          United States Court of Appeals
                      For the First Circuit


No. 05-2391

                            GEN TOTA,

                           Petitioner,

                                v.

                       ALBERTO R. GONZÁLES,
              ATTORNEY GENERAL OF THE UNITED STATES,

                           Respondent.



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


                              Before

                       Boudin, Chief Judge,
              Torruella and Howard, Circuit Judges.



     Daniel F. Cashman, with whom Cashman & Lovely, P.C. and
Susanna L. Shafer, on brief for petitioner.
     Michael P. Sady, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, on brief for
respondent.



                         August 14, 2006
          TORRUELLA, Circuit Judge. Petitioner Gen Tota ("Tota")

petitions for review of the Board of Immigration Appeals' ("BIA")

summary affirmance of an Immigration Judge's ("IJ") denial of his

applications for asylum and withholding of removal.1   We affirm.

                          I.   Background

          Tota is a native and citizen of Albania who entered the

United States on April 6, 2000 without a valid entry document.   On

December 13, 2000, Tota filed an I-589 Application seeking asylum

and withholding of removal.    On January 31, 2001, the Immigration

and Naturalization Service ("INS")2 served Tota with a Notice to

Appear charging that he was removable under § 212(a)(6)(A)(i) of

the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i),

as an alien present in the United States who has been neither

admitted nor paroled. On March 13, 2001, Tota admitted the factual

allegations against him and conceded removability.




1
  Tota also claims that the IJ erroneously denied protection under
the Convention Against Torture. He did not raise this claim below,
however, and we therefore deem the issue waived. See Debab v. INS,
163 F.3d 21, 26 (1st Cir. 1998) (issues not raised before the IJ or
BIA may not be raised upon judicial review).
2
    In March 2003, the relevant functions of the INS were
transferred into the new Department of Homeland Security and
reorganized into the Bureau of Immigration and Customs Enforcement
("BICE"). For simplicity, we refer to the agency throughout this
opinion as the INS.

                                 -2-
              After several preliminary hearings, Tota testified on

May 12, 2004 before an IJ.3          We draw the following facts from this

testimony      and    documents      Tota    presented    in     support    of    his

application.

              Tota was born in Albania in 1974 and is of Muslim faith.

In July 1986, under the rule of the Albanian Communist regime,

Tota's father was arrested on charges of propaganda. In October of

that year, Tota and his mother and brother were interned in a labor

camp where they remained until they were discharged in May 1990,

following the release of Tota's father by the terms of a 1989

amnesty program.         Following their release, Tota and his family

moved in with Tota's uncle in Tirana, the capital city of Albania.

              In July 1990, Tota was arrested along with approximately

thirty others outside the German Embassy in Tirana.4                       Tota was

detained for two weeks without being charged, during which time he

was beaten and denied access to an attorney.                   Less than one year

later,   in    February    1991,     he     was   arrested    while     attending   a

demonstration        against   the   ruling       Communist    Party.      Tota   was




3
   Tota's initial hearings took place before IJs in New York City.
He was granted a change of venue to Boston, closer to his new home
in Salem, Massachusetts, in a January 2004 proceeding.
4
   Tota's explanation as to what he was doing at the Embassy was
indiscernible in the transcript of his hearing, but he later stated
that at the time of his arrest, the police arrested many
individuals whom they thought were trying to leave the country.

                                          -3-
detained for one night without being charged with a crime and was

again beaten.

           In 1992, the Communist Party fell and the Democratic

Party ("DP") came to power in Albania.              In 1995 Tota gained

employment as a driver for the DP. The DP ruled until 1997, at

which   time   the    Socialist   Party   ("SP")   took   control    of   the

government.    The SP leadership consisted largely of former members

of the Communist Party.

           Tota continued his work as a driver for the DP until

February 2000.       During this time, he was beaten and his life was

threatened on five separate occasions.        In September 1998, police

arrested Tota at his home after he attended the funeral of the

prominent DP leader Azem Hajdari.5          After his arrest, Tota was

detained for approximately twenty hours without being charged, and

was denied access to an attorney.           During this detention, the

police beat Tota, threatened to kill him, and warned that similar

incidents would occur if he continued to support the DP.            Upon his

release, Tota did not seek medical attention but was cared for by

his mother, a nurse.

           The second incident took place in October 1998.            After

parking his car, Tota was approached by three people, including one



5
  Hajdari had been assassinated earlier that month, sparking riots
in which mobs attacked government buildings and leading to the
arrest of hundreds.    Tota denies having participated in this
violence.

                                    -4-
member of the SP, whom Tota recognized as a former member of the

Communist     regime.       The   assailants     again   ordered    Tota    not   to

continue working for the DP and beat him.               The incident lasted ten

minutes, and Tota did not seek medical attention.                        The third

incident occurred in March 1999. Tota was again stopped and beaten

by police, who ordered him to stop supporting the DP.                   Once again,

Tota did not seek medical treatment.

              In December 1999, Tota was arrested after he chauffered

the leader of the DP in Tirana.                 Tota was taken to a police

station, where he was held for approximately ten or eleven hours,

during which time two people beat him, kicking and punching him,

and threatened his life if he continued to work for the DP.                   Tota

was   never    officially     charged    with    a   crime.      Following    this

incident, Tota sought medical attention from a doctor who was a

friend of the family.         He received a shot for his pain and a few

days worth of medicine.

              The   final    incident   that     Tota    detailed   occurred      in

February 2000.        Tota and his father were approached by masked

secret service officers who beat them and threatened their lives if

they did not stop supporting the DP.              At one point, the officers

put a handgun to Tota's head.           The incident lasted twenty minutes

and   neither       Tota    nor   his   father    sought      medical    treatment

thereafter.




                                        -5-
            After the February incident, Tota stopped working as a

driver and discontinued his "volunteer" work distributing the DP

newspaper.    On April 3, 2000, Tota left Albania on a ship to Italy,

where he stayed for two days before using a forged Greek passport

to fly to Montreal, Canada.           On April 6, 2000, Tota walked across

the Canadian border into the United States.                     He was met by a

companion who drove him to Plattsburgh, New York, from where he

took a bus to New York City.               Tota's parents have been granted

political asylum in the United Kingdom, where his younger brother's

asylum application is still pending.

            Tota testified that he left Albania because "life was

difficult."       He feared that if he returned to Albania, he would

undergo episodes similar to those he experienced between 1998 and

2000 because the SP is still in power and maintains a strong police

force.

            The     IJ   denied     Tota's       application    for    asylum   and

withholding of removal.            Though the IJ expressed some skepticism

about certain aspects of Tota's testimony, he stated that Tota was

"essentially credible" throughout direct examination.                    The IJ also

found that Tota's testimony, if credible, would establish past

persecution.        He thus "[set] aside the issue of credibility, and

assum[ed] past persecution ha[d] been established."                    The IJ then

addressed     the    issue    of    Tota's       well-founded   fear     of   future

persecution.         First,   the     IJ    found    that   Tota   was    merely   a


                                           -6-
"driver/employee"   of   the    DP,   and   not   a    political   operative.

Second, the IJ found that "much has changed" in Albania, taking

particular note of the 2004 United States State Department Profile

of Asylum Claims and Country Conditions for Albania.6                 The IJ

quoted a passage stating that "there are no indications that the

Socialist Party, either through its own organization or through

Government authorities, is engaged in a pattern of repression of

violent behavior against its opponents."              In sum, the IJ stated

that it was "extremely unlikely that the Government will be waiting

to persecute a minor employee of the Democratic Party who is

returning after four years."      The IJ concluded by finding that the

government had sustained its burden of proof to show a change in

country conditions beyond a preponderance of the evidence, and that

"[Tota's] fear of returning to Albania cannot be said to be well-

founded."      Because   Tota    failed     to    meet   the   standard   for

establishing asylum, the IJ ruled that he failed to meet the

narrower standard for withholding of removal, and denied this

application as well.

            Tota appealed to the BIA, which summarily affirmed the

IJ's decision without opinion on August 22, 2005.                   Tota now

contests the decisions of the BIA and IJ.




6
   United States Department of State, Bureau of Democracy, Human
Rights and Labor, Albania: Profile of Asylum Claims and Country
Conditions (2004).

                                      -7-
                                II.    Discussion

             A.    Standard of Review

             Because     the   BIA    affirmed    the   IJ's   holding   without

opinion, we evaluate Tota's claims with reference to the findings

of the IJ.     See Akinfolarin v. Gonzáles, 423 F.3d 39, 42 (1st Cir.

2005); Keo v. Ashcroft, 341 F.3d 57, 60 (1st Cir. 2003); 8 C.F.R.

§ 1003.1(e)(4).

             We focus first on Tota's asylum claim.            If this fails on

the merits, his withholding of removal claim fails as well, because

the latter claim "places a more stringent burden of proof on an

alien than does a counterpart claim for asylum."                      Bocova v.

Gonzáles, 412 F.3d 257, 262 (1st Cir. 2005) (citing Makhoul v.

Ashcroft, 387 F.3d 75, 82 (1st Cir. 2004)) (internal citation

omitted).

             Tota bears the burden of establishing eligibility for

asylum by demonstrating that he is a "refugee."                 8 U.S.C. § 1158

(b)(1)(B)(i); 8 C.F.R. § 208.13(a).            A refugee is any person who is

outside of his home country and is "unable or unwilling to return

. . . 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)(A).       An applicant may meet this burden by showing past

persecution, which creates a legal presumption that he has a well-

founded fear of future persecution.             8 C.F.R. § 208.13(b)(1). When


                                        -8-
a petitioner has established a presumption that he has a well-

founded fear of future persecution, the government can rebut this

by showing 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."         8 C.F.R.

§ 208.13(b)(1)(i)(A).7

          We review the IJ's factual findings under the deferential

"substantial evidence" standard.   See Dhima v. Gonzáles, 416 F.3d

92, 95 (1st Cir. 2005).   We must uphold the determinations of the

IJ if they are "supported by reasonable, substantial, and probative

evidence on the record considered as a whole."        INS v. Elías-

Zacarías, 502 U.S. 478, 481 (1992).      See also Guzmán v. INS, 327

F.3d 11, 15 (1st Cir. 2003).          An IJ's findings of fact are

"conclusive unless any reasonable adjudicator would be compelled to

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

Dhima, 416 F.3d at 95.8

          B.   Merits

          The IJ assumed that Tota's testimony was "essentially

credible" and that the incidents to which he testified amounted to


7
    Alternatively, a petitioner may directly establish a well-
founded fear of persecution based on one of the five grounds listed
above. 8 C.F.R. 208.13(b)(2). Tota does not make this claim, so
we decline to address the issue further.
8
    Findings as to changed circumstances are usually factual
determinations. Mehilli v. Gonzáles, 433 F.3d 86, 93 (1st Cir.
2005). Here, the IJ's determination was a factual one, based on
the 2004 State Department Profile of Asylum Claims.

                                -9-
past persecution.          This creates the presumption that Tota has a

well-founded fear of future persecution, qualifying him for asylum

unless the government rebuts this presumption through evidence of

changed country circumstances.             Tota's first argument on appeal

rests    on   the    premise   that   the    IJ    did       not   afford     him   this

presumption.        This is simply incorrect.           In making this argument,

Tota quotes one line from the IJ's decision: "[t]he court finds it

extremely unlikely that the Government will be waiting to persecute

a minor employee of the Democratic Party who is returning after

four years."         This line itself admittedly affords no explicit

presumption     of     a    well-founded     fear       --    indeed     it    implies

unreservedly that Tota's fear is not objective.                    The IJ, however,

stated in his very next sentence that "[t]he court is satisfied

that    the   Government     has   sustained      its    burden     of   proof      by   a

preponderance of evidence with regard to the change of conditions

in Albania and that respondent's fear of returning to Albania

cannot be said to be well-founded."               This sentence indicates that

the IJ had recognized a presumption of a well-founded fear but had

found that the government rebutted it.                  We therefore find that,

though he may not have said so in as many words, the IJ correctly

afforded Tota the presumption of a well-founded fear of future

persecution.9


9
  To the extent that the IJ did not "separate the strands" of this
process and "discuss them individually," Waweru v. Gonzáles, 437
F.3d 199, 204 (1st Cir. 2006), we will "uphold a decision of less

                                      -10-
             In the alternative, Tota claims that if the IJ did

correctly apply the burden-shifting procedure, substantial evidence

does   not   support   the   determination    that     "[t]here   has    been   a

fundamental change in circumstances such that the applicant no

longer has a well-founded fear of persecution."            8 C.F.R. § 208.13

(b)(1)(i)(A).    We disagree.

             The government's evidence of changed country conditions

is presented mainly in the form the 2004 State Department Profile

of Asylum Claims.      While "[t]he advice of the State Department is

not binding," Gailius v. INS, 147 F.3d 34, 45 (1st Cir. 1998)

(citations and internal quotation marks omitted), State Department

reports are "generally probative of country conditions."                  Palma-

Mazariegos v. Gonzáles, 428 F.3d 30, 36 (1st Cir. 2005).                Evidence

in   these   reports   never    "automatically    trump[s]"       petitioner's

specific evidence, Waweru v. Gonzáles, 437 F.3d 199, 203 (1st Cir.

2006) (citations and internal quotation marks omitted) (emphasis in

original), and is "open to contradiction."           Zarouite v. Gonzáles,

424 F.3d 60, 63 (1st Cir. 2005).           Further, "abstract evidence of

generalized changes in country conditions, without more, cannot

rebut a presumption of a well-founded fear of future persecution."

Palma-Mazariegos, 428 F.3d at 35.            On the other hand, where a

report    demonstrates       fundamental     changes     in   the       specific


than ideal clarity if the agency's path may reasonably be
discerned." Id. (quoting Bowman Transp., Inc. v. Ark.-Best Freight
Sys., Inc., 419 U.S. 281, 286 (1974) (internal citations omitted)).

                                    -11-
circumstances that form the basis of a petitioner's presumptive

fear of future persecution, it "may be sufficient, in and of

itself," to rebut that presumption.           Id. at 36 (emphasis added).

           In the instant case, the profile of asylum claims details

at length the progression of Albania's political environment,

specifically as it relates to political asylum claims, which

constitute a "majority" of Albanian asylum cases.                       The report

states that "there have been no major outbreaks of political

violence   since   1998,"10    and    that   "[t]hough      serious      political

repression   existed   in     the    past,   there    are   no   indications    of

systemic political persecution in Albania at the present time."

The report also states that, as of 2004, there were no known cases

of "individuals in prison or detention for political reasons."

Finally, "there is no indication that the former Communists . . .

have sought retribution against opponents of the Communist regime

or the many individuals who have returned to Albania after having

fled   abroad."     Indeed,     although      "[i]n    2003,     many    countries

increased deportations of illegal Albanian residents, . . . [n]o

reports or evidence of any mistreatment of returnees at the hands



10
   While Tota does allege that acts of persecution were perpetrated
against him after 1998, the report's proclamation that there have
been no major outbreaks during that time certainly cannot be read
to stand for the proposition that no politically motivated violence
occurred, which would call into question its applicability to
Tota's particular situation. We therefore see no reason why this
passage distinguishes Tota from other former DP members who would
face improved conditions upon a return to Albania.

                                      -12-
of police or others have been received."                 These passages point

specifically to greatly improved conditions for those in Tota's

position -- individuals who suffered past persecution on political

grounds at the hands of members of the former Communist regime, and

who would be returning to Albania after having fled abroad.                     This

is sufficient, "in and of itself," Palma-Mazariegos, 428 F.3d at

36,   to   rebut    Tota's   presumptive        well-founded     fear    of   future

persecution.

            For his part, Tota presents no specific contradictory

evidence, nor any other reasons why the changed conditions do not

apply to his individual situation.              His attempts to discredit the

IJ's finding and the methods used to arrive at that finding are

unpersuasive.

            To     this   end,   Tota   first    takes   issue    with    the   IJ's

reference to a passage stating that "there are no indications that

the Socialist party either through its own organization or through

government authorities is engaged in a pattern of repression of

violent behavior against its opponents." Placing great emphasis on

the fact that this passage was taken from a section entitled "Since

1998," Tota argues that because his abuses took place between 1998

and 2000, the passage cannot logically support a finding of changed

country conditions after that time.                This simply misreads the

passage as a whole.        There is no indication that the title "Since

1998" intends to refer to the conditions contained within the time


                                        -13-
frame as being static.          Indeed, the very first line of the section

states that "Albania's human rights record has improved steadily

since 1997 when the Socialist Party came to power" (emphasis

added).    The section also describes specific instances that show

significant    reductions        in    politically-motivated      violence    and

arrests since 2000.       The last "large-scale, but generally short-

term," arrests were made in conjunction with demonstrations and

riots by Democratic Party members in protest of the allegedly

rigged 2000 local elections.              The elections of 2001-2003 were

"hotly    contested,"     and    yet    "generally   free    of   violence"   and

unfolded without police interference.            Outbreaks of violence were

isolated and generally limited to clashes between individual party

supporters, not initiated by the government or police force.                   As

for an indicator of future violence, the section states that "in

recent years, Albanians have been able to exercise freely their

right to change their government through democratic means.               Such a

right necessarily includes the ability . . . to organize and

campaign broadly free from Government interference."               We therefore

hold that the "Since 1998" section, standing alone, can logically

support the determination that there has been a fundamental shift

in circumstances related to Albania's political freedom since

Tota's last abusive incident in early 2000.

            Tota   next     launches      a    broad-based    attack    on    the

government's evidence and the IJ's consideration of the record as


                                        -14-
a whole.11     His accusation that the IJ neglected to carry out his

official duty to properly weigh the evidence provided by both sides

is meritless. "[I]n the absence of clear evidence to the contrary,

courts presume that [government agencies] have properly discharged

their official duties."       United States v. Armstrong, 517 U.S. 456,

464 (1996) (quoting United States v. Chemical Foundation, Inc., 272

U.S. 1, 14-15 (1926)) (internal quotation marks omitted).                   Tota

provides absolutely no evidence that the IJ neglected to duly

review   all    of   the   evidence   in   the   record   before   making   his

decision.

              In sum, we find that substantial evidence culled from the

State Department asylum claims report, specifically tailored to the

discussion of political persecution of DP members by the Socialist

government, supports the IJ's finding that the government met its

burden   of    rebutting    Tota's    presumptive    well-founded    fear    of


11
     Tota argues that "[w]hile the IJ theoretically could have
reviewed all of the evidence in the record and determined that the
substance of the 33 pages [submitted by the government] outweighed
the volume of the 500 [submitted by petitioner], he neglected to do
so."   The government's evidence consisted of the aforementioned
2004 State Department Profile of Asylum Claims and a 2003 State
Department Country Report on Human Rights Practices.       Much of
Tota's evidence consisted of State Department reports that either
predated or were identical to those submitted by the government.
Tota also submitted a lengthy article detailing violations of media
freedom and others detailing mistreatment of suspected criminals.
Neither issue is particularly relevant to an analysis of Tota's
particular situation. Finally, to the extent that the sheer volume
of evidence introduced into the record is a valid consideration,
Tota grossly overstates his case by double-counting many articles
entered into the record both directly and as appendices to his
original asylum application.

                                      -15-
persecution.     Tota has provided no direct evidence to refute the

IJ's finding, and his criticisms of the methods and reasoning used

by the IJ are unpersuasive.           There is thus no basis to overturn the

IJ's denial of Tota's asylum claim.12

            C.   BIA's Summary Affirmance

            Finally, Tota claims that the BIA violated its own

procedure by which it may affirm a decision of the IJ without

opinion.    Under this procedure, the BIA may summarily affirm the

decision of an IJ if it determines that (i) the IJ's decision was

correct; (ii) any errors in the IJ's decision were either harmless

or nonmaterial; and (iii) either the issues on appeal are squarely

controlled by existing precedent, and do not involve application of

this    precedent    to   a   novel    factual   situation,   or   are     not   so

substantial that the case warrants the issuance of a written

opinion.    8 C.F.R. § 1003.1(e)(4).

            Tota does not challenge the BIA's summary affirmance

procedure itself.13       Instead, he claims that the BIA misapplied its

own    regulations   by    issuing     a   summary   affirmance    based    on   an


12
    Because Tota's asylum claim fails, we need not evaluate his
claim under the more stringent standard for withholding of removal.
Albathani, 318 F.3d at 374.
13
   We have repeatedly rejected such challenges because this Court
can review the IJ directly and remand to the BIA for further
adjudication as is warranted. See Dhima, 416 F.3d at 96-97 (1st
Cir. 2005) ("although the summary affirmance does not give the
BIA's reasons, '[t]he courts will continue to have the IJ's
decision and the record upon which it is based available for
review.'") (quoting Albathani, 318 F.3d at 377-78).

                                        -16-
incorrect result and upon errors of law and fact that were neither

harmless nor immaterial.         This claim does not alter our initial

analysis.      If the IJ does issue an erroneous decision, we will

remand to the BIA regardless of whether a petitioner challenges the

BIA's summary affirmance of that decision.              If, on the other hand,

the IJ's decision is correct, and any errors are harmless and

nonmaterial, the BIA's summary affirmance procedure will not have

been misapplied.     In the instant case, because we have found that

the IJ's decision is supported by substantial evidence, and that

the IJ did not make any harmful or material errors of fact or law,

Tota's claim fails.      See, e.g., Ziu v. Gonzáles, 412 F.3d 202, 204

(1st Cir. 2005) (rejecting petitioner's challenge that the BIA

misapplied its summary affirmance procedure to an incorrect IJ

decision upon finding that the IJ's decision was not erroneous).

                               III.   Conclusion

            For the reasons stated above, we deny the petition for

review   and    affirm   the   decision      of   the   IJ,   and   the   summary

affirmance of the BIA.

            Affirmed.




                                      -17-
