Dimitrijevski’s asylum application even though the IJ did not expressly order

Dimitrijevski’s removal.2

      A nonimmigrant alien who arrives as a crewman may be permitted to land

temporarily in the United States. See 8 U.S.C. § 1282(a) (2009). However, if an

immigration officer determines that the crewman does not intend to depart on the

vessel, or is not a bona fide crewman, the officer may revoke the conditional

permit and order the crewman removed without undertaking further removal

proceedings under 8 U.S.C. § 1229. See id. § 1282(b). If the crewman indicates

an intention to apply for asylum, he will be referred to an IJ for asylum-only

proceedings. See 8 C.F.R. § 208.2(c)(3)(i) (2009).

      Pursuant to 8 U.S.C. § 1252(a)(1), we have jurisdiction to review a final

order of removal. See 8 U.S.C. § 1252(a)(1) (2009); Nreka v. United States Att’y

Gen., 408 F.3d 1361, 1367 (11th Cir. 2005). Because Dimitrijevski was placed in

asylum-only proceedings under § 208.2(c)(3), no formal order of removal was

entered by the IJ. Nevertheless, we have held that we have jurisdiction to review

the BIA’s final disposition of an asylum-only proceeding under § 208.2(c) even in

the absence of a final order of removal. See Nreka, 408 F.3d at 1367-68. In

Nreka, an Albanian citizen sought admission to the United States under the Visa

Waiver Program (“VWP”). See id. at 1363. Nreka requested asylum and was

      2
          Both parties briefed this issue in response to our jurisdictional question.
                                                   6
placed in asylum-only proceedings pursuant to 8 C.F.R. §§ 217.4(a)(1) and

208.2(c). See id. at 1363-64. The IJ denied asylum and withholding of removal

under the INA and the CAT, but the IJ did not expressly order Nreka removed.

See id. at 1365-66. The BIA agreed that Nreka’s claim was not credible and

dismissed his appeal. See id. at 1366. We determined that we had jurisdiction to

review his claim under 8 U.S.C. § 1252(a)(1) because the denial of asylum and

withholding of removal in Nreka’s case constituted a final order of removal for

jurisdictional purposes. See id. at 1367. We reasoned that “[t]he denial of an

asylum application in a VWP proceeding is so closely tied to the removal of the

alien that it can be deemed – in conjunction with the referral to the immigration

judge – as a final order of removal, subject to § 1252(a)(1).” Id.

      The rationale of Nreka applies to the case at hand. As in Nreka,

Dimitrijevski was referred to an IJ for an asylum-only proceeding, the IJ denied

asylum and withholding of removal, and the IJ did not expressly order

Dimitrijevski removed. Like a VWP applicant, an alien crewman who is not

granted relief in an asylum-only proceeding may be removed without further

proceedings. See 8 U.S.C. § 1282(b). The BIA’s denial of an asylum application

for an alien crewman is thus so interwoven with the alien’s removal that it can be

deemed a final order of removal for purposes of the jurisdictional requirement of

§ 1252(a)(1). See Nreka, 408 F.3d at 1367.
                                          7
      The government argues that Nreka is distinguishable because VWP

participants waive their right to challenge their removal, except with respect to

asylum claims. See 8 U.S.C. § 1187(b)(2) (2009) (requiring an alien admitted

under the VWP to waive any right “to contest, other than on the basis of an

application for asylum, any action for removal of the alien”). Unlike VWP

participants, Dimitrijevski can still dispute the terms of removal once he receives

his Notice of Revocation and Penalty informing him that his conditional landing

permit has been revoked and his removal has been ordered pursuant to 8 U.S.C.

§ 1282(b).

      The VWP waiver-of-rights provision was not a basis for our holding in

Nreka, however, because Nreka had not yet been admitted under the VWP but

merely identified as a “VWP applicant.” Nreka, 408 F.3d at 1363, 1366 n.5.

Rather, Nreka relied on the principle espoused in Perkovic v. INS, 33 F.3d 615,

618-19 (6th Cir. 1994), that a BIA order rejecting an asylum application may

constitute a final order of removal even though no formal order of removal has

been issued. See Nreka, 408 F.3d at 1367. As the Sixth Circuit explained in

Perkovic, an order of deportation (or removal) includes not only “the piece of

paper authorizing the government” to remove the alien but also “any denial of

discretionary relief during a deportation proceeding, where such relief, if granted,

would foreclose deportation.” Perkovic, 33 F.3d at 618. This principle applies
                                          8
equally to VWP applicants and crewman aliens, like Dimitrijevski, whose

conditional landing permits are subject to revocation. Furthermore, Nreka relied

upon Del Pilar v. United States Att’y Gen., 326 F.3d 1154, 1156-57 (11th Cir.

2003) (per curiam). See Nreka, 408 F.3d at 1367. In Del Pilar, we held that a BIA

order reversing the IJ’s decision to grant Del Pilar relief from removability

amounted to a final order of removal because “all of the issues presented to us

were subject to a final order by the BIA and there is nothing remaining for Del

Pilar to appeal.” See Del Pilar, 326 F.3d at 1156-57. The same is true here. Even

absent the Notice of Revocation and Penalty, all the issues presented in the petition

for review were subject to the final order by the BIA denying asylum, so there is

nothing left for Dimitrijevski to appeal to the BIA.

       Accordingly, we conclude that the rationale of Nreka applies to the denial of

asylum applications for crewman aliens. We therefore have jurisdiction to review

his asylum claim under § 1252(a)(1).3

B. Jurisdiction over Dimitrijevski’s Due Process Claims

       Dimitrijevski next asserts that the IJ violated his constitutional and statutory

due process rights to a full and fair hearing by not complying with the agency’s


       3
          Given our conclusion, we do not reach Dimitrijevski’s alternative argument that we
have jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(B)(ii). In Nreka, we noted that this section,
unlike § 1252(a)(1), “contains no language that could be interpreted as requiring that the
petitioner be subject to a ‘final order of removal’” and thus “may itself provide a grant of
jurisdiction to review any denial of asylum.” Nreka, 408 F.3d at 1367 n.7.
                                                  9
procedural regulations. Specifically, Dimitrijevski asserts that (1) the IJ never

notified him that if he were ordered removed, the country of removal would be the

one designated by Dimitrijevski, (2) the IJ never provided him the opportunity to

designate a country of removal, (3) the IJ never designated a country for removal,

and (4) the IJ never permitted him to present evidence regarding his fear of

persecution in the countries where he had a lesser connection.

      “We lack jurisdiction to consider claims raised in a petition for review

unless the petitioner has exhausted his administrative remedies with respect

thereto.” Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir.

2006) (per curiam); see also 8 U.S.C. § 1252(d)(1). Procedural due process claims

are subject to the exhaustion requirement. See Amaya-Artunduaga, 463 F.3d at

1251 (concluding that the alleged denial of a full and fair hearing before the IJ is

the type of procedural due process error that requires exhaustion). Dimitrijevski

did not raise before the BIA the IJ’s alleged procedural due process violations that

he now raises in the petition for review. Accordingly, we lack jurisdiction to

review these claims. See id.

C. Denial of Asylum

      Turning to the merits of Dimitrijevski’s asylum claim, we review only the

BIA’s decision, “except to the extent that it expressly adopts the IJ’s opinion.”

Nreka, 408 F.3d at 1368 (quotation marks and citation omitted). We review de
                                          10
novo the BIA or IJ’s legal determinations. Id. “The IJ’s factual determination that

an alien is not entitled to asylum must be upheld if it is supported by reasonable,

substantial, and probative evidence on the record considered as a whole.” Id.

(quotation marks and citation omitted).

       To qualify for asylum, an alien has the burden of presenting specific and

credible evidence showing (1) past persecution on account of a statutorily listed

factor, or (2) a well-founded fear of future persecution based on a protected

ground. Mejia v. U.S. Att’y Gen., 498 F.3d 1253, 1256 (11th Cir. 2007).

Protected grounds are race, religion, nationality, membership in a particular social

group, or political opinion. See id. Once past persecution has been established, an

alien is presumed to have a well-founded fear of future persecution. See De

Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1007 (11th Cir. 2008).4 The

government may rebut this presumption by showing, by a preponderance of the

evidence, either (1) a change in the country’s conditions, or (2) that relocation

within the country would avoid future persecution and that it was reasonable to

expect the alien to do so. Id. To establish a well-founded fear of future


       4
          An applicant who fails to demonstrate a well-founded fear of future persecution may
still be granted asylum on the basis of past persecution alone if (1) there are compelling reasons
why the applicant cannot return to the country due to the severity of past persecution, or (2) there
is a reasonable possibility that the applicant “‘may suffer other serious harm upon removal to
that country.’” See De Santamaria, 525 F.3d at 1007 n.4 (quoting 8 C.F.R. § 208.13(b)(1)(iii)).
As Dimitrijevski does not contend that he is eligible for asylum under § 208.13(b)(1)(iii), we do
not address it.
                                                  11
persecution, an alien must show “a reasonable possibility of suffering such

persecution if he or she were to return to that country.” Mejia, 498 F.3d at 1256

(quotation marks, citation, and italics omitted). The alien’s fear must be both

subjectively genuine and objectively reasonable. See De Santamaria, 525 F.3d at

1007.

        The record supports the BIA’s finding that the government successfully

rebutted Dimitrijevski’s presumed fear of future persecution. Contrary to

Dimitrijevski’s contention, the BIA applied a presumption of a well-founded fear

of future persecution after assuming that Dimitrijevski suffered past persecution

based on a protected ground. The BIA determined that this presumption had been

rebutted, though, by evidence of the changed country conditions contained in the

2007 Country Report. That report indicates that, after Dimitrijevski fled

Macedonia, the war between ethnic Macedonians and ethnic Albanians ended, and

relations between the two populations, though strained, continued to improve.

Macedonia became a parliamentary government led by a prime minister

representing a multiethnic governing coalition. Ethnic Macedonians accounted for

approximately 64 percent of the 2.1 million population and ethnic Albanians were

25 percent of the population. With regard to individuals displaced during the 2001

internal conflict, 779 persons were not fully resettled, but the government was

encouraging the displaced individuals to return to their homes of origin in areas
                                          12
that were now safe. Disputes between parents and school authorities over ethnic

issues had also decreased. This evidence sufficiently supported the agency’s

findings of changed country conditions.

      Dimitrijevski faults the BIA for citing only one report in its decision and

asserts that the BIA improperly took administrative notice of “other documents”

without citing any specific document. The BIA’s decision reflects that it did not

take administrative notice of unspecified documents. Moreover, the BIA’s reliance

on the 2007 Country Report was proper. See Mehmeti v. U.S. Att’y Gen., 572

F.3d 1196, 1198-1200 (11th Cir. 2009) (per curiam) (rejecting the petitioner’s

argument that the IJ erred in relying solely on the country reports to find changed

country conditions); Djonda v. U.S. Att’y Gen., 514 F.3d 1168, 1175 (11th Cir.

2008) (noting that the BIA may rely heavily on country reports given that the State

Department is the most appropriate resource on foreign nations’ political

conditions). In any event, the substantial evidence test precludes us from

reweighing from scratch the importance attributed to a particular report. See

Djonda, 514 F.3d at 1175.

      Besides the changes in Macedonia’s political situation, there was also

substantial evidence to support the BIA’s finding that Dimitrijevski could relocate

to avoid future persecution. As noted, ethnic Macedonians are the majority group

and Dimitrijevski acknowledged that there were areas in Macedonia inhabited
                                          13
mainly by ethnic Macedonians. The fact that Dimitrijevski’s immediate family

continues to reside unharmed in a new village in Macedonia also undermines the

objective reasonableness of his fear of future persecution. See Ruiz v. U.S. Att’y

Gen., 440 F.3d 1247, 1259 (11th Cir. 2006) (per curiam) (rejecting claim that

relocation was not possible in light of evidence that the applicant’s son and parents

lived safely in the same area where the alleged persecution occurred). Although

Dimitrijevski believes he will be recognized and punished for being a former

member of the Macedonian military, his low-level status as a cook is unlikely to

mark him as a high-profile target by rebels. See Mazariegos v. Office of the U.S.

Att’y Gen., 241 F.3d 1320, 1327 (11th Cir. 2001) (reasoning that because alien did

not play a notorious role in the war, the guerillas were unlikely to identify or

pursue him upon his return to Guatemala).

      In sum, the record contains substantial evidence to support the BIA’s finding

that changed country conditions in Macedonia and the possibility of relocation

negated the presumption that Dimitrijevski had a well-founded fear of future

persecution in Macedonia. Accordingly, the BIA correctly denied his asylum

claim. See Mehmeti, 572 F.3d at 1200.

                                III. CONCLUSION




                                          14
         Based on the foregoing, we DISMISS the petition for lack of jurisdiction as

to Dimitrijevski’s due process claims and DENY the petition as to his asylum

claim.

         DISMISSED in part; DENIED in part.




                                           15
