                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0224n.06

                                            No. 09-4008

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                    FILED
GENTIAN ASHAFI,                                   )
                                                                                 Apr 12, 2011
                                                                           LEONARD GREEN, Clerk
                                                  )
       Petitioner,                                )
                                                  )    ON APPEAL FROM THE UNITED
v.                                                )    STATES BOARD OF IMMIGRATION
                                                  )    APPEALS
ERIC H. HOLDER, JR., Attorney General,            )
                                                  )
       Respondent.                                )




       Before: SUHRHEINRICH, COLE, and COOK, Circuit Judges.


       COOK, Circuit Judge. Gentian Ashafi challenges an order of the Board of Immigration

Appeals (BIA) denying both his motion to remand and his application for asylum and withholding

of removal. We deny his petition.


                                                  I.


       Ashafi is an Albanian native and citizen and a member of Albania’s Democratic Party.

Throughout his young adulthood, Ashafi’s political affiliation prompted Albanian Socialist authorities

to beat and threaten him. Seeking to avoid further persecution, both Ashafi and his brother, Armand,

obtained phony passports and traveled to the United States. When immigration officials apprehended
No. 09-4008
Ashafi v. Holder


Ashafi, he conceded removability and applied for asylum, withholding of removal, and protection

under the Convention Against Torture.


       An Immigration Judge (IJ) held a hearing on the merits of Ashafi’s application. The

government argued that, even if Ashafi had faced persecution in the past, recent changes in Albania’s

political landscape left him with nothing to fear. It produced reports reflecting that Ashafi’s own

political party has enjoyed power since 2005, and that the political parties no longer engage in

persecution. Ashafi countered that, regardless of these changes, he still fears persecution because

Socialists continue to control many of the local governments and have persistently harassed his

family. Dr. Fischer, an expert, bolstered Ashafi’s testimony with his own, opining that Ashafi may

still face persecution should he return to Albania.


       Following the hearing, the IJ denied Ashafi’s application. Though the IJ assumed for the sake

of argument that Ashafi experienced persecution in the past, she agreed with the government that

changes in Albania negated any well-founded fear of future persecution.


       While Ashafi’s appeal of this denial pended before the BIA, an IJ in Chicago granted asylum

to Ashafi’s brother. The apparent disparity between these decisions spurred Ashafi to move for

remand of his case. The BIA denied the motion to remand and affirmed the IJ’s decision.




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                                                 II.


       Ashafi argues that the BIA improperly denied (a) his application for asylum and

withholding of removal and (b) his motion to remand.


                                                 A.


       Ashafi first challenges the denial of his application for asylum and withholding of removal.

Because the BIA adopted and affirmed the IJ’s decision, we examine the IJ’s decision directly while

considering any comments made by the BIA. Gilaj v. Gonzales, 408 F.3d 275, 282–83 (6th Cir.

2005) (per curiam). In reviewing the IJ’s factual findings, we ask whether substantial evidence

supports them. Marku v. Ashcroft, 380 F.3d 982, 986 (6th Cir. 2004). We thus uphold these findings

as long as they are “supported by reasonable, substantial, and probative evidence on the record

considered as a whole,” and reverse only if “the evidence not only supports a contrary conclusion,

but compels it.” Id. (internal quotation marks and citation omitted).


       The IJ assumed that Ashafi suffered past persecution on the basis of his political opinion,

entitling him to a presumption that he possessed a well-founded fear of future persecution meriting

asylum. See 8 C.F.R. § 1208.13(b)(1). But the government may rebut this presumption by showing,

by a preponderance of the evidence, that there “has been a fundamental change in circumstances” in

Ashafi’s country that eliminates the need for his fear. Id. § 1208.13(b)(1)(i)(A).




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       Substantial evidence supports the IJ’s determination that the government made that showing

here. In finding Ashafi’s presumption of fear rebutted, the IJ explained that Ashafi’s own political

party has maintained power since 2005, and that the U.S. State Department Country Reports on

Albania suggest that, although “serious political oppression existed in the past,” “no outbreaks of

political violence [have occurred] since 1998.” This finding aligns with a laundry list of decisions

by this court recognizing that changed political circumstances prevent once-persecuted Albanians

from now seeking asylum. See, e.g., Preducaj v. Holder, 379 F. App’x 508, 511 (6th Cir. 2010);

Trifoni v. Holder, 351 F. App’x 19, 23 (6th Cir. 2009); Maklaj v. Mukasey, 306 F. App’x 262, 264

(6th Cir. 2009).


       Resisting this conclusion, Ashafi argues that while the political situation in Albania has

improved, his personal fear of persecution has not. He notes that the IJ must determine whether he

“still faces an individualized threat of future persecution, notwithstanding the changed country

conditions described in the Country Reports.” See Mapouya v. Gonzales, 487 F.3d 396, 412 (6th

Cir. 2007). And he claims that the IJ neglected both his family’s continued troubles with Albanian

authorities and Dr. Fischer’s testimony that he would still face danger from local Socialist sects. The

IJ, Ashafi contends, should have weighed the “general information” in the Country Reports against

“the specific evidence provided by [the] Petitioner.”


       But the IJ did precisely that. Her opinion addressed Dr. Fischer’s testimony and the alleged

harassment of Ashafi’s family, concluding that Ashafi provided only reasons to fear “civil unrest and


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general country conditions”—not “persecution.” See Akhtar v. Gonzales, 406 F.3d 399, 405 (6th Cir.

2005). Moreover, the IJ observed that Ashafi suffered no persecution between 1992 and 1997—the

last time his party was in power—and noted that Albania’s current situation closely tracks that earlier

period.


          The IJ thus reasonably determined that, as Albanian political tensions subsided, so did

Ashafi’s well-founded fear of persecution. Because nothing in the record compels a contrary

conclusion, see Marku, 380 F.3d at 986, Ashafi is ineligible for asylum. Further, Ashafi’s “failure

to meet the requirements for asylum means that [he] is also ineligible for withholding of removal.”

See Preducaj, 379 F. App’x at 511–12.


                                                  B.


          Ashafi next challenges the BIA’s denial of his motion to remand. The BIA “ordinarily will

not consider a discretionary grant of a motion to remand unless the moving party meets a ‘heavy

burden’ and presents evidence . . . [that] would likely change the result in the case.” Matter of

Coelho, 20 I. & N. Dec. 464, 473 (BIA 1992). We review a denial of a motion to remand for abuse

of discretion, asking whether it “was made without a rational explanation, inexplicably departed

from established policies, or rested on an impermissible basis such as invidious discrimination.”

Sarr v. Gonzales, 485 F.3d 354, 363 (6th Cir. 2007) (internal quotation marks and citation omitted).




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       Ashafi argues that his case warrants remand because, while his BIA appeal was pending, a

Chicago IJ granted asylum to his brother. Though Ashafi claims he cannot access his brother’s

hearing records, he notes that both he and his brother experienced similar harms while in Albania,

and each corroborated the other’s testimony during their respective asylum proceedings. Citing

Zhang v. Gonzales, 452 F.3d 167 (2d Cir. 2006), Ashafi contends that “[t]he fact that both brothers

were in substantially the same position makes it reasonable to believe that their asylum claims should

have led to the same outcome,” and thus asks for a second look on remand.


       But the BIA did not view Ashafi and his brother as necessarily sharing the same destiny. It

noted that nothing entitles Ashafi to benefit derivatively from his sibling’s asylum application, see

8 U.S.C. § 1158(b)(3)(A), and that an IJ’s “factual findings and legal analysis are based on the

totality of the record evidence specific to the instant case, and cases that may appear similar can

differ in many ways.” Because an asylum determination entails an individualized assessment, and

Ashafi provided no legal authority mandating that an IJ “adopt the factual findings and legal

conclusions of an [IJ] in another jurisdiction,” the BIA concluded that Ashafi failed to meet his

“heavy burden” of demonstrating that his brother’s grant would entitle him to a different result on

remand.


       While the differing outcomes of these cases understandably frustrate Ashafi, his arguments

fail to clear the high abuse-of-discretion hurdle. In Zhang, the sole case on which he relies, the

Second Circuit found that the BIA abused its discretion because it provided no explanation for


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denying a similar motion to remand. 452 F.3d at 174. Here, however, the BIA rationally explained

its decision: Ashafi and his brother received individualized hearings from different IJs in different

jurisdictions against different government parties, and Ashafi presented no evidence that would

compel a new result for him on remand. Because Ashafi otherwise fails to offer any “established

policies” from which the BIA’s decision departed or any “impermissible” basis on which it rested,

we have no grounds on which to discern an abuse of discretion. See Sarr, 485 F.3d at 363.


                                                III.


       For these reasons, we deny Ashafi’s petition.




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