                                                            [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________                    FILED
                                                       U.S. COURT OF APPEALS
                           No. 08-15435                  ELEVENTH CIRCUIT
                                                             APRIL 14, 2009
                       Non-Argument Calendar
                                                          THOMAS K. KAHN
                     ________________________
                                                                CLERK

                       Agency No. A094-889-002

MELISSA LOUIS,


                                                                    Petitioner,

                                 versus

U.S. ATTORNEY GENERAL,

                                                                  Respondent.


                     ________________________

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

                            (April 14, 2009)



Before BLACK, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:
       Melissa Louis, a citizen of Haiti, petitions for review of the Board of

Immigration Appeals’ (BIA’s) decision affirming the Immigration Judge’s (IJ’s)

order of removal and denial of asylum and withholding of removal under the

Immigration and Nationality Act (INA).1 Louis asserts the IJ erred in denying her

request for asylum because she established several instances of past persecution.

As for a well-founded fear of persecution, she notes the BIA’s finding that

conditions in Haiti have changed, but argues the past persecution shows “that

eventually it would be her turn.” We deny Louis’s petition.

           “This court reviews administrative fact findings under the highly deferential

substantial evidence test. Under the substantial evidence test, we view the record

evidence in the light most favorable to the agency’s decision and draw all

reasonable inferences in favor of that decision.” Djonda v. U.S. Atty. Gen., 514

F.3d 1168, 1173 (11th Cir. 2008) (quotations omitted). “When reviewing for

substantial evidence, we do not ask whether the evidence presented by an applicant

might support a claim for relief; instead, we ask whether the record compels us to

reverse the finding to the contrary.” Id. at 1175.




       1
         The BIA also denied Louis’s application for relief under the United Nations
Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
(CAT). Louis does not challenge the BIA’s findings with regard to the CAT on appeal. Thus,
any argument with regard to that finding is abandoned. Djonda v. U.S. Att’y Gen., 514 F.3d
1168, 1173-74 (11th Cir. 2008).
                                                2
      When, as here, the BIA issues its own opinion without expressly adopting

the IJ’s decision, this Court reviews only the BIA’s decision. See Rodriguez

Morales v. U.S. Att’y Gen., 488 F.3d 884, 890 (11th Cir. 2007). Because the BIA

treated Louis’s testimony as credible, her testimony must be accepted by this

Court. Niftaliev v. U.S. Att’y Gen., 504 F.3d 1211, 1216 (11th Cir. 2007).

      An alien may receive asylum, at the discretion of the Attorney General, if

she can carry the burden of proving that she is a “refugee,” which is defined as

“any person who is outside any country of such person’s nationality . . . and who is

unable or unwilling to return to, and is unable or unwilling to avail . . . herself of

the protection of, that country because of persecution or a well-founded fear of

persecution on account of race, religion, nationality, membership in a particular

social group, or political opinion.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226,

1230 (11th Cir. 2005) (quoting 8 U.S.C. § 1101(a)(42)(A)). Accordingly, “the

alien must, with credible evidence, establish (1) past persecution on account of her

political opinion or any other protected ground, or (2) a ‘well-founded fear’ that

her political opinion or any other protected ground will cause future persecution.”

Id. at 1230-31 (citing 8 C.F.R. § 208.13(a) and (b)).

      “A showing of past persecution creates a presumption of a ‘well-founded

fear,’ subject to rebuttal by the [government].” Id. at 1231 (citing 8 C.F.R.

§ 208.16(b)(1)(i)). This presumption may be rebutted if:
                                            3
      an asylum officer or immigration judge finds by a preponderance of
      the evidence:

             (A) There has been a fundamental change in circumstances such
             that the applicant’s life or freedom would not be threatened on
             account of any of the five grounds mentioned in this paragraph
             upon the applicant’s removal to that country; or

             (B) The applicant could avoid a future threat to his or her life or
             freedom by relocating to another part of the proposed country
             of removal and, under all the circumstances, it would be
             reasonable to expect the applicant to do so.

8 C.F.R. § 208.16(b)(1)(i); see also Sepulveda, 401 F.3d at 1231 (holding an alien

that has shown a “well-founded fear” of future persecution must establish that the

persecution cannot be avoided by relocating within the country designated for

removal).

      Even assuming Louis’s testimony was enough to establish past persecution

based on her political opinion and created a rebuttable presumption of a well-

founded fear of future persecution, that presumption was rebutted because

substantial evidence supported the BIA’s conclusion there were fundamental

changes in Haiti’s political situation so that Louis’s life or freedom would not be

threatened. The BIA noted that President Aristide left Haiti in February 2004, and

the Lavalas partisans implicated in abuses were behind bars. The 2006 Country

Report and the articles attached to Louis’s application supplement support these

conclusions. Although the Lavalas candidate, Rene Preval, was elected president

                                           4
in 2006, the 2006 Country Report does not indicate a resurgence in politically

motivated violence or disappearances. The 2006 Country Report did note the

widespread kidnapping of citizens and the failure of the Haitian National Police

(HNP) to prevent or respond to gang-related societal violence, but there was little

indication that crime victims were targeted based on their political beliefs or that

the HNP failed to enforce the law for political reasons. The 2006 Country Report

mentions the provisional release, pending trial, of 28 Aristide officials and the

continued detention of 4 others charged in the 2004 massacre of Aristide

opponents. This indicates the Haitian government has taken steps to bring to

justice Aristide supporters implicated in human rights abuses. The 2007 articles

attached to Louis’s brief before the BIA describe large demonstrations by Lavalas

and the continued popularity of the party, but they do not mention any violence

against Lavalas opponents. Additionally, two media reports attached to Louis’s

application supplement indicate that street gang violence is concentrated in the

poorest urban areas, supporting the conclusion that Louis could avoid future threats

by locating to a different part of the country. See 8 C.F.R. § 208.16(b)(1)(i)(B).

This conclusion is also supported by Louis’s testimony that Lavalas members were

less active where her friend Tamara lived and that she was not bothered by Lavalas

while she was there.



                                           5
       Based on the foregoing, substantial evidence supports the BIA’s conclusion

there were fundamental changes in Haiti’s political situation so that Louis’s life or

freedom would not be threatened. Consequently, substantial evidence supported

the BIA’s finding that Louis is not eligible for asylum. See Sepulveda, 401 F.3d at

1230-31. Because Louis is not eligible for asylum, she is necessarily ineligible for

withholding of removal. See Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1288 n.4

(11th Cir. 2005) (stating an applicant who fails qualify for asylum on the merits

necessarily fails to qualify for withholding of removal). Accordingly, we deny

Louis’s petition for review.2

       PETITION DENIED.




       2
          Louis argues for the first time on appeal that because she suffered severe past
persecution, she should be granted asylum, implicitly arguing that asylum should be granted,
despite improved country conditions, as permitted under 8 C.F.R. § 208.13(b)(1)(iii). Because
Louis has failed to exhaust her administrative remedies with respect to this claim, however, this
Court lacks jurisdiction to review it. See 8 U.S.C. § 1252(d)(1).
                                                 6
