                Not for Publication in West's Federal Reporter

          United States Court of Appeals
                       For the First Circuit

No. 06-2168


                              ZYBER NESIMI,

                               Petitioner,

                                     v.

               ALBERTO GONZALES, ATTORNEY GENERAL,

                               Respondent.


               ON PETITION FOR REVIEW OF AN ORDER
               OF THE BOARD OF IMMIGRATION APPEALS


                                  Before

               Torruella and Lipez, Circuit Judges,
               and Stafford,* Senior District Judge.


     Andrew P. Johnson and Law Offices of Andrew P. Johnson, P.C.,
on brief for petitioner.
     Lindsay L. Chichester, Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, Peter D.
Keisler, Assistant Attorney General, and James A. Hunolt, Senior
Litigation Counsel, on brief for respondent.



                              May 31, 2007




     *
     Of the Northern District of Florida, sitting by designation.
              Per Curiam.       Petitioner, Zyber Nesimi ("Nesimi"), seeks

review of an order of the Board of Immigration Appeals ("BIA")

affirming the decision of the Immigration Judge ("IJ") to deny

Nesimi's   application          for    asylum,    withholding    of   removal,   and

protection under the Convention Against Torture ("CAT").                   Finding

no merit to Nesimi's arguments, we affirm the BIA's order and deny

the petition for review.

                                           I.

              Nesimi is a native and citizen of Albania who entered the

United   States      on   May    20,    2003,     at   Miami,   Florida,   using   a

fraudulent Italian passport.               Approximately one year after he

entered the country, Nesimi filed an application for asylum with

the Department of Homeland Security ("DHS").                     After Nesimi was

interviewed     by   an   asylum       officer,    the   DHS    referred   Nesimi's

application to the Immigration Court, which promptly placed Nesimi

in removal proceedings by issuing him a notice to appear.                   Nesimi

was charged with being removable as an immigrant who did not

possess a valid entry document at the time of admission.

              At an initial hearing before the IJ, Nesimi conceded

removability as charged, renewed his application for asylum, and

requested withholding of removal, protection under CAT, and, in the

alternative, voluntary departure.                After a merits hearing, the IJ

denied all of Nesimi's requests for relief.                Although the IJ found

Nesimi   to    be    generally        credible,    accepting     as   truthful   his


                                          -2-
testimony about politically-motivated beatings and threats, she

nonetheless found that Nesimi failed to establish either past

persecution or a well-founded fear of future persecution sufficient

to give rise to eligibility for asylum.            In     addition, the IJ

denied Nesimi's requests for withholding of removal and protection

under CAT.    The IJ also denied Nesimi's request for voluntary

departure and ordered him removed to Albania, explaining that she

lacked confidence that Nesimi would voluntarily depart based on his

history of using elaborate and deceptive means to gain admission to

the United States.

          The BIA dismissed Nesimi's appeal.            The BIA first found

that, even if the detentions and beatings experienced by Nesimi

constituted persecution on account of his political opinion, the

presumption of a well-founded fear of persecution in the future was

satisfactorily rebutted under 8 C.F.R. § 1208.13(b)(1)(i)(A) by

documentary   evidence    demonstrating      a   fundamental    change   in

circumstances in Albania.         The BIA next found that the harm

suffered by Nesimi, even if persecutory, was not so severe as to

constitute    a      compelling     reason       under     8    C.F.R.    §

1208.13(b)(1)(iii)(A) to grant asylum in the absence of a well-

founded fear of persecution.        The BIA further found that, by

failing to satisfy the lower burden of proof required for asylum,

Nesimi necessarily failed to satisfy the similar but higher burden

of proof required for withholding of removal.             Finally, the BIA


                                   -3-
found   that   Nesimi    failed    to    establish     eligibility       for    CAT

protection because he failed to demonstrate that it was more likely

than not that he would be tortured if removed to Albania.

            In finding a change in circumstances in Albania, the BIA

relied on three documents issued by the United States Department of

State: (1) Albania: Profile of Asylum Claims and Country Conditions

(2004) ("2004 Profile"); (2) Albania: Country Reports on Human

Rights Practices—2002 (2003) ("2002 Country Report"); and (3)

Albania: Country Reports on Human Rights Practices—2003 (2004)

("2003 Country Report").           Together, these reports reveal that

politically-motivated       violence          in    Albania    has   decreased

significantly in recent years.             The 2004 Profile, for example,

states:

            [T]here have been no major outbreaks of
            political violence since 1998, and the
            available evidence suggests that neither the
            Government nor the major political parties
            engage in policies of abuse or coercion
            against their political opponents.    Though
            serious political repression existed in the
            past, there are no indications of systemic
            political persecution in Albania at the
            present time.

2004 Profile at 3.         The 2004 Profile also reveals that local

elections in 2000 were carried out in a calm and orderly manner

with very few incidents of violence, that parliamentary elections

in   2001   involved    isolated   cases      of   police   harassment    but    no

systemic or organized mistreatment, and that municipal elections in

2003 "were generally free of violence and considered the most

                                        -4-
transparent in Albania's short democratic history, with no police

interference."      Id. at 5.     The 2002 and 2003 Country Reports paint

a similar picture of widely improving conditions, with no confirmed

cases of detainees being held strictly for political reasons, no

confirmed cases of political killings by the Government or its

agents, and no reports of politically-motivated disappearances.

2002 Country Report at 2, 4; 2003 Country Report at 1, 2, 5.

                                      II.

            Our review, directed to the BIA's decision, is de novo on

questions    of     law   but   deferential   as   to    factual   findings.

Mukamusoni v. Ashcroft, 390 F.3d 110, 119 (1st Cir. 2004).              Under

the deferential standard, a reviewing court must accept the BIA's

factual findings if they are "supported by reasonable, substantial,

and probative evidence on the record considered as a whole."              INS

v. Elias-Zacarias, 502 U.S. 478, 481 (1992).            In effect, we will

not   set   aside   the   BIA's   factual   findings    unless   "the   record

evidence would compel a reasonable factfinder to make a contrary

determination."      Guzman v. INS, 327 F.3d 11, 15 (1st Cir. 2003).

This deferential standard applies not only to asylum claims but

also to withholding of removal and CAT claims.                   Settenda v.

Ashcroft, 377 F.3d 89, 93 (1st Cir. 2004).

            An asylum applicant bears the burden of proving that he

is unable or unwilling to return to his home country "because of

persecution or a well-founded fear of persecution on account of


                                      -5-
race, religion, nationality, membership in a particular social

group, or political opinion."           8 U.S.C. § 1101(a)(42)(A).        An

applicant may meet this burden either by demonstrating a well-

founded fear of future persecution based on one of the five

statutory grounds, or by establishing that he has suffered past

persecution,   in   which   case   he    is   entitled   to   a   rebuttable

presumption of a well-founded fear of future persecution.1                 8

C.F.R. § 208.13(b)(1).       If the presumption arises, the burden

shifts to the DHS to prove either 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 "the applicant could avoid future

persecution by relocating to another part of the applicant's

country of nationality." Id. at § 208.13(b)(1)(i)(A)-(B); see also

Orelien v. Gonzales, 467 F.3d 67, 71 (1st Cir. 2006).             Here, based

largely on State Department reports of country conditions, the BIA

found that the record evidence demonstrated a fundamental change in

circumstances in Albania.

          To reverse the BIA's factual finding regarding changed

circumstances, this court must find that a "reasonable adjudicator



     1
      The BIA may also, in its discretion, grant asylum to an alien
who demonstrates "compelling reasons for being unwilling or unable
to return to the country arising out of the severity of the past
persecution." 8 C.F.R. § 208.13(b)(1)(ii). The BIA in this case
denied such a discretionary grant of asylum, and that denial has
not been challenged by Nesimi.

                                   -6-
would be compelled to conclude to the contrary."                         8 U.S.C. §

1252(b)(4)(B); Tota v. Gonzales, 457 F.3d 161, 165 n.8 (1st Cir.

2006) (noting that "[f]indings as to changed circumstances are

usually factual determinations").                Unfortunately for Nesimi, the

evidence in this case falls far short of compelling a conclusion

that country conditions in Albania have not undergone a fundamental

change since Nesimi left the country.

            While not binding, State Department country reports and

profiles are "generally probative of country conditions" and may,

in themselves, be sufficient to rebut the presumption of future

persecution.    Chreng v. Gonzales, 471 F.3d 14, 22 (1st Cir. 2006).

Indeed, in the case of Albania, this court has on a number of

occasions    concluded      that     State   Department     reports    constituted

substantial evidence supporting the BIA's conclusion that country

conditions     in    Albania    had     improved     to    the   point    that    any

presumption of a well-founded fear of future prosecution based on

political opinion was successfully rebutted.                     See Alibeaj v.

Gonzales, 469 F.3d 188, 192 (1st Cir. 2006) (finding the State

Department's        2003    Country    Report      sufficient     to     show     that

circumstances       had    changed    in   Albania   "so    fundamentally        since

Alibeaj left in 2001 as to obviate her otherwise well-founded fear

of future persecution"); Tota v. Gonzales, 457 F.3d at 167 (finding

the government's submission of the 2004 State Department Profile of

Asylum Claims sufficient to rebut Albanian petitioner's presumptive


                                           -7-
well-founded fear of future persecution); Bollanos v. Gonzales, 461

F.3d 82, 86 (1st Cir. 2006) (upholding BIA's denial of asylum where

BIA submitted the State Department's 2003 Country Report and 2004

Profile to demonstrate changed circumstances in Albania).

            Nesimi contends that the BIA erred by relying on the

State   Department    reports    of    changed   country   conditions.        He

suggests that the country reports are general in nature and,

therefore, do not adequately rebut his own showing of "specific

personal danger." He maintains that the BIA wrongly overlooked the

State Department's conclusion that "Albania remains a country with

a   high    degree   of    organized    crime,    corruption,     serious—but

declining—problems        with   trafficking     in   persons,       and   often

inadequate police protection for the vulnerable."            2004 Profile at

3; see Bollanos, 461 F.3d at 86 (explaining that "a high incidence

of police misconduct, if not directed at a protected class of

people, does not prove eligibility for asylum").                 He points to

nothing, however, that would compel a finding that, with regard to

political    repression,     country    conditions    in   Albania    have   not

changed for the better.

            Although he has a wife, five sisters and three brothers

who continue to live in Albania, including a brother active in the

same political party with which Nesimi was involved, Nesimi offered

no evidence that any of these individuals has been persecuted on

protected grounds since he left Albania in 2003.               He offered no


                                       -8-
background materials to counter the information provided in the

State Department reports, and he offered nothing to suggest that,

at   the   present    time,   serious    political   repression    exists   in

Albania.

            Because     substantial       evidence   supports      the    BIA's

conclusion that, even if Nesimi suffered from past politically-

motivated persecution, any fear of future persecution is not well-

founded based on the changed conditions in Albania, we must affirm

the BIA's denial of Nesimi's asylum application.

                                    III.

            An   individual     seeking       protection   under    CAT   must

"establish that it is more likely than not that he or she would be

tortured if removed to the proposed country of removal."             8 C.F.R.

§ 1208.16(c)(2).      "For an act to constitute torture . . . it must

be: (1) an act causing severe physical or mental pain or suffering;

(2) intentionally inflicted; (3) for a proscribed purpose; (4) by

or at the instigation of or with the consent or acquiescence of a

public official who has custody or physical control of the victim;

and (5) not arising from lawful sanctions." Elien v. Ashcroft, 364

F.3d 392, 298 (1st Cir. 2004); see also 8 C.F.R. 1208.18(a)(2)

(providing that "torture is an extreme form of cruel and inhuman

treatment and does not include lesser forms of cruel, inhuman or

degrading treatment or punishment that do not amount to torture").

            Nesimi contends that the BIA erred by failing to consider


                                        -9-
his CAT claim independently from his asylum and withholding claims.

The record, however, belies Nesimi's contention. While the BIA did

not elaborate on Nesimi's CAT claim, it specifically stated that

the claim was denied because Nesimi "has not demonstrated that it

is more likely than not that he would be tortured for any reason if

removed to Albania."   BIA Decision at 2.   The BIA thus used the

correct more-likely-than-not standard for CAT claims, which is not

the same standard used for asylum or for withholding of removal

claims.   That the BIA did not elaborate about why it found that

Nesimi failed to make a more-likely-than-not showing of future

torture does not mean—as Nesimi suggests—that the BIA improperly

conflated the different standards.

                                IV.

          Because we find that the BIA's conclusions were supported

by substantial evidence, we AFFIRM the BIA's decision and DENY

Nesimi's petition for review.




                                -10-
