IMG-118                                          NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
                           ___________

                            No. 09-3055
                            ___________

                ADNAN MORINA, a/k/a ABENE MORINA,
                                        Petitioner

                                v.

             ATTORNEY GENERAL OF THE UNITED STATES


                            ___________

                            No. 09-3057
                            ___________

                          ADEM MORINA,
                                          Petitioner

                                v.

             ATTORNEY GENERAL OF THE UNITED STATES

                            ___________

                            No. 10-1854
                            ___________

          ADNAN MORINA, a/k/a ABENE MORINA; ADEM MORINA,
                                         Petitioners

                                v.

             ATTORNEY GENERAL OF THE UNITED STATES

                                 1
                        ____________________________________

                          On Petitions for Review of Orders of the
                              Board of Immigration Appeals
                       (Agency Nos. A097-391-119 & A097-457-942)
                       Immigration Judge: Honorable Annie S. Garcy
                        ____________________________________

                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 April 20, 2011
      Before: AMBRO, GREENAWAY, JR. AND GREENBERG, Circuit Judges

                                (Opinion filed: May 11, 2011)

                                        ___________

                                         OPINION
                                        ___________


PER CURIAM

       Cousins Adnan and Adem Morina petition for review of the Board of Immigration

Appeals‟ (“BIA”) decisions upholding the Immigration Judge‟s (“IJ”) denial of their

respective applications for asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). Petitioners also seek review of the BIA‟s

subsequent decision denying their joint motion to reconsider. For the reasons that follow,

we will deny the petitions.

                                              I.

       Petitioners are ethnic Albanians from Kosovo. In September 2003, Adem1 entered


       1
           We mean no disrespect when we refer to Petitioners by their first names; we do
                                              2
the United States with a fraudulent passport and sought admission under the Visa Waiver

Program (“VWP”).2 After that request was denied, he applied for asylum, withholding of

removal, and CAT relief, and was placed in asylum-only proceedings. Meanwhile, in

February 2004, Adnan entered the United States without being admitted or paroled. He

subsequently was placed in removal proceedings, where he conceded his removability

and applied for asylum, withholding of removal, and CAT relief.

       Petitioners claimed that they feared returning to Kosovo because Albanian

extremists with ties to the Alliance for the Future of Kosovo (“AAK”) had persecuted

them on account of their membership in the Democratic League of Kosovo (“LDK”), a

rival political party. Their respective cases were ultimately consolidated before the IJ,

who heard their testimony over the course of several hearings between December 2004

and August 2006.

       Petitioners testified as follows. In 1998, they and their family fled Kosovo in the

wake of mistreatment by the Serbian government and its armed forces.3 After NATO



       so solely for ease of identification.
       2
         Under the VWP, aliens from certain countries are permitted to visit the United
       States for 90 days or less without a visa. See 8 U.S.C. § 1187(a). Aliens who
       request admission under the VWP agree to waive any challenge to their removal;
       however, they may still apply for asylum, withholding of removal, and CAT relief.
       Shehu v. Att‟y Gen. of the U.S., 482 F.3d 652, 655 (3d Cir. 2007) (citing 8 U.S.C.
       § 1187(b)). VWP applicants who apply for asylum, withholding of removal,
       and/or CAT relief are placed in “asylum-only” proceedings, not removal
       proceedings. See Shehu, 482 F.3d at 655.
       3
         Petitioners testified about the alleged mistreatment they received at the hands of
       the Serbian government in the years leading up to their 1998 flight from Kosovo.
       In denying their respective applications for relief, the IJ found that the Serbian
                                             3
intervened in Kosovo in 1999, Petitioners and their family returned there. Around that

same time, Adnan joined the LDK (Adem had joined several years earlier).

       In September 2000, Petitioners attended a political rally. On their way home —

Petitioners lived together, along with many of their family members — AAK supporters

beat and threatened the two of them and burned their LDK flags. In February 2001,

Petitioners received threatening telephone calls after a leader from the LDK visited their

home. In May 2001, there was an explosion outside Petitioners‟ house. They reported

the explosion to the police, who said that it was “nothing.” A few days later, Petitioners

received an anonymous phone call. The caller stated that the explosion was a warning

and threatened that each family member would be killed if they continued to support the

LDK.

       In June 2001, five or six masked men accosted Adnan and his father on their way

home from work. The masked men beat the two of them, and threatened to kill them if

they continued to support the LDK. A few months later, a group of masked men broke

into Petitioners‟ house looking for Adem, who was not there at the time. The men beat

Adem‟s father, and stated that they would have killed Adem if he had been home. In

light of this incident, Adem went into hiding for several months.



       government was no longer in a position to carry out this mistreatment because the
       United Nations had gained control over the region. On appeal, the BIA explained
       that, “[f]or understandable reasons, [Petitioners] make[] no claim for relief related
       to actions taken by Serbian forces.” (See Admin. R. at 39, 43.) Petitioners did not
       challenge this characterization in their motion to reconsider, nor do they do so
       here.
                                             4
         In August 2002, Adnan‟s father‟s store was attacked by gunfire. Adnan and his

father, who were inside the store at the time but escaped unharmed, received a

threatening phone call the next day. A few months later, two men beat Adem on his way

to the train station, injuring his ear. In April 2003, Adem was again accosted by two

men, who beat him and threatened that, if he did not leave Kosovo, he would be buried

there.

         In July 2003, a group of masked men abducted Adem. They placed a bag over his

head and drove around for approximately thirty minutes, during which time they beat and

threatened him. They then threw Adem from the car, removed the bag, placed a gun in

his mouth, and told him that he was about to die. Adem begged for his life, and the men

proceeded to beat him until he passed out. The men were gone when he awoke, so he

went home and began making plans for his departure from Kosovo. He left shortly

thereafter.

         Around that same time, Adnan and his father were also abducted by a group of

masked men. The men forced Adnan and his father into separate cars and proceeded to

beat them. The men threatened that they would kill the two of them if they continued to

support the LDK. The men then threw Adnan and his father out of the cars, continued to

beat them, and put a gun to Adnan‟s head. The men ultimately let the two of them go,

and Adnan left Kosovo two days later.

         Petitioners testified that they and their family members in Kosovo — with the
                                              5
possible exception of one relative — are no longer members of the LDK. Petitioners did

not allege that the family had received additional threats since their departure from

Kosovo, or that the Albanian extremists were looking for the two of them.

       In December 2006, the IJ denied Petitioners‟ respective applications. The IJ found

that Petitioners each lacked credibility, and that Adnan‟s claims did not rise to the level

of past persecution. The IJ further found that the conditions in Kosovo had

fundamentally changed since Petitioners‟ departure, noting that the LDK and AAK had

entered into a ruling coalition in October 2004. The IJ also rejected Petitioners‟

argument that they would be tortured by, or with the acquiescence of, the government

upon their return to Kosovo, noting that the LDK was the most popular political party in

Kosovo. As a result, the IJ ordered Adnan‟s removal and returned Adem‟s case to the

Department of Homeland Security.

       Petitioners appealed the IJ‟s decision to the BIA, which addressed their respective

cases in separate (but similar) decisions. The BIA rejected the IJ‟s adverse credibility

determinations, concluding that they were “based on improper speculation and

inconsistencies that are either not fully supported by the record or have been reasonably

explained by [Petitioners].” (Admin. R. at 40, 44.) The BIA agreed with the IJ, however,

that Adnan‟s claims did not rise to the level of past persecution and that, even if he and

Adem had suffered past persecution, fundamental changes had occurred in Kosovo that

rebutted any presumption of a well-founded fear of future persecution. The BIA further

concluded that Petitioners had not otherwise established a well-founded fear of future
                                              6
persecution, for they were no longer members of the LDK, and there was no evidence

that Albanian extremists in Kosovo had harmed their family since their departure or were

looking for them. Finally, the BIA held that Petitioners had not established that they

would likely be tortured by, or with the acquiescence of, the government in Kosovo.

       Petitioners timely filed a joint petition for review. Because the BIA had issued

separate decisions, the Clerk docketed Adnan‟s and Adem‟s respective cases separately

(C.A. Nos. 09-3055 and 09-3057, respectively). Meanwhile, in July 2009, Petitioners

jointly moved the BIA to reconsider its June 2009 decisions. In February 2010, the BIA,

in a single decision, denied the motion on the merits, finding “no basis to reconsider our

June 17, 2009, decision[s].” (Admin. R. at 3.) Petitioners then timely filed a petition for

review of that decision, and the Clerk docketed this new petition at C.A. No. 10-1854.

The Clerk subsequently granted the Government‟s unopposed motion to consolidate the

three cases, and they are now ripe for disposition.

                                             II.

       We have jurisdiction over the instant petitions pursuant to 8 U.S.C. § 1252(a)(1).4

We review the agency‟s factual findings, including its conclusions concerning evidence

of past persecution and a well-founded fear of persecution, for substantial evidence. See


       4
         Our jurisdiction under § 1252(a)(1) is limited to the review of “final order[s] of
       removal.” Although Adem was not in removal proceedings, we nonetheless have
       jurisdiction to review his claims because, as we have previously explained, “a
       denial of a VWP applicant‟s petition for asylum, withholding of removal, and
       relief under the CAT constitutes „a final order of removal‟ within the meaning of
       [§ 1252(a)(1)].” Shehu, 482 F.3d at 656.
                                             7
Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006). Under this deferential standard

of review, we may not disturb the agency‟s findings “unless the evidence not only

supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483-

84 (3d Cir. 2001). We review the agency‟s denial of Petitioners‟ motion to reconsider for

abuse of discretion, see Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir. 2005), and must

uphold that decision unless it is “arbitrary, irrational, or contrary to law.” Id. (quotation

marks and citation omitted).

       To obtain asylum, an alien must show that he is unable or unwilling to return to

the country in question “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.” 8 U.S.C. § 1101(a)(42); see 8 U.S.C. § 1158(b). A showing of past

persecution creates a presumption of a well-founded fear of future persecution. 8 C.F.R.

§ 1208.13(b)(1). That presumption is rebutted, however, if the Government establishes,

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 [country in question].” See 8 C.F.R. § 1208.13(b)(1)(i)(A), (ii).

       In this case, even if Petitioners could establish past persecution, substantial

evidence supports the agency‟s determination that the changed circumstances in Kosovo

rebut any presumption of a well-founded fear of persecution, and that Petitioners have not

otherwise demonstrated a well-founded fear of future persecution. As the BIA

highlighted, the political landscape in Kosovo has changed since Petitioners‟ departure,
                                               8
with the AAK — whose supporters Petitioners claim to fear — forming a ruling coalition

with the LDK. Additionally, Petitioners‟ family members in Kosovo — with the possible

exception of one relative — are no longer members of the LDK, and there is no

indication that the family has continued to experience any of the earlier troubles

highlighted by Petitioners. Moreover, Petitioners themselves are no longer members of

the LDK, further lessening the possibility that they would be harmed if they returned to

Kosovo.

       Because Petitioners cannot satisfy the standard for asylum, they cannot meet the

higher standard for withholding of removal. See Lukwago v. Ashcroft, 329 F.3d 157,

182 (3d Cir. 2003). Additionally, they have not shown that the evidence compels a

finding that either one of them would likely be tortured by, or with the acquiescence of,

the government in Kosovo. Finally, Petitioners have failed to establish that the BIA

abused its discretion in denying their motion to reconsider.5

       Having reviewed the record, we are confident that, contrary to Petitioners‟

contention, the BIA properly considered all of the record evidence in reaching its

decisions. Accordingly, and in light of the above, we will deny the petitions for review.


       5
        Petitioners argue that “the BIA inexplicably departed from established standards
       for [reviewing a] motion to reconsider in denying Petitioners‟ motion on the
       ground that Petitioners did not submit[] new evidence in support of the motion.”
       (Pet‟rs‟ Supplemental Br. 20.) This argument lacks merit, for the BIA denied the
       motion not because Petitioners failed to provide new evidence, but because they
       did not establish a basis for disturbing the BIA‟s earlier decisions. Nor do we
       agree with the Petitioners‟ contention that the BIA simply “disregarded” their
       motion.
                                             9
