                                                                     [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                                                                               FILED
                         ------------------------------------------- U.S. COURT OF APPEALS
                                                                       ELEVENTH CIRCUIT
                                      No. 06-14423                          June 20, 2007
                                Non-Argument Calendar                   THOMAS K. KAHN
                        --------------------------------------------          CLERK

                               BIA No. A77-636-927

EDI SALIAJ,

                                                         Petitioner,

                                          versus

U.S. ATTORNEY GENERAL,

                                                         Respondent.

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

                                    (June 20, 2007)

Before EDMONDSON, Chief Judge, BLACK and MARCUS, Circuit Judges.

PER CURIAM:


      Edi Saliaj, a citizen of Albania, petitions for review of the affirmance by the

Board of Immigration Appeals (“BIA”) of the decision of the Immigration Judge
(“IJ”). The decision denied asylum, withholding of removal, and relief under the

United Nations Convention Against Torture and Other Cruel, Inhuman, or

Degrading Treatment or Punishment (“CAT”). We dismiss Saliaj’s petition in part

and grant the petition in part.

      In addition to appealing the IJ’s decision to the BIA, Saliaj also asked the IJ

to reconsider her decision, which the IJ denied; and Saliaj now argues that the IJ

erred in denying his motion for reconsideration. The government asserts that we

lack jurisdiction to consider this claim because Saliaj did not raise the denial of his

motion for reconsideration to the BIA.

      We review our subject matter jurisdiction de novo. Gonzalez-Oropeza v.

U.S. Attorney Gen., 321 F.3d 1331, 1332 (11th Cir. 2003). “We lack jurisdiction

to consider a claim raised in a petition for review unless the petitioner has

exhausted his administrative remedies with respect thereto.” Amaya-Artunduaga

v. U.S. Attorney Gen., 463 F.3d 1247, 1250 (11th Cir. 2006); see also 8 U.S.C. §

1252(d)(1) (providing that a court only may review a removal order if “the alien

has exhausted all administrative remedies available to the alien as of right”);

Sundar v. INS, 328 F.3d 1320, 1323 (11th Cir. 2003) (explaining that we “lack

jurisdiction to consider claims that have not been raised before the BIA”).

Because Saliaj did not present the denial of his motion for reconsideration to the

                                           2
BIA, we are without jurisdiction to consider it; and we dismiss his petition for

review on this claim.

      We next address Saliaj’s arguments about the IJ’s decision denying him

asylum, withholding of removal, and CAT relief. Saliaj asserts that, in

considering his claims, the IJ erred in failing to make a finding on whether Saliaj

had suffered past persecution.

      We review the IJ’s decision in this case, not the BIA’s, because the BIA

affirmed the IJ’s decision without an opinion. See Mendoza v. U.S. Attorney

Gen., 327 F.3d 1283, 1284 n.1 (11th Cir. 2003). An IJ’s factual determination that

an alien is unentitled to asylum “must be upheld if it is supported by substantial

evidence.” Mazariegos v. U.S. Attorney Gen., 241 F.3d 1320, 1323 (11th Cir.

2001). An alien may obtain asylum if he is a “refugee”: a person unable or

unwilling to return to his country of nationality, and who 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, including

political opinion. 8 U.S.C. §§ 1101(a)(42)(A); 1158(a)(1), (b)(1). The asylum

applicant bears the burden of proving statutory “refugee” status with specific and

credible evidence. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001).




                                          3
       Saliaj testified that, because of his affiliation with the Democratic Party in

Albania and his work as a Democratic Party election observer, he was threatened

and beaten by Socialist Party members. Saliaj left Albania and entered Greece and

Italy without permission; but he eventually was sent back to Albania from both

countries. Saliaj then left Albania for the United States.

       The IJ found Saliaj’s testimony during his asylum hearing to be “totally

credible.” Although the IJ concluded that Saliaj had not demonstrated a well-

founded fear of future persecution in Albania, the IJ failed to make a finding on

whether Saliaj had suffered past persecution. The IJ’s failure to make this

determination precludes us from engaging in meaningful judicial review of the

merits of her order in this case.1 See Antipova v. U.S. Attorney Gen., 392 F.3d

1259, 1265 (11th Cir. 2004) (explaining, in the context of a withholding of

removal claim, that “the regulations do not give the IJ the discretion to refrain

from making a determination regarding past persecution altogether”). Therefore,

we vacate the BIA’s and IJ’s decisions and remand this case for a determination of




  1
   A determination of whether an alien suffered past persecution is necessary because, if the IJ finds
that the alien established past persecution, the alien “shall also be presumed to have a well-founded
fear of persecution on the basis of the original claim.” 8 C.F.R. § 208.13(b)(1). The government
can rebut this presumption by showing that conditions of the country of the alien’s nationality have
changed or that relocation within that country is reasonably possible. Id.

                                                  4
whether Saliaj suffered past persecution and whether he is eligible for the

requested relief from removal.2

       PETITION DISMISSED IN PART AND GRANTED IN PART;

VACATED AND REMANDED.




  2
    Because we conclude that the IJ failed to render a reasoned decision on whether Saliaj suffered
past persecution on a protected ground, we do not reach Saliaj’s argument that the IJ, as affirmed by
the BIA, erred when she concluded that Saliaj failed to establish a well-founded fear of future
persecution. In addition, because the IJ based her decisions about withholding of removal and CAT
relief on her denial of Saliaj’s asylum claim, we cannot review those issues. See Antipova, 392 F.3d
at 1265.

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