    08-3462-ag
    Toma v. Holder
                                                                                   BIA
                                                                              Rohan, IJ
                                                                           A099 599 253
                      UNITED STATES COURT OF APPEALS
                          FOR THE SECOND CIRCUIT

                               SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.     CITATION TO SUMMARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
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         At a stated term of the United            States Court of Appeals
    for the Second Circuit, held at the            Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl            Street, in the City of
    New York, on the 5 th day of January,           two thousand ten.

    PRESENT:
             JOHN M. WALKER, JR.,
             GUIDO CALABRESI,
             REENA RAGGI,
                    Circuit Judges.
    _______________________________________

    ALBERT TOMA, ALSO KNOWN AS BRUNO
    ORNELLA,
             Petitioner,
                     v.                                    08-3462-ag
                                                           NAC
    ERIC H. HOLDER, JR., ATTORNEY GENERAL,
             Respondent.
    ______________________________________

    FOR PETITIONER:                Saul C. Brown, New York, New York.
FOR RESPONDENT:        Tony West, Assistant Attorney
                       General, Civil Division; Cindy S.
                       Ferrier, Senior Litigation Counsel,
                       Office of Immigration Litigation;
                       Timothy G. Hayes, Trial Attorney,
                       Office of Immigration Litigation,
                       United States Department of Justice,
                       Washington, D.C.

    UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

    Petitioner Albert Toma, a native and citizen of

Albania, seeks review of a June 16, 2008 order of the BIA

affirming the August 23, 2006 decision of Immigration Judge

(“IJ”) Patricia A. Rohan denying his application for asylum,

withholding of removal and relief under the Convention

Against Torture (“CAT”).   In re Albert Toma, No. A099 599

253 (B.I.A. Jun. 16, 2008), aff’g No. A099 599 253 (Immig.

Ct. N.Y. City Aug. 23, 2006).       We assume the parties’

familiarity with the underlying facts and procedural history

in this case.

    We have jurisdiction under 8 U.S.C. § 1252(a)(1)

because the denial of relief in “asylum only” proceedings is

the “functional equivalent of a removal order.”       Kanacevic

v. INS, 448 F.3d 129, 134-35 (2d Cir. 2006).       When, as in


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this case, the BIA affirms without addressing each aspect of

the IJ’s decision, we review the decisions of both the BIA

and the IJ.   See Ming Xia Chen v. BIA, 435 F.3d 141, 144 (2d

Cir. 2006).   We review the agency’s factual findings for

substantial evidence, see 8 U.S.C. § 1252(b)(4)(B); Jian Hui

Shao v. Mukasey, 546 F.3d 138, 157-58 (2d Cir. 2008), and

its legal conclusions and application of law to undisputed

fact de novo, see Salimatou Bah v. Mukasey, 529 F.3d 99, 110

(2d Cir. 2008).

I.   Asylum and Withholding of Removal

     Although Toma did not argue before the BIA that the IJ

erred in finding that changed country conditions in Albania

rebutted any presumption of a well-founded fear of future

persecution, because the BIA nonetheless considered the

issue, we deem it exhausted.   See Xian Tuan Ye v. DHS, 446

F.3d 289, 296-97 (2d Cir. 2006).

     When an applicant for asylum has been found to have

suffered past persecution, the presumption of a well-founded

fear of future persecution may be rebutted if an IJ finds

that there has been a fundamental change in circumstances

such that the applicant’s life or freedom would no longer be

threatened in the country of removal on account of one of


                               3
the five statutory grounds.     8 C.F.R. § 1208.13(b)(1)(i)(A);

see also Hoxhallari v. Gonzales, 468 F.3d 179, 188 (2d Cir.

2006) (“[T]here is no doubt that there has been a

fundamental change in the political structure and government

of Albania, beginning in 1990.      While Democrats have not

been continuously in power, the IJ's perfunctory finding of

changed conditions in Albania is adequate.”).

    Here, the agency assumed Toma’s credibility and found

that, even if he had established past persecution on account

of his involvement with the Legality Movement Party, the

government successfully rebutted any presumption of a well-

founded fear by demonstrating a significant change in

country conditions.     This determination is supported by

substantial evidence, namely, (1) in Albania’s 2005

election, a coalition comprising, inter alia, the Democratic

Party and the Legality Movement Party won 46 seats in

parliament; and (2) Toma’s father, who also belongs to

Legality Movement Party, has continued living peacefully in

Albania.

    Toma does not challenge these findings before this

Court.     Instead, he argues that, because the 2005 Country

Report discusses police violence and corruption in Albania,


                                4
“conditions remain unsafe and dangerous . . . regardless of

the fact that the Democratic Party has formed a coalition

government and now controls a majority of seats in

Parliament.”   Pet’r’s Br. at 18.   Such general allegations,

however, are insufficient to establish eligibility for

asylum.   See Melgar de Torres v. Reno, 191 F.3d 307, 314 n.3

(2d Cir. 1999).

      Accordingly, the agency’s finding that changed country

conditions rebutted the presumption of a well-founded fear

of future persecution is supported by substantial evidence.

As Toma was unable to carry his burden for asylum, he has

necessarily failed to carry the heavier burden required for

withholding of removal.    See Paul v. Gonzales, 444 F.3d 148,

155-56 (2d Cir. 2006).    Because the changed country

conditions finding is dispositive, see 8 C.F.R.

§§ 1208.13(b)(1)(i)(A), 1208.16(b)(1)(1)(A), we need not

address the agency’s additional findings.

II.   CAT Relief

      Although Toma asserts that he also seeks review of the

denial of CAT relief, his brief confines any CAT argument to

a single sentence, which does not address the agency’s

conclusion that neither his testimony nor any other evidence


                               5
in the record established a likelihood of torture upon

return to Albania.   Accordingly, we deem any CAT challenge

waived.   See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541

n.1, 545 n.7 (2d Cir. 2005).

    For the foregoing reasons, the petition for review is

DENIED.   As we have completed our review, any pending motion

for a stay of removal in this petition is DISMISSED as moot.

Any pending request for oral argument in this petition is

DENIED in accordance with Federal Rule of Appellate

Procedure 34(a)(2), and Second Circuit Local Rule 34(b).

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk

                            By:___________________________




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