                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                                F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                     May 25, 2005

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 04-60389
                           Summary Calendar



     EDUART MUSTAFA,

                                           Petitioner,

          versus

     ALBERTO R. GONZALEZ, U.S. ATTORNEY GENERAL,

                                           Respondent.




               Petition for Review of an Order of the
                    Board of Immigration Appeals
                         BIA No. A95 218 798



Before GARWOOD, JOLLY and CLEMENT, Circuit Judges.

PER CURIAM:*

     Eduart Mustafa is a native and citizen of Albania.                The

Immigration    and   Naturalization   Service   (INS)   began     removal

proceedings against Mustafa in January of 2000, contending that he

was subject to removal under 8 U.S.C. § 1182(a)(6)(A)(i) as an

alien present in the United States without having been admitted or

paroled. Mustafa conceded removability on this ground, but applied



     *
     Pursuant to 5TH CIR. R. 47.5 the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
for asylum under 8 U.S.C. § 1158(a), withholding of removal under

8 U.S.C. § 1231(b)(3), and withholding of removal under the United

Nations Convention      Against    Torture       (CAT).   The    basis   of   his

application was fear of persecution by the Albanian government

because of his association with the Balli Kombetar Party.                     The

Immigration Judge (IJ) denied this relief on June 24, 2002 and this

decision was summarily affirmed by the Board of Immigration Appeals

(BIA) on November 10, 2003.       Mustafa did not appeal to this court.

     He did, however, file a motion with the BIA on December 30,

2003 asking that his case be reopened.                Mustafa asserted a new

factual     basis   (arising   after       the   IJ   hearing)    for    asylum,

withholding of removal under 8 U.S.C. § 1231(b)(3), and withholding

of removal under the CAT.      He alleged in an affidavit that he was

afraid of being killed in Albania by a man named Bill Belini

(Belini).    Mustafa stated that he worked for Belini in the United

States.   Mustafa further alleged that the United States government

arrested Belini and issued a material witness warrant for Edmund

Demiraj, who is Mustafa’s cousin and brother-in-law as well as a

former employee of Belini.        Mustafa does not specify in his motion

to reopen the nature of the charges against Belini.               According to

Mustafa, Belini violated the terms of his bond and fled to his

native Albania where he abducted and shot Demiraj, who, for reasons

Mustafa does not explain, was also in Albania.            Demiraj returned to

the United States illegally but was granted asylum and withholding



                                       2
of removal by an IJ in Texas on the basis of his fear of being

killed by Belini.    Mustafa contends that Belini will try to kill

him too if he is removed to Albania because Belini has announced

his intention to retaliate against Demiraj’s family.

     On April 6, 2004, the BIA denied Mustafa’s motion to reopen on

the ground that he failed under 8 C.F.R. § 1003.2(c) to introduce

evidence sufficient to establish that he would not be protected

from Belini by the Albanian authorities and he had not met his

burden of showing that he had new evidence that “would likely

change the result in the case” if it were reopened.               On May 4,

2004, Mustafa appealed to this court from the BIA’s April 6, 2004

decision denying his motion to reopen.

     Reopening   a   concluded   immigration   proceeding    is    strongly

disfavored and Mustafa bears a considerable burden.         INS v. Abudu,

108 S. Ct. 904, 913-914 (1988).         We apply a highly deferential

abuse of discretion standard to a denial of a motion to reopen.

Lara v. E.M. Trominski, 216 F.3d 487, 496 (5th Cir. 2000).          We will

affirm a decision of the BIA “so long as it is not capricious,

racially invidious, utterly without foundation in the evidence, or

otherwise so aberrational that it is arbitrary rather than the

result of any perceptible rational approach.”        Osuchukwu v. INS,

744 F.2d 1136, 1141-42 (5th Cir. 1984); see also INS v. Doherty,

112 S. Ct. 719, 724 (1992) (stating that the authority to reopen is

regulatory, not statutory, and the “regulation with which we deal


                                    3
here, [8 C.F.R. § 1003.2(c)], is couched solely in negative terms;

it requires that under certain circumstances a motion to reopen be

denied, but does not specify the conditions under which it shall be

granted[.]”).

     To prevail on his claim for asylum, Mustafa would have to

prove that is unwilling to return to Albania because of “a well-

founded    fear   of   persecution...on   account   of   race,   religion,

nationality, membership in a particular social group, or political

opinion[.]”       8 C.F.R. § 1208.13(b)(2); 8 U.S.C. § 1101(a)(42)

(defining “refugee”).        Though persecution generally refers to

malfeasance by authorities, the BIA does recognize that persecution

can occur at the hands of private persons when the government is

wholly unable or unwilling to intervene.      Abdebisi v. INS, 952 F.2d

910, 913-14 (5th Cir. 1992).     At minimum, therefore, Mustafa would

have to prove in a new hearing that the Albanian government would

not or could not protect him from Belini.1

     Mustafa’s motion to reopen was required to supply affidavits

or other evidentiary material that he intended to use in a new

hearing.    Guevara v. INS, 786 F.2d 1242, 1247 (5th Cir. 1986); 8

U.S.C. § 1229a(c)(6)(B); 8 C.F.R. § 1003.2(c)(1).         In its decision

not to reopen his case, the BIA specifically found that Mustafa had

not adduced evidence likely to demonstrate that the Albanian


     1
      This assumes arguendo that Mustafa is being persecuted by
Belini because he is a member of Demiraj’s family and that
Demiraj’s family is a cognizable social group.

                                    4
authorities would not or could not protect him from Belini.                 This

conclusion was not arbitrary.          The material submitted by Mustafa

does not establish who Belini is or give any reason to suppose that

he is operating with impunity outside Albanian law.               Though the

various documents describe a troubling pattern of human rights

abuses and systemic corruption in Albania, this does not establish

that a man named Bill Belini is free to shoot Mustafa on the basis

of a vendetta he has against the latter’s cousin, Edmund Demiraj.

In failing to furnish any credible evidence that Belini operates

outside the law with the acquiescence of the Albanian government,

Mustafa has failed to make out a prima facie case for asylum.                 It

is well-settled that a deficiency in this respect is a proper basis

for denying a motion to reopen.2                Doherty, 112 S. Ct. at 725

(citing Abudu, supra); Pritchett v. INS, 993 F.2d 80, 83 (5th Cir.

1993).

     Mustafa did not brief the withholding of removal issue under

either 8 U.S.C. § 1231(b)(3) or the CAT, and such claims are

accordingly waived.       Rodriguez v. INS, 9 F.3d 408, 414 n. 15 (5th

Cir. 1993).    In any case, the standard for withholding of removal

under    8   U.S.C.   §   1231(b)(3)       is   a   “clear   probability”    of



     2
      The Attorney General in fact retains the authority under
the immigration regulations to deny a motion to reopen even when
the petitioner has set forth a prima facie case. 8 C.F.R. §
1003.2(a). It follows a fortiori that the Attorney General is
also free to deny a motion when the petitioner has failed to make
even this basic showing.

                                       5
persecution, which is a more demanding evidentiary standard than

that applied to an asylum petition.   Efe v. Ashcroft, 293 F.3d 899,

906 (5th Cir. 2002).    This standard also applies to the CAT.    8

C.F.R. § 1208.16(c).   The failure of Mustafa’s asylum petition is,

therefore, fatal to his claims for withholding of removal under

either 8 U.S.C. § 1231(b)(3) or the CAT.

     The decision of the BIA is

                             AFFIRMED.




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