                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 11a0057n.06

                                          No. 09-3407
                                                                                        FILED
                          UNITED STATES COURT OF APPEALS                             Jan 27, 2011
                               FOR THE SIXTH CIRCUIT                           LEONARD GREEN, Clerk


LUKE NUE,

          Petitioner,
                                                          ON PETITION FOR REVIEW
v.                                                        FROM AN ORDER OF THE
                                                          BOARD OF IMMIGRATION
ERIC H. HOLDER, JR., Attorney General                     APPEALS

          Respondent.




                                                     /

Before:          MARTIN and McKEAGUE, Circuit Judges; LUDINGTON, District Judge.*

          THOMAS L. LUDINGTON, District Judge. Petitioner, Luke Nue (“Nue”) contends that the

Board of Immigration Appeals (“BIA”) erred in affirming the immigration judge’s decision denying

Nue’s application for asylum under 8 U.S.C. § 1158 (2006) and rejecting her separate claim that she

qualifies for withholding of removal under 8 U.S.C. § 1231(b)(3)(A) (2006). The BIA found that

Nue’s circumstances did not warrant a rebuttable presumption of future persecution based on past

persecution and that Nue’s fear of future persecution was not well-founded because a fundamental

change in circumstances had occurred in Serbia. We AFFIRM.




          *
       The Honorable Thomas L. Ludington, United States District Judge for the Eastern District
of Michigan, sitting by designation.
                                                 I.

       Nue originally left Kosovo in 1998 because of the war between Kosovo and the former

Yugoslavia, during which Serbians sought to cleanse Kosovo of ethnic Kosovar-Albanians. A native

and citizen of the former Yugoslavia, Nue considers herself a Kosovar-Albanian. Nue’s second

husband, Pjeter Preqaj, an ethnic Albanian, disappeared during the crisis in Kosovo while traveling

between Nue’s village and the neighboring town of Gramaqel in May 1998. Following her

husband’s disappearance, Nue searched the road to Gramaqel but found no trace of him or his

traveling companion. Nue inquired into the whereabouts of her husband for approximately two

months, but was unable to locate him. Nue believes that the Serbian army abducted and killed her

husband despite a lack of witnesses to Pjeter’s disappearance.

       When the main Serbian offensive began in June 1998, Nue and her family were forced to

hide from the Serbian forces in a garage. After many days, Serbian forces attacked and set fire to

the garage. This forced Nue to flee first to her house and then to her mother’s house in Gjakova.

The Serbian troops soon attacked that city as well. Nue alleges she was constantly harassed and

threatened by Serbian troops while they occupied Gjakova. It was during this time that Nue also

alleges that Serbian troops entered her mother’s home, threatened them at gunpoint to leave the area,

and then raped Nue in front of her mother.

       After the North Atlantic Treaty Organization (“NATO”) bombings of Serbian positions, the

violence between the Serbian troops and the Kosovar-Albanians, who the Serbian troops blamed for

the bombings, escalated. Nue alleges that after the NATO bombings, Serbian troops threw knives

at her and her mother without cause. Despite the threat of violence, Nue was secretly supporting the


                                                -2-
Kosovo Liberation Army (“KLA”) forces around Gjakova, and at one point was confronted by

Serbian forces on her return from a KLA base. Nue was held at gunpoint while her mother, an ethnic

Serbian, pled with the troops to spare Nue’s life.

       When the war ended, Nue returned to her home only to find it destroyed. At this time, Nue

also alleges she faced persecution by the KLA who accused her of being a Serbian sympathizer based

on her partial Serbian ethnicity. On one occasion, KLA soldiers came heavily armed to her mother’s

home, where Nue was residing, and lined up her family, holding them at gunpoint and accusing them

of hiding Serbians. This detention lasted approximately fifteen minutes while the KLA troops

searched Nue’s mother’s home.

       Nue subsequently obtained a tourist visa, entered the United States in March 2002, and

sought asylum in September of the same year. In her asylum application, Nue alleged that she feared

persecution in Kosovo and Serbia by Albanian zealots on account of her mixed Serbian-Albanian

ethnicity and Catholic religion. Nue alleged that members of the KLA repeatedly accused her and

her family of being terrorists, confronted her at her home regarding the accusations, and that her

brother had been detained and interrogated by KLA members in August 2002. Her brother, who

remained in Kosovo, informed her that he had been harassed and verbally threatened by KLA

members and Albanian extremists who were allegedly aware of their family’s mixed ethnicity. Nue

stated her fear of persecution as a non-Muslim was justified because Catholic churches had been

damaged in the war and discrimination against non-Muslims persisted.

       The Department of Homeland Security reviewed Nue’s asylum claim and issued a letter on

October 4, 2004, informing her that her asylum application would be referred to an immigration

judge because she did not demonstrate that any harm she had suffered rose to the level of persecution


                                                 -3-
or that her fear of future persecution was well-founded. Nue advanced two grounds for her request

for relief and protection in her subsequent affidavits, testimony, and other evidence in support of her

application. First, Nue alleged a fear of harm by the Serbian military on account of her Albanian

ethnicity, and second, she claimed a fear of harm by Albanian extremists on account of her Serbian

ethnicity.

        In 2006, the United States Department of State Country Reports on Human Rights Practices

(hereinafter “State Department Country Reports”) noted that there were no reports that “the

government or its agents committed arbitrary or unlawful killings” and that many displaced Serbians

and Albanians had begun returning to Kosovo and Serbia. Reports of discrimination, violence, and

crimes directed at minorities and their properties have decreased since 2005, but official and societal

discrimination still persist. The international police unit1 has also made efforts to investigate reports

of violence against Kosovo-Serbians. Additionally, Nue’s mother and two brothers returned to

Kosovo after the war and have resided there for years unharmed.

        An immigration judge denied Nue’s application for relief and protection on April 19, 2007,

concluding that Nue did not testify credibly in support of her claims and did not demonstrate that she

had been persecuted in the past. The immigration judge held alternatively that, even if Nue had

credibly established past persecution, she was ineligible for asylum because the circumstances in

Kosovo had changed, reducing the basis for Nue’s fear of persecution on account of her ethnicity or

any other protected ground. The immigration judge noted that, according to the State Department

Country Reports’ profile and other record evidence, the war ended after NATO’s intervention and


        1
         According to the 2006 State Department Country Reports, the international police unit is
a unit composed of United Nations international police officers within the Kosovo Protection Service
that reports directly to the police commissioner who is also an international staff member.

                                                  -4-
the country’s administration was placed under NATO’s control. Furthermore, many displaced

persons had returned to Kosovo, indicating that internal relocation was feasible and that, despite

continuing ethnic problems and discrimination in Kosovo, there was no longer persecution of ethnic

Albanians, Serbians, or Catholics. The immigration judge also took into account Nue’s mother and

two brothers’ return to Kosovo without harm and found that, as a former KLA supporter,

Kosovar-Albanians would likely welcome Nue’s return. Nue was also ineligible for CAT protection

because, even though rape could be viewed as torture, the immigration judge found that Nue had not

credibly shown that she was the victim of rape or that there was a clear probability that she would

be tortured by, or with the acquiescence of, the Serbian government upon returning to Kosovo or

Serbia.

          On May 16, 2007, Nue appealed the immigration judge’s decision alleging that he erred in

finding that Nue did not demonstrate past persecution on account of her Albanian ethnicity and that

she did not testify credibly in support of her claims. Nue contended that the immigration judge erred

in finding that her past harm was not on account of a protected ground. She also contended that the

immigration judge erred in finding that the State Department Country Reports rebutted her

presumption of a well-founded fear of future persecution based on her Serbian ethnicity because

there was a pattern and practice of persecution by Kosovar-Albanians against Serbians. Additionally,

Nue alleged that she qualified for withholding of removal because there was a clear probability that

she would be persecuted upon returning to Serbia. Nue did not appeal the immigration judge’s

denial of her CAT claim, or his finding that she did not have a well-founded fear of persecution on

account of her Albanian ethnicity.




                                                -5-
       The BIA denied Nue’s appeal on March 12, 2009. The BIA denied Nue’s claim that she had

a well-founded fear of future persecution by Albanian forces because of her Serbian ethnicity. The

BIA found that Nue had not established that the search by and threats received from KLA members

rose to the level of persecution, that she was persecuted on account of her Serbian ethnicity, or that

her circumstances warranted a rebuttable presumption of future persecution. The BIA also adopted

and affirmed the immigration judge’s alternative finding that any presumption of a well-founded fear

of persecution by the Serbian forces was rebutted by a “fundamental change in circumstances” which

had occurred in Serbia. It noted that the war had ended and Nue’s Serbian mother and brothers

returned to Kosovo and remained there unharmed. The BIA did not reach the issue of Nue’s

credibility. Nue then sought timely review.

                                                 II.

       In the instant case, the BIA reviewed the immigration judge’s decision and issued an opinion

by a single-member panel pursuant to 8 C.F.R. § 1003.1(e) (2010). “Where the BIA reviews the

immigration judge’s decision and issues a separate opinion, rather than summarily affirming the

immigration judge’s decision, [the Court] review[s] the BIA’s decision as the final agency

determination.” Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009) (citing Morgan v. Keisler, 507

F.3d 1053, 1057 (6th Cir. 2007)). This Court also reviews immigration judges’ decisions to the

extent their reasoning is adopted by the BIA. Id.; see Patel v. Gonzales, 470 F.3d 216, 218 (6th Cir.

2006). Questions of law are reviewed de novo, but substantial deference is given to the BIA’s

interpretation of the INA and accompanying regulations. Morgan, 507 F.3d at 1057 (citing Sad v.

I.N.S., 246 F.3d 811, 814 (6th Cir. 2001)).




                                                 -6-
        The BIA and immigration judge’s findings are reviewed under the substantial evidence

standard. Urbina-Mejia v. Holder, 597 F.3d 360, 364 (6th Cir. 2010). The Court’s scope of review

of factual findings under the substantial evidence standard is narrow. See Hamida v. Gonzales, 478

F.3d 734, 736 (6th Cir. 2007). “The BIA’s interpretation of the statute and regulations will be

upheld unless the interpretation is ‘arbitrary, capricious, or manifestly contrary to the statute.’ ” Id.

(quoting Sad, 246 F.3d at 815). The Court may not reverse such findings simply because it would

have decided the case differently. Gishta v. Gonzales, 404 F.3d 972, 978 (6th Cir. 2005). Stated

otherwise, the BIA’s findings “are conclusive unless any reasonable adjudicator would be compelled

to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).

                                                  III.

        Nue raises three arguments regarding the BIA’s error in affirming the immigration judge.2

First, that the BIA erred in determining that Nue does not have a credible and well-founded fear of

persecution or faced past persecution based on her status as a non-pure Kosovar-Albanian in order

to be eligible for asylum. Second, and within the context of the asylum request, that the BIA erred

in determining that country conditions within Kosovo had changed to the point that Nue could not

have a credible fear of return, rebutting any presumption of future persecution. Third, that the

immigration judge erred in determining that she did not qualify for withholding of removal.

                                                   A.



        2
          Nue raises an additional argument in her brief that the BIA did not apply the correct legal
standard in finding Nue’s testimony incredible. The BIA expressly did not reach the issue of Nue’s
credibility, but instead adopted the immigration judge’s alternate finding that even if Nue had
established that she was persecuted by Serbian forces in the past, the presumption of a well-founded
fear of persecution has been rebutted by showing that there has been a “fundamental change in
circumstances” since Nue left her country in 2002. (App’x at 1.)

                                                  -7-
       The Attorney General has discretion to grant an alien asylum if the alien is a refugee. Id. §

1158(b)(1); see I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 428 & n.5 (1987). A “refugee” is defined

as an alien who is unable or unwilling to return to her country of origin “because of [past]

persecution or a well-founded fear of [future] persecution on account of race, religion, nationality,

membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A); Pascual

v. Mukasey, 514 F.3d 483, 485 (6th Cir. 2007). An applicant can be found eligible for asylum based

solely on past persecution; however, the Attorney General will generally not grant asylum as a matter

of discretion unless the applicant also demonstrates that her fear of future persecution is

well-founded. Matter of N-M-A-, 22 I. & N. Dec. 312, 318 (BIA 1998) (noting that “the

determination that an applicant may not be subjected to future persecution may well result in the

denial of relief”); see also Cardoza-Fonseca, 480 U.S. at 428 n.5. This is because “[a]sylum is a

prophylactic protection for those who might face future persecution . . . [and] is designed not to

remedy the past, but to protect those who might suffer future persecution.” Matter of N-M-A-, 22

I. & N. Dec. at 318.

       To establish past persecution, an applicant must show that she has been subjected to “more

than a few isolated incidents of verbal harassment or intimidation, unaccompanied by any physical

punishment, infliction of harm, or significant deprivation of liberty.” Mikhailevitch v. I.N.S., 146

F.3d 384, 390 (6th Cir. 1998) (citation and quotation omitted); see 8 C.F.R. § 1208.13(a) (2010).

An applicant who establishes past persecution on account of a protected ground is entitled to a

presumption of a well-founded fear of future persecution. See 8 C.F.R. § 1208.13(b)(1). The

past-persecution presumption regulation has been found to apply only where the applicant is

claiming past and future persecution from the same source for the same motive. Matter of N-M-A-,


                                                 -8-
22 I. & N. Dec. at 318. “The rationale for looking at past persecution is that the ‘past serves as an

evidentiary proxy for the future.’ ” Id. (quoting Marquez v. I.N.S., 105 F.3d 374, 379 (7th Cir.

1997)). “The presumption is based on the possibility that a persecutor, once having shown an

interest in harming the applicant, might seek to harm the applicant again should the applicant be

forced to return within the persecutor’s reach.” Id. at 317-18.

       The government can rebut this presumption if it establishes by a preponderance of the

evidence that a “fundamental change in circumstances” has undermined any such “well-founded

fear.” 8 C.F.R. § 1208.13(b)(1)(i)(A); see Pascual, 514 F.3d at 485-86. In other words,

       if the record reflects that country conditions relating to the past persecution have
       changed to such an extent that the applicant no longer has a well-founded fear of
       harm from [her] original source of persecution, the evidentiary presumption is
       extinguished, and the burden returns to the applicant to establish [her] well-founded
       fear of persecution from any new source.

Matter of N-M-A-, 22 I. & N. Dec. at 317-318. Therefore, an alien may alternatively establish that

her fear of future persecution is well-founded, independent of the presumption, by showing: (1) a

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

social group, or political opinion; (2) a reasonable possibility of suffering such persecution if she

were to return to that country; and (3) an inability or unwillingness to return to that country because

of such fear. Mikhailevitch, 146 F.3d at 389; 8 C.F.R. § 1208.13(b)(2); see also Perkovic v. I.N.S.,

33 F.3d 615, 620-21 (6th Cir. 1994) (requiring a well-founded fear of persecution to be subjectively

genuine and objectively reasonable).

       Nue contends that she has a credible, well-founded fear of persecution because she is

considered a non-pure Kosovar-Albanian and offers her family’s experiences as corroborative of her

own fear of persecution. Cf. Matter of Villalta, 10 I. & N. Dec. 142 (BIA 1990); cf. also Cerda-


                                                  -9-
Obando v. I.N.S., No. 94-70589, 1996 WL 119480, at *1 (9th Cir. Mar. 12, 1996) (“Threats and acts

of violence against an applicant’s family members sufficiently demonstrate that the applicant has a

well-founded fear of persecution.”); Arriaga-Barrientos v. I.N.S., 938 F.2d 411, 414 (9th Cir. 1991)

(“We have held that acts of violence against a petitioner’s friends or family members may establish

a well-founded fear, notwithstanding an utter lack of persecution against the petitioner herself.”). In

order to establish a well-founded fear of persecution, an applicant need only demonstrate that future

persecution is “a reasonable possibility.” Cardoza-Fonseca, 480 U.S. at 440 (quoting I.N.S. v.

Stevic, 467 U.S. 407, 424-25 (1984)). This standard is lower than the preponderance of the evidence

test because the applicant “need not prove that it is more likely than not that . . . she will be

persecuted in . . . her home country.” Id. at 449. Instead, by pointing to specific, objective facts that

give rise to the inference that she has been–or facts that demonstrate good reason to believe she will

be–singled out for persecution, the applicant qualifies for asylum. Carvajal-Munoz v. I.N.S., 734

F.2d 562, 574 (7th Cir. 1984); see also Cardoza-Fonseca, 480 U.S. at 425.

                                                   1.

        Nue asserts that she meets this test. Nue claims that because she and her family endured past

persecution by the Albanian majority after the war, there is no reason to believe she will not be

persecuted on account of being perceived as a Serbian by the Kosovar population in the future now

that the Serbians are no longer in control. When violence rises to the level of past persecution, as

Nue asserts is the case here, there is a presumption of future persecution. 8 C.F.R. § 208.13(b)(1)(I);

Angoucheva v. I.N.S., 106 F.3d 781, 788 (7th Cir. 1997). To overcome this presumption, it must be

established by a preponderance of the evidence that, since the time of persecution occurred,

conditions in Kosovo “have changed to such an extent that the applicant no longer has a well-


                                                  -10-
founded fear of being persecuted if he or she were to return.” 8 C.F.R. § 208.13(b)(1)(i)(A); see also

Angoucheva, 106 F.3d at 788. Nue contends that the government cannot meet this burden.

According to Nue, there is no compelling evidence that conditions in Kosovo have improved,

particularly with regard to relations between Serbians and Albanians, and concerning the United

Nation’s ability to successfully control and monitor the situation there.

       Nue further contends that even if she had not been singled out for persecution in the past, she

still satisfies the test for a well-founded fear of future persecution in Kosovo based on her Serbian

ethnicity. An applicant establishes refugee status if she shows that a reasonable person in her

position would fear persecution upon return to her country. Matter of Mogharrabi, 19 I. & N. Dec.

439, 445 (BIA 1987). Nue asserts that animosity still exists between the Serbians and Kosovar-

Albanians within Kosovo, making it reasonable for a person in her circumstances to fear returning

to Kosovo. However, to demonstrate more than animosity between the Serbians and ethnic

Albanians, Nue must demonstrate that (1) she possesses a belief or characteristic a persecutor seeks

to overcome by punishment; (2) the persecutor is or could become aware that she possess the belief

or characteristic; (3) the persecutor has the capability to punish her; and (4) the persecutor has the

inclination to punish her. Id. at 446.

       In asylum cases, the burden of proof does not require that the applicant demonstrate that she

was singled out individually for persecution if there is a “pattern and practice” of persecution of

people “similarly situated to the applicant.” 8 C.F.R. § 208.13(b)(1)(I); see also Avetova-Elisseva

v. I.N.S., 213 F.3d 1192 (9th Cir. 2000). Nue contends that such a “pattern and practice” clearly

exists against the Serbian minority in Kosovo, and that her Serbian ethnicity is readily ascertainable

through questioning about her lineage. Cf. In re H--, 21 I. & N. Dec. 337, 343 (BIA 1996) (noting


                                                -11-
that family lineage and membership may be readily discernible by others because of particular

characteristics, such as language). Nue stated in her August 2006 affidavit that her aunt had been

murdered by unknown parties in Kosovo, allegedly because of the aunt’s Serbian ethnicity, and that

her mother had been threatened at gunpoint by KLA forces after NATO’s intervention. In cases

where family members share the characteristics that lead to the persecution, violence against

relatives may constitute the most probative evidence that a fear of persecution is well-founded. See

Handbook on Procedures and Criteria for Determining Refugee Status Under the 1951 Convention

and the 1967 Protocol Relating to the Status of Refugees (Geneva 1992) ¶ 43 (stating that

considerations of well-founded fear “need not necessarily be based on the applicant’s own personal

experience”). Given that her family has faced persecution because of their Serbian ethnicity, Nue

contends that the immigration judge erred in determining that Nue does not have a credible and well-

founded fear of future persecution based on her status as a non-pure Kosovar Albanian.

       The government contends that Nue’s experience with the KLA or Albanian extremists did

not rise to the level of persecution. Persecution entails harm that is more severe than “harassment

or discrimination without physical punishment, infliction of harm, or significant deprivation of

liberty.” Mohammed v. Keisler, 507 F.3d 369, 371 (6th Cir. 2007). Although Nue indicated that the

KLA searched her mother’s home for harbored Serbians for approximately fifteen minutes while

holding her family at gunpoint, Nue also testified that she had encountered no problems with the

KLA on account of her Serbian ethnicity. Likewise, Nue contends that her Serbian aunt was killed

by Albanian extremists or the KLA, but she has offered no evidence to prove that the aunt was

actually her relative or how the aunt was killed. Compare A.R. 748, 772 (affidavits suggesting that




                                               -12-
the “aunt” is not Nue’s relative), with A.R. 593 (testimony that Nue did not see the shooting but had

heard that her brother’s mother-in-law had been killed).

       Based on her own testimony and the past occurrences with the KLA, Nue has not

demonstrated past persecution with regard to the KLA or Albanian extremists. Accordingly, she is

not entitled to a presumption that there is a reasonable possibility of future persecution upon her

return to Kosovo. This requires Nue to show that her fear of persecution because of her non-pure

Kosovar Albanian ethnicity is subjectively genuine and objectively reasonable. Perkovic, 33 F.3d

at 620-21; see Mikhailevitch, 146 F.3d at 389 (requiring an applicant who has not shown past

persecution to independently show that their fear of future persecution is well founded). Nue did not

meet this burden for two reasons. First, Nue’s mother and brothers have safely returned to Kosovo

and lived there unharmed for years, which directly rebuts her fear of persecution. See Gumbol v.

I.N.S., 815 F.2d 406, 413 (6th Cir. 1987) (finding the continued and unharmed residence of similarly-

situated family members in the country of removal a factor weighing against a finding of a well-

founded fear of future persecution); A.R. 433, 537-38. Second, the 2006 State Department Country

Reports indicate that there have been no reports of arbitrary or unlawful killings by the government

or its agents, and that many displaced Serbians and Albanians have returned to Kosovo. A.R. 705,

712, 729-30, 736. The international police have also made efforts to curb and investigate violence

against ethnic Serbians. Id. The discrimination and harassment that Nue experienced does not

demonstrate that she has a well-founded fear of persecution by rogue Albanian extremists or persons

who the government is unable or unwilling to control. See Mohammed, 507 F.3d at 371. As a result,

the evidence presented by Nue does not compel the Court to reach a conclusion contrary the BIA’s




                                                -13-
decision to deny asylum or withholding of removal. See Hamida, 478 F.3d at 741 (requiring a more

strict standard for withholding of removal than that needed for asylum); Gishta, 404 F.3d at 978.

       Furthermore, in seeking relief and protection Nue intertwines two different claims of fear of

persecution by two different persecutors with two separate motives. A.R. 744-49, 768-72. However,

past persecution by the Serbian military on account of her Kosovar-Albanian ethnicity does not lend

a presumption that her fear of harm by Albanian extremists on account of her Serbian ethnicity is

well-founded, and the two dissociated claims cannot be combined to create a claim of past

persecution. See 8 C.F.R. § 1208.13(b)(1) (providing that where a fear of future persecution is

dissociated to the past persecution, the applicant bears the burden to prove that the fear of future

persecution is well-founded).

       Although record evidence demonstrates that there are ongoing incidents of harassment and

discrimination of Serbians in Kosovo, this does not compel a finding of a well-founded fear of

persecution in Kosovo because of Nue’s Serbian ethnicity. Cf. Mohammed, 507 F.3d at 371 (finding

that persecution encompasses more than harassment or discrimination). Because Nue has not

demonstrated past persecution or a well-founded fear of future persecution, she has not shown that

the BIA’s denial of her asylum application and withholding of removal was arbitrary, capricious, or

manifestly contrary to the statute.

                                                 2.

       Even if Nue were able to establish past persecution, she remains ineligible for asylum based

on the BIA’s finding that the government rebutted any presumption of a well-founded fear of future

persecution because there has been a fundamental change in circumstances. Nue, however, contends

that the BIA erred in agreeing with the immigration judge on this issue. Nue alleges that there has


                                               -14-
been a recent deterioration of the situation in Kosovo between the majority Albanians and the

minority Serbian populations with which Nue claims she identifies,3 but provides no evidentiary

support for this contention.

        Nue also argues that the State Department Country Reports are not precedential in their

pronouncements and the BIA erred in its reliance on the 2006 State Department Country Reports in

coming to the conclusion that conditions in Kosovo had improved to the point where Nue has no

credible fear of persecution. Additionally, “[i]t stands to reason that a report produced by one

executive department to aid the litigation of another executive department would often support the

second department’s point of view.” Koliada v. I.N.S., 259 F.3d 482, 487 (6th Cir. 2001) (discussing

a profile produced by the State Department specifically for the Immigration and Naturalization

Service for trial). “[T]he [State Department] reports are brief and general, and may fail to identify

specific, perhaps local, dangers to particular, perhaps obscure, individuals.” Galina v. I.N.S., 213

F.3d 955, 959 (7th Cir. 2000). Nue alleges that the State Department Country Reports offer the

Court a point of reference in determining reasonableness of fear of future persecution–nothing

more–and the conclusions should not be deemed unassailable. Nue offers the conclusion that

substantial evidence exists to support the proposition that Nue, as a recognizable Serbian, would face

continued persecution if returned to Kosovo. However, Nue has not provided such substantial

evidence.

        Despite this, Nue contends that a “[m]ere reliance” on a few passages in the State Department

Country Reports identifying “modest improvements in the still unsettled territory cannot be assumed



        3
         Nue directly contradicts herself, however, as she stated earlier in her brief that she identifies
herself as a Kosovar-Albanian, and not as a minority Serbian.

                                                  -15-
to trump the body of evidence presented to the contrary.” (Pet’r’s Br. at 33.) However, the BIA also

relied on Nue’s similarly situated mother and two brothers who have returned to Kosovo and resided

there over the past three years without harm. A.R. 618-2, 623-24; cf. Gumbol, 815 F.2d at 413

(finding that the continued and unharmed residence of similarly-situated family members in the

country of removal a factor weighing against a finding of a well-founded fear of future persecution).

          This Court has found that State Department Country Reports can be used to overcome a

presumption of future persecution by showing a fundamental change in country conditions, which

forecloses Nue’s claim that the BIA and the immigration judge erred by relying on the 2006 State

Department Country Reports. See Mullai v. Ashcroft, 385 F.3d 634, 639 (6th Cir. 2004). The BIA

also did not rely solely upon the 2006 State Department Country Reports to refute Nue’s claim.

Consequently, Nue has not demonstrated that the BIA erred in finding that country conditions in

Kosovo have changed to the point that Nue would not have a credible fear of persecution upon her

return.

                                                    B.

          The standard for establishing eligibility for withholding of removal is more stringent than that

needed for asylum. 8 U.S.C. §§ 1231(b)(3)(A), 1253(h); Liti v. Gonzales, 411 F.3d 631, 640 (6th

Cir. 2005). The alien must demonstrate “that there is a clear probability that [she] will be subject

to persecution if forced to return to the country of removal.” Singh v. Ashcroft, 398 F.3d 396, 401

(6th Cir. 2005) (citation and quotation omitted). Because Nue has not met the requirements for the

more lenient standard of asylum eligibility, she cannot meet the more stringent standard required for

withholding of removal eligibility .

                                                    IV.


                                                   -16-
       The record in the instant case does not compel a contrary conclusion, and we find that the

immigration judge’s decision was supported by substantial evidence. Accordingly, the Board of

Immigration Appeal’s decision is AFFIRMED.




                                              -17-
