            Case: 13-15524   Date Filed: 07/23/2014   Page: 1 of 8


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-15524
                         Non-Argument Calendar
                       ________________________

                        Agency No. A200-042-042



MISKA BESNIK,

                                                                       Petitioner,

                                     versus

U.S. ATTORNEY GENERAL,

                                                                     Respondent.

                       ________________________

                  Petition for Review of a Decision of the
                       Board of Immigration Appeals
                        ________________________

                              (July 23, 2014)

Before TJOFLAT, JORDAN and FAY, Circuit Judges.

PER CURIAM:
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       Besnik Miska,1 is a native and citizen of Albania. He was admitted to the

United States under the Visa Waiver Program on November 5, 2005.2 He petitions

this court to review the final order of the Board of Immigration Appeals (“BIA”)

affirming the Immigration Judge’s (“IJ”) denial of his application for asylum and

withholding of removal. His petition presents two issues: (1) whether substantial

evidence supports the IJ’s and BIA’s determination that he failed to demonstrate a

well-founded fear of future persecution; (2) whether the BIA erred in failing to

consider his claim for humanitarian asylum. We deny his petition.

                                                I.

       We review the decision of the BIA as well as any portions of the IJ’s opinion

that the BIA expressly adopted. Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341,

1350 (11th Cir. 2009). We review the IJ’s decision to the extent that the BIA

expressly agrees with the IJ’s reasoning. Id. We review the BIA’s conclusions of

       1
        The case styling reflects that the petitioner’s name is “Miska Besnik,” though the record
makes clear that the petitioner’s name is “Besnik Miska.”
       2
           Under the Visa Waiver Program, aliens from certain countries are permitted to visit the
United States for 90 days or less without a visa. See Immigration and Nationality Act (“INA”) §
217(a). Under section 217(b)(2) of the INA, 8 U.S.C. § 1187(b)(2), Visa Waiver Program
applicants agree to waive any challenge to their removal. Thus, they are not entitled to
removal proceedings under section 240, 8 U.S.C. § 1229a. 8 C.F.R. § 1208.2(c)(1)(iii).
Applicants are, however, permitted to apply for asylum, withholding of removal, and CAT
protection. INA § 217(b)(2), 8 U.S.C. § 1187(b)(2). Applicants may pursue their asylum
application before an immigration judge in “asylum only”proceedings, and the court retains
jurisdiction to review such proceedings. See Nreka v. U.S. Att’y Gen., 408 F.3d 1361, 1366-
68 (11th Cir. 2005).
        In the proceedings below, Miska sought CAT protection. In the brief he filed in support
of his petition for review, he abandoned the claim. We therefore make no reference to the claim.

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law de novo but its factual findings under the substantial evidence test.

Kazemzadeh, 577 F.3d at 1350. In determining whether substantial evidence

supports the decision at hand, our review is highly deferential. Id. at 1351. That

is, we must not reweigh the importance the BIA attributed to the evidence in the

record. Djonda v. U.S. Att’y Gen., 514 F.3d 1168, 1175 (11th Cir. 2008). We take

that evidence in the light most favorable to the BIA’ decision, drawing all

reasonable inferences in favor of that decision, and reverse its findings of fact only

when the record compels a reversal. Id. Thus, the “mere fact that the record may

support a contrary conclusion is not enough to justify a reversal of the

administrative findings.” Id. (quotation omitted). In sum, we must affirm the

BIA’s decision “if it is supported by reasonable, substantial, and probative

evidence on the record considered as a whole.” D-Muhumed v. U.S. Att’y Gen.,

388 F.3d 814, 818 (11th Cir. 2004) (quotation omitted).

       An alien who is present in the United States may apply for asylum.

Immigration and Nationality Act (“INA”) § 208(a)(1), 8 U.S.C. § 1158(a)(1). The

Attorney General 3 has the discretion to grant asylum if the alien meets his burden

of proving his status as a “refugee.” INA § 208(b)(1)(A), 8 U.S.C.

§ 1158(b)(1)(A); 8 C.F.R. § 208.13(a); Al Najjar v. Ashcroft, 257 F.3d 1262, 1284

(11th Cir. 2001). A “refugee” is, in relevant part, any person outside the country of

       3
       Our references to the Attorney General are to the Secretary of the Department of
Homeland Security as well.
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his nationality, who is “unable or unwilling to return to, and is unable or unwilling

to avail himself . . . of the protection of, that country because of persecution or a

well-founded fear of persecution on account of” a protected ground. INA

§ 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A).

      An asylum applicant must establish either: “(1) past persecution on account

of a statutorily protected ground or (2) a well-founded fear of future persecution on

account of a protected ground.” Li Shan Chen v. U.S. Att’y Gen., 672 F.3d 961,

964 (11th Cir. 2011) (quotation omitted). An applicant establishes eligibility for

asylum based on a well-founded fear of future persecution if he demonstrates that

he has a subjectively genuine and objectively reasonable fear of persecution. Silva

v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006). If the applicant

demonstrates past persecution on account of a protected ground, there is a

rebuttable presumption that he has a well-founded fear of future persecution. Tan

v. U.S. Atty. Gen., 446 F.3d 1369, 1375 (11th Cir. 2006). The Attorney General

may rebut this presumption if it shows by a preponderance of the evidence that

there has been a fundamental change in circumstances in the applicant’s home

country such that the applicant no longer has a well-founded fear of persecution on

account of a protected ground: race, religion, nationality, membership in a

particular social group, or political opinion. Antipova v. U.S. Att’y Gen., 392 F.3d

1259, 1264 (11th Cir. 2004); 8 C.F.R. § 208.13(b)(1)(i)(A).


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      Although there is no bright line rule for what constitutes a fundamental

change in circumstances, the change must be one that is sufficient to rebut the

presumption that the applicant’s life or freedom would be threatened upon

returning to his home country. Imelda v. U.S. Att’y Gen., 611 F.3d 724, 729 (11th

Cir. 2010). The BIA is permitted to rely heavily on Department of State reports

when making this determination, as long as the BIA does not fail to account for the

applicant’s unique circumstances. Id. at 728-29.

      To obtain withholding of removal, an applicant must establish that his “life

or freedom would be threatened in that country because of [her] race, religion,

nationality, membership in a particular social group, or political opinion.” INA

§ 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A). An applicant for withholding of

removal must show a “clear probability of persecution,” or that he will more likely

than not be persecuted if deported. Nkacoang v. INS, 83 F.3d 353, 355 (11th Cir.

1996). This standard is more stringent than the “well-founded fear of future

persecution” required for asylum. Tan, 446 F.3d at 1375. Accordingly, if an

applicant is unable to meet the “well-founded fear” standard for asylum, he is

generally precluded from qualifying for either asylum or withholding of removal.

Nkacoang, 83 F.3d at 355.

      Substantial evidence supports the BIA and the IJ’s conclusion that Miska

failed to establish a well-founded fear of future persecution because the Attorney


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General had shown a fundamental change in the conditions in Albania. The 2010

Humanitarian Report states that that there were no reports of arbitrary or unlawful

killings by the government, there were no reports of politically motivated

disappearances, and political parties operated without restriction or outside

interference. Moreover, the 2010 Guidance Note states that the Democratic Party,

Miska’s former party, is in power, a number of political parties operate throughout

the country, political parties operate without restrictions or outside interference,

political parties are able to register and contest elections, there is no evidence of

persecution, and those claiming to face persecution can seek protection from

authorities or relocate internally. The record does not compel a finding that the

Attorney General failed to rebut the presumption that Miska’s life or freedom

would be threatened upon returning to his home country. Imelda, 611 F.3d at 729.

Accordingly, we deny the petition to the extent that Miska challenges the IJ and the

BIA’s determination that he failed to demonstrate a well-founded fear of future

persecution.

                                           II.

      We generally review only the decision of the BIA if it is the final agency

decision. Al Najjar, 257 F.3d at 1284. We consider a question of subject matter

jurisdiction de novo. Kazemzadeh, 577 F.3d at 1350; Amaya-Artunduaga v. U.S.

Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006).


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      We lack jurisdiction to consider a claim raised in a petition for review unless

the petitioner has exhausted his administrative remedies with respect the claim.

Amaya-Artunduaga, 463 F.3d at 1250. The exhaustion doctrine requires the

petitioner to raise his claims before the BIA, to ensure that it had a full opportunity

to consider them. Id. The BIA has noted that it is inappropriate for it to consider

an issue not raised before the IJ. See Matter of J-Y-C-, 24 I. & N. Dec. 260, 261

n.1 (BIA 2007). Additionally, the BIA will not engage in fact-finding on appeal. 8

C.F.R. 1003.1(d)(3)(iv).

      “An applicant may qualify for asylum even without establishing a well-

founded fear of future persecution if (A) The applicant has demonstrated

compelling reasons for being unwilling or unable to return to the country arising

out of the severity of the past persecution; or (B) The applicant has established that

there is a reasonable possibility that he or she may suffer other serious harm upon

removal to that country.” 8 C.F.R. § 1208.13(b)(1)(iii). This provision describes

what courts refer to as “humanitarian asylum.” Mehmeti v. U.S. Att’y Gen, 572

F.3d 1196, 1200 (11th Cir. 2009).

      The BIA must give “reasoned consideration” to a petition for relief from

removal. Perez-Guerrero v. United States Atty. Gen., 717 F.3d 1224, 1232 (11th

Cir. 2013). In doing so, the BIA must consider the issues raised and announce its




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decision in terms sufficient to enable a reviewing court to perceive that it had

“heard and thought and not merely reacted.” Id.

      To the extent Miska argues that the BIA denied him due process of law in

failing to consider humanitarian asylum, the argument has not been exhausted; he

presents it for the first time here, in this court. Amaya-Artunduaga, 463 F.3d at

1250. Putting that aside, we hold that the BIA did not err, either by failing to

afford reasoned consideration to his arguments about humanitarian asylum or by

rejecting his contention that the IJ should have considered his entitlement to

humanitarian asylum. First, the BIA clearly considered his humanitarian asylum

argument and found that he had waived the claim to such asylum by not requesting

it before the IJ. The BIA thus satisfied the reasoned consideration standard.

Perez-Guerrero, 717 F.3d at 1232. Second, the BIA did not err in rejecting the

humanitarian asylum argument because BIA precedent is clear: claims cannot be

raised for the first time on appeal. J-Y-C-, 24 I. & N. Dec. at 261 n.1.

      PETITION DENIED.




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