                                                                      [DO NOT PUBLISH]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.”).

                                                2
§ 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

                                           3
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

                                          4
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.

                                                 5
       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

                                                  6
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).

                                                7
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.

                                          8
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

                                           9
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

                                           10
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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