                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 08a0107n.06
                             Filed: February 20, 2008

                                         No. 06-3951


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

PAL GOJANI,

          Petitioner,

v.                                                 ON REVIEW FROM THE BOARD OF
                                                   IMMIGRATION APPEALS
MICHAEL B. MUKASEY, ATTORNEY
GENERAL,

          Respondent.

                                             /



BEFORE:          MOORE, CLAY, and ROGERS, Circuit Judges.

          CLAY, Circuit Judge. Petitioner Pal Gojani seeks review of the Board of Immigration

Appeals’ June 19, 2006 decision upholding the immigration judge’s denial of his application for

asylum pursuant to 8 U.S.C. § 1158(a), withholding of removal pursuant to § 241(b)(3) of the

Immigration and Nationality Act (“INA”), 8 U.S.C. § 1231(b)(3), and withholding of removal under

the Convention Against Torture. For the reasons stated below, we DENY Gojani’s petition for

review.

                                       BACKGROUND

A.        Substantive Facts
                                            No. 06-3951

       Pal Gojani is an ethnic Albanian who is a native and citizen of Kosovo. The following facts

are taken from Gojani’s testimony during his asylum hearing and in his asylum application. Both

Gojani and his father suffered persecution by Serbs during his youth. His father was detained and

beaten by Serbian authorities due to false charges of firearms possession. Gojani himself was

expelled from a teacher training school for reading books advocating the unification of Kosovo with

Albania. As a result of this incident, Gojani was detained for interrogation by Serbian authorities.

During his detention he was beaten so severely that his arm was broken, and he was released upon

the condition that he report for future interrogations. After this detention, Serbian police monitored

Gojani’s activities and would sometimes follow him.

       In 1981 when people began demonstrating in favor of the independence of Kosovo, Gojani

was subjected to repeated interrogations by the Serbian police. The police tried to force Gojani to

be an informer for the Yugoslav secret service. However, Gujani convinced them that he would not

be useful since he was a Catholic whereas most Albanians are Muslim, a fact that would hinder his

access to those in the secessionist movement.

       In 1989 Gojani became a member of the Kosovo Democratic League (“LDK”), a political

party that advocated peaceful measures for freeing Kosovo from Slobodan Milosevic’s regime. In

1998, when ethnic cleansing started in Kosovo, Kosovo Liberation Army (“KLA”) members tried

to recruit Gojani. Gojani refused to be recruited because of his religious beliefs. During this

exchange, KLA members used religious slurs and told Gojani to leave his village or else he would

be considered a traitor. Many fundamentalist Muslims joined the KLA during the war and claimed

that they would get rid of Albanian Catholics after they got rid of the Serbs.


                                                  2
                                           No. 06-3951

       On June 13, 1999, Gojani’s cousin and his wife disappeared and were later found dead. On

July 21, 1999, the KLA returned to Gojani’s house and asked for him. Gojani hid while his sister-in-

law told the KLA members that Gojani had left for Albania. Gojani feared that the KLA would kill

him if they found him, and he stayed in hiding for a month until NATO forces gained control of the

area. Even after the arrival of NATO forces hundreds of Catholics were accused of espionage and

executed by KLA members.

       After the end of the war, Gojani and his brother opened a cafe. Shortly after the cafe opened,

two men came to the cafe and threatened Gojani because of his political allegiance. Within a week

of this incident, the cafe was burnt down, and a note was left for Gojani stating: “we are going to

bake you like a sheep.” As a result, Gojani fled Kosovo and traveled through Albania to Canada,

and finally entered the United States illegally on January 13, 2003. Shortly after his entry, he was

arrested by border patrol agents.

B.     Procedural Facts

       Gojani applied for asylum, withholding of removal pursuant to 8 U.S.C. § 1231(b)(3), and

withholding of removal pursuant to the Convention Against Torture on January 7, 2004. At a

November 10, 2004 hearing before an immigration judge, Gojani testified to his experiences in

Kosovo and his fear of return. To support his claims, Gojani presented affidavits from family and

neighbors in Kosovo relating threats made to Gojani, Gojani’s time in hiding, the burning of

Gojani’s cafe and fears for Gojani’s safety. He also presented an official listing of the names of

those who had disappeared during the war and claimed that two names on the list were those of his

cousin and his wife. Gojani presented evidence of difficult conditions for Christians in Kosovo,


                                                 3
                                             No. 06-3951

mainly focusing on Serbian Orthodox Christians but with some references to Catholics. The

government introduced evidence of human rights conditions in Kosovo in the form of United States

State Department country reports.

       The immigration judge issued a written opinion on November 12, 2004 denying Gojani relief

and ordering him removed from the United States to Serbia-Montenegro.1 The immigration judge

found Gojani’s “factual presentation to be generalized and non-specific.” (J.A. 18.) In addition, the

immigration judge found that Gojani’s “testimony regarding his subjective fear lacked clarity and

definition.” (J.A. 18.) The immigration judge focused on Gojani’s failure to make distinctions

between the KLA and Islamic fundamentalists. He concluded that Gojani was unable to prove that

the KLA, Serbian police or Islamic fundamentalists were the cause of the alleged persecution.

       The immigration judge found that even if Gojani had established past persecution, the

country reports submitted by the government demonstrated changed country conditions which would

rebut any presumption of a well-founded fear of future persecution. In support of this conclusion,

the immigration judge cited the portions of the 2003 State Department report that indicated that the

LDK was the largest political party in Kosovo, that Albanians are politically in control of Kosovo,

and that peaceful elections had been held.




       1
         At the time of Gojani’s hearing, Kosovo was located within Serbia and Montenegro. Serbia
and Montenegro existed as a loose federation from 2003 to 2006. Montenegro formally declared its
independence from Serbia on June 3, 2006.                       CIA World Factbook 2008,
https://www.cia.gov/library/publications/the-world-factbook/geos/rb.html. Kosovo declared its
independence from Serbia on February 17, 2008. Dan Bilefsky, Kosovo Declares Its Independence
from Serbia, N.Y. Times, Feb. 18, 2008.

                                                 4
                                           No. 06-3951

       On June 19, 2006, in a one paragraph order, the Board of Immigration Appeals (“BIA”)

summarily adopted and affirmed the immigration judge’s decision. Gojani’s brief to the BIA

claimed that the immigration judge erred by rejecting Gojani’s claim of a well-founded fear of

persecution despite Gojani’s evidence that established a probability of future persecution based on

his political beliefs. The BIA’s summary affirmance stated in relevant part:

       We adopt and affirm the decision of the Immigration Judge who found that even had
       the respondent been credible and had he established past persecution, which we do
       not concede, there have been material and substantial changed country conditions
       sufficient to rebut the respondent’s presumption of a well-founded fear of
       persecution.

(J.A. 4.) Gojani also sought remand to the immigration judge because the testimony given at the

hearing was recorded at times as “indiscernable” on the transcript. The BIA added, in response to

this argument, that the transcript was “completely understandable and not so defective as to require

a remand.” (J.A. 4.)

                                          DISCUSSION

A.     Standard of Review

       When the BIA summarily affirms the immigration judge’s decision by adopting the decision

as its own, we review the immigration judge’s decision as the final agency decision. Gilaj v.

Gonzales, 408 F.3d 275, 282-83 (6th Cir. 2005). Findings of fact contained in final agency decisions

are reviewed under the “substantial evidence” standard. Mullai v. Ashcroft, 385 F.3d 635, 638 (6th

Cir. 2004). Under this standard we may only overturn an agency decision when it is not “supported

by reasonable, substantial and probative evidence on the record considered as a whole.” Id. In order

for us “to reverse the BIA’s factual determinations, this Court must find that the evidence not only


                                                 5
                                            No. 06-3951

supports a contrary conclusion, but indeed compels it.” Dorosh v. Ashcroft, 398 F.3d 379, 381 (6th

Cir. 2004) (internal quotation marks omitted) (quoting Klawitter v. INS, 970 F.2d 149, 152 (6th Cir.

1992)).

B.        Analysis

          1.     Asylum Claim

          As an asylum applicant, Gojani bears the burden of establishing that he is a “refugee” who

is eligible for asylum. 8 U.S.C. § 1158(b)(1). A refugee is an alien who is unable or unwilling to

return to his country “because of persecution or a well-founded fear of persecution on account of

race, religion, nationality, membership in a particular social group, or political opinion.” INS v.

Elias-Zacarias, 502 U.S. 478, 481 (1992) (quoting 8 U.S.C. § 1101(a)(42)(A)). A showing of past

persecution creates a rebuttable presumption of a well-founded fear of future persecution. 8 C.F.R.

§ 208.13(b)(1). The government may rebut this presumption by establishing by a preponderance of

the evidence that there is “a fundamental change in circumstances such that the applicant no longer

has a well-founded fear of persecution in his country of nationality.” 8 C.F.R. § 208.13(b)(1)(i)(A).

“[A]n asylum applicant can also prove a well-founded fear of future persecution by showing that he

genuinely (subjectively) fears he will be persecuted based on a protected ground if returned to his

native country, and that his fears are objectively reasonable.” Elias v. Gonzales, 490 F.3d 444, 449

(6th Cir. 2007).

          Gojani argues that he offered credible testimony and corroborating evidence regarding his

past persecution and well-founded fear of future persecution. Because both the BIA and the

immigration judge concluded that Gojani had not established a well-founded fear of persecution even


                                                  6
                                           No. 06-3951

assuming he had given credible testimony, Gojani’s arguments regarding the immigration judge’s

negative credibility determination need not be addressed.

       Gojani further argues that he has shown that he has a subjective fear of persecution that is

objectively reasonable. In support of this claim, Gojani cites his testimony regarding past

persecution due to his political opinion2 at the hands of Serbian police, the KLA, and Islamic

fundamentalists. However, the immigration judge found that Gojani did not have a well-founded

fear of persecution due to changed conditions in Kosovo. The immigration judge relied principally

on the State Department's Country Reports regarding the human rights situation in Kosovo. The

2003 State Department report notes that Serbian forces have withdrawn from Kosovo and that the

current president of Kosovo is an Albanian from Gojani's political party. The immigration judge also

highlighted parts of the report that discuss Kosovo's multi-party system, the peaceful occurrence of

2002 municipal elections, and the prominence and broad support of LDK in Kosovo. From this

information, the immigration judge concluded that Gojani was unlikely to be persecuted as a result

of his political opinion. Since Gojani’s evidence regarding persecution of LDK members pre-dated

the 2003 State Department report, there is no evidence on the record that contradicts the immigration

judge’s finding of changed country conditions. Thus, the immigration judge’s finding that Gojani

did not have a well-founded fear of persecution is supported by substantial evidence and cannot be

reversed by this Court.

       2.      Convention Against Torture Claim


       2
         Although at his asylum hearing Gojani claimed that he had suffered persecution based on
his religion, he did not pursue this basis for asylum on appeal to the BIA and makes no argument
regarding this claim to this Court.

                                                 7
                                            No. 06-3951

        In order to qualify for relief under the Convention Against Torture, an applicant must

“establish that it is more likely than not that he or she would be tortured if removed to the proposed

country of removal.” 8 C.F.R. § 208.16(c)(2). An immigration judge “must consider the possibility

of future torture, including any evidence of past torture inflicted upon the applicant and evidence that

the applicant is not likely to be tortured in another area of the country of removal.” Ali v. Reno, 237

F.3d 591, 596-97 (6th Cir. 2001). In concluding that Gojani was ineligible for Convention Against

Torture relief, the immigration judge relied upon the changed conditions in Kosovo upon which he

based his asylum determination. As discussed above in the context of Gojani’s asylum claim, the

immigration judge’s determination that changed conditions in Kosovo rendered unlikely the

possibility that Gojani would be tortured is supported by substantial evidence.

        3.      INA Withholding of Removal Claim

        In order to be granted withholding of removal pursuant to the INA, an applicant must prove

“that his or her life or freedom would be threatened in the proposed country of removal on account

of race, religion, nationality, membership in a particular social group, or political opinion.” 8 C.F.R.

§ 208.16(b). An applicant for withholding of removal “must establish that there is a clear probability

that he will be subject to persecution if forced to return to the country of removal.” Pilica v.

Ashcroft, 388 F.3d 941, 951 (6th Cir. 2004) (citing INS v. Stevic, 467 U.S. 407, 413 (1984)). This

burden is greater than the burden required to establish eligibility for asylum. Singh v. Ashcroft, 398

F.3d 396, 401 (6th Cir. 2005). Because Gojani was unable to establish that he was eligible for

asylum, the immigration judge’s denial of withholding of removal under the INA is supported by

substantial evidence.


                                                   8
                                          No. 06-3951

                                        CONCLUSION

       Inasmuch as the immigration judge’s denial of Gojani’s application for asylum, relief under

the Convention Against Torture, and withholding of removal under the INA was supported by

substantial evidence we DENY Gojani’s petition for review.




                                                9
