                                                                NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                      No. 11-1973
                                     _____________

                        FLORIN HAXHARI, a/k/a Daniele Hessi;
                         LUCE HAXHARI, a/k/a Elena Inzachi,
                                              Petitioners

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                        Respondent
                             _____________

                     On Petition for Review of a Decision and Order of
                             the Board of Immigration Appeals
                                  (BIA No. A098-586-577)

                               Submitted January 24, 2012

           Before: AMBRO, CHAGARES, and HARDIMAN, Circuit Judges.

                                 (Filed: January 27, 2012)
                                      ____________

                                        OPINION
                                      ____________

CHAGARES, Circuit Judge.

       Florin Haxhari and his wife, Luce Haxhari, petition for review of the decision

entered by the Board of Immigration Appeals (“BIA”), vacating the Immigration Judge‟s

grant of Haxhari‟s application for asylum. For the reasons set forth the below, we will

deny the petition.
                                              I.

       We write for the parties‟ benefit and recite only the facts essential to our

disposition. Florin Haxhari (“Haxhari”) was born in Juban-Shkoder, Albania in 1980.

Appendix (“App.”) 513.1 He married Luce Haxhari on September 5, 2003 in Albania.

App. 514. Haxhari joined the Democratic Party in July 1998. App. 146. In September

1998, Haxhari was arrested by the police when he returned from the funeral of a

Democratic Party leader. App. 144-45. He was held for five or six hours, interrogated,

punched, had his hair pulled, and was called a “dunce of the Democratic Party.” App.

145-46. In December 1999, after participating in a protest in Gurizi, Haxhari was

arrested, held overnight and beaten. App. 147-48. In October 2000, Haxhari was

assaulted by unknown individuals for ten minutes and was told “you better withdraw

your efforts from the Democratic Party or you will end up dead.” App. 149. Haxhari did

not seek medical treatment after the beating. App. 149-50. He also did not report the

incident to the police, because he felt he could not seek their protection after they arrested

him only a year before. App. 150. On June 17, 2003, Haxhari was arrested because he

was involved in a debate with members of the Socialist Party the previous day. App.

152. He was detained for three hours and questioned about his political beliefs. App.

153.


1
  The REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 302, contained provisions
regarding credibility determinations. However, because Haxhari filed his asylum
application before May 11, 2005, those provisions do not apply in this case. Lin v.
Gonzales, 503 F.3d 4, 7 (1st Cir. 2007). The BIA noted that the Immigration Judge did
not make explicit credibility findings, but the BIA also noted that Haxhari‟s credibility
was not in dispute. App. 2.
                                              2
       On October 12, 2003, while serving as an election monitor, Haxhari pointed out

violations by a member of the local election committee who was a member of the

Socialist Party. App. 155. On his way home that day, he was beaten by masked men

who threatened his life. App. 158. He reported the incident to the police, but they were

unable to pursue a case because Haxhari could not identify the masked perpetrators.

App. 158. In April 2004, two masked men entered Haxhari‟s shop, beat him for 20 to 30

minutes, until they “almost left me dead on the floor” and warned him that there would

be “no more warnings for you. This is it, and you will die. You will die soon.” App.

159-60. Haxhari did seek medical attention after this incident and received penicillin and

valium to treat his wounds and infection. App. 160. Haxhari left the clinic against

medical advice to stay for observation because he feared for his life. App. 161. He left

Albania on May 21, 2004. App. 161. Haxhari and his wife entered the United States on

May 26, 2004 using fraudulent passports. App. 501, 621, 644. The Democratic Party

returned to power through a coalition in Albania in 2005 but Haxhari testified that he

believed that “the mafia group and the secret service police, and the secrets [sic] service,

the informative state services continue to actively work for the Socialist Party.” App.

162.

       Haxhari also proffered expert testimony by Dr. Bernd J. Fischer. Fischer testified

that people in Albania rarely go to the police because of distrust and fear. App. 217. He

testified that he was unsure whether the “Democratic Party has the ability to protect

people at the lower levels.” App. 216. Fischer testified that “police at the lower levels

are still dominated by people who were appointed during the Socialist period.” App. 214.

                                              3
Fischer testified that a member of the Democratic Party who was assaulted by a member

of the Socialist Party could pursue criminal action but he stated, “I‟m not certain they

would get very far, again, because of the fact that the judiciary as well as the police are

highly politicized and highly corrupt.” App. 216. Fischer admitted he did not have any

specific information about the Shkoder police department, App. 233, and that he had

previously stated that “[c]ard carrying members of the Democratic Party are not at risk of

ill treatment.” App. 218.

       On August 18, 2008, the Immigration Judge granted asylum to Haxhari and

derivatively to his wife. App. 101-02. The Immigration Judge declined to analyze

Haxhari‟s application for withholding of removal.2 App. 101. The Immigration Judge

also declined to make a specific finding on whether Haxhari had established past

persecution, App. 88, which would have given rise to a rebuttable presumption of a well-

founded fear of future persecution. Toure v. Att‟y Gen., 443 F.3d 310, 316 (3d Cir.

2006). The Immigration Judge relied on Haxhari and Fischer‟s testimony as well as the

State Department Country Reports on Human Rights in Albania to conclude that

Haxhari‟s fear of persecution by the police because of his membership in the Democratic

Party was reasonable and well-founded. App. 99-100.



2
 Haxhari set forth the standard for granting withholding of removal in his brief, but
presents no argument in support of the claim. Haxhari Br. 7. Thus, he has waived the
claim on appeal. See Lie v. Ashcroft, 396 F.3d 530, 532 n.1 (3d Cir. 2005). Further,
because “the threshold for asylum is lower than for protection under the withholding of
removal . . . provisions,” Yu v. Att‟y Gen., 513 F.3d 346, 349 (3d Cir. 2008), and because
we reject Haxhari‟s asylum claim, we necessarily would reject his claim for withholding
of removal, were it not waived.
                                              4
       The BIA held the facts as found by the Immigration Judge did not rise to the level

of persecution. App. 3. The Board vacated the Immigration Judge‟s grant of asylum,

finding that Haxhari‟s fear of future persecution was not objectively reasonable and

therefore he had not established eligibility for asylum. App. 3.

                                             II.

       We have jurisdiction to review the BIA‟s final removal orders. 8 U.S.C. §

1252(a)(1); Huang v. Att‟y Gen., 620 F.3d 372, 379 (3d Cir. 2010). “The BIA‟s ruling

on an asylum petition is „conclusive unless manifestly contrary to the law and an abuse of

discretion.‟” Huang, 620 F.3d at 379 (quoting 8 U.S.C. § 1252(b)(4)(D)). “We review

the facts upon which the BIA‟s decision rests to ensure that they are supported by

substantial evidence from the record considered as a whole, Espinosa-Cortez v. Att‟y

Gen., 607 F.3d 101, 106 (3d Cir. 2010), and we will reverse based on a factual error only

if any reasonable fact-finder would be „compelled to conclude otherwise.‟” Id. (quoting

8 U.S.C. § 1252(b)(4)(B)). This Court has held that both “„persecution,‟ and „well-

founded fear of persecution‟ are . . . findings of fact that we review under the deferential

substantial evidence standard articulated in INS v. Elias-Zacarias, 502 U.S. 478 (1992).”

Abdille v. Ashcroft, 242 F.3d 477, 483 (3d Cir. 2001).

                                             III.

       To establish eligibility for asylum, Haxhari must prove that he is a refugee. “A

refugee is „any person who is outside any country of such person‟s nationality . . . and

who is unable or unwilling to return to, and is unable or unwilling to avail himself or

herself of the protection of, that country because of persecution or a well-founded fear of

                                              5
persecution on account of race, religion, nationality, membership in a particular social

group, or political opinion.‟” Toure, 443 F.3d at 316 (quoting 8 U.S.C. §

1101(a)(42)(A)). “An asylum applicant must demonstrate either past persecution or a

well-founded fear of future persecution.” Voci v. Gonzales, 409 F.3d 607, 613 (3d Cir.

2005). Persecution includes “threats to life, confinement, torture, and economic

restrictions so severe that they constitute a threat to life or freedom.” Fatin v. I.N.S., 12

F.3d 1233, 1240 (3d Cir. 1993).

       Substantial evidence supports the BIA‟s conclusion that Haxhari has failed to

show past persecution. The brief detentions Haxhari testified to do not rise to the level of

past persecution. This Court has held that “isolated incidents that do not result in serious

injury do not rise to the level of persecution.” Voci, 409 F.3d at 614-15 (finding

persecution where petitioner alleged “multiple beatings, seven of which he characterized

as severe, and at least one of which resulted in a broken knee and an extended hospital

stay” as well as threats and intimidation of himself and his family); see also Jarbough v.

Att‟y Gen., 483 F.3d 184, 191 (3d Cir. 2007) (finding no persecution when petitioner

alleged two police detentions, the first lasting four hours and including punches and

threats of use of wires and electrical cables, and the second lasting two days where

officers “cursed, threatened, kicked, shoved, and pushed him” but after which petitioner

did not seek medical attention). Further, the BIA correctly found that Haxhari failed to

prove the Albanian government was unwilling or unable to control the private citizens

who mistreated him. Wong v. Att‟y Gen., 539 F.3d 225, 233 (3d Cir. 2008).



                                               6
       Substantial evidence also supports the BIA‟s conclusion that Haxhari failed to

prove fear of future persecution. To establish a well-founded fear of persecution,

Haxhari must show an “individualized risk of persecution or that there is a „pattern or

practice‟ of persecution” of similarly situated individuals. Lie v. Ashcroft, 396 F.3d 530,

537 (3d Cir. 2005). The Democratic Party came to power in Albania after Haxhari left

and the BIA found that the State Department Country Reports do not mention the type of

mistreatment Haxhari experienced. In light of the changes in country conditions, the BIA

correctly found the testimony of Haxhari‟s expert insufficient to establish an objective

basis for a well-founded fear of persecution because Haxhari failed to demonstrate that he

would be targeted individually or that there is a pattern or practice of targeting

Democratic Party members. See Ambartsoumian v. Ashcroft, 388 F.3d 85, 89 (3d Cir.

2004) (holding reliance on State Department Reports is “justifiable” as “substantial

evidence” in immigration decisions); see also Cuko v. Mukasey, 522 F.3d 32, 40 (1st Cir.

2008) (relying on State Department Country Reports to find that Albanian Democratic

Party member did not prove a well-founded fear of future persecution).

       Finally, Haxhari contends that the BIA engaged in improper fact-finding.

However, whether the facts as found by the Immigration Judge rise to the level of past

persecution and the reasonableness of Haxhari‟s fear of future persecution are mixed

questions of law and fact that the BIA properly reviewed de novo. See Huang, 620 F.3d

at 384-85.3


3
 Haxhari also contends that he should be granted asylum for humanitarian reasons and
that he faces future persecution because he did not appear for his military service.
                                              7
                                           IV.

      For the foregoing reasons, we will deny the petition for review.




Because he did not raise these claims in his administrative proceedings, they are
unexhausted and we need not address them. 8 U.S.C. § 1252(d)(1).
                                            8
