                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 07a0191n.06
                            Filed: March 12, 2007

                                           No. 05-4633

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


TONIN SHKRELI,                                           )
                                                         )        ON PETITION FOR REVIEW
       Petitioner,                                       )        OF AN ORDER OF THE
                                                         )        BOARD OF IMMIGRATION
v.                                                       )        APPEALS
                                                         )
ALBERTO R. GONZALES, Attorney General,                   )                          OPINION
                                                         )
       Respondent.                                       )
                                                         )




BEFORE:        COLE, CLAY, and GILMAN, Circuit Judges.

       R. GUY COLE, JR., Circuit Judge. Tonin Shkreli petitions this Court for review of a final

order of the Board of Immigration Appeals (“BIA”), affirming an Immigration Judge’s (“IJ’s”)

decision to deny Shkreli’s application for asylum, withholding of removal, and protection under the

United Nations Convention Against Torture (“CAT”). For the reasons set forth below, we DENY

Shkreli’s petition for review.

                                      I. BACKGROUND

       Tonin Shkreli is a native and citizen of Albania, who entered the United States on October

11, 2000 at Brownsville, Texas.

       Shkreli was born in 1980 in the small village of Bzhete, located in northern Albania. Shkreli

seeks asylum on the grounds that his family has endured fifty years of persecution in Albania owing
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to their anti-communist activism and, more recently, their involvement with Albania’s Democratic

Party, which rivals the country’s Socialist Party. Less centrally, Shkreli also asserts that his family

has been persecuted in connection with the practice of their Catholic faith. All four of Shkreli’s

siblings now reside in the United States, and his sister, Albana Dokaj, has been granted asylum here.

Shkreli’s parents remain in Albania.

        According to Shkreli’s asylum application, his family’s history of opposing Albania’s

communist dictatorship began with his grandfather and great uncle. Both were imprisoned and

tortured for their political activities, and Shkreli’s great uncle was tortured to death in jail. Shkreli’s

father continued the legacy of anti-communist advocacy, and suffered persecution as a result,

including a five-year incarceration at a prison labor camp where he was regularly beaten. This

detention prevented Shkreli’s father from meeting one of his daughters, Shkreli’s sister, until she was

almost six years old. Shkreli’s brothers and sisters also participated in Albania’s pro-democracy

movement and worked on behalf of Albania’s Democratic Party in the wake of communism’s

collapse. Shkreli’s father and sister Albana were detained and beaten in connection with their

participation in a demonstration following the 1997 electoral victory of the Socialist Party.

        Shkreli accompanied Albana to political events that she attended, but due to a cognitive

disability, he has never been a political activist. Shkreli’s disability was brought about by an illness

he suffered as a baby, apparently in connection with an immunization that was administered to him.

His parents sought medical assistance, but were turned away, allegedly as retaliation for their anti-

communist sympathies. Ismail Sendi, a U.S. physician who examined Shkreli, opined in an unsworn

letter to the IJ that Shkreli falls within the “moderate range of Mental Retardation” due to a “post

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encephalitic condition, an illness he may have experienced during the first three years of

development.”

        When he reached school age, Shkreli’s father tried to get him admitted to a school that

handles special-needs children, but Shkreli was rejected because his father was considered an

“enem[y] of [the] government.” His father then enrolled Shkreli in the regular school, but Shkreli

left after just four years because the teachers professed their inability to educate him.

        The IJ held a merits hearing on Shkreli’s asylum application on August 30, 2004. Shkreli

called only one witness to testify on his behalf, his sister Albana.

        Albana confirmed the history of political persecution that her family had suffered in Albania

due to their political activities. She also testified about her parents’ inability to obtain medical

treatment for Shkreli when he fell ill as a baby and her father’s unsuccessful efforts to enroll Shkreli

in a special-needs school. Albana testified that admittance to such schools required the assistance

of the government and given her family’s anti-communist background, they were precluded from

receiving such help.

        Albana also elaborated upon a December 1998 episode, described by Shkreli in his asylum

application, that prompted Shkreli’s father to send Shkreli and Albana out of Bzhete for their safety.

Albana testified that she and Shkreli were driving home from church one evening when they were

stopped by five individuals. One of the five was a man named Ramadan, an “investigator,”

according to Albana, who spied on the villagers of Bzhete and reported on their activities. The group

beat Albana and Shkreli and pushed Shkreli onto the ground, dislocating his arm. They warned

Albana and Shkreli to quit speaking out on behalf of democracy and the Catholic Church. Then they

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stole the car, forcing Albana and Shkreli to walk the rest of the way home. The entire encounter

lasted ten to twenty minutes.

       After the attack, Shkreli’s father complained to the Democratic Party and the Catholic Church

and the family began receiving death threats as well as kidnapping threats directed at Shkreli’s

younger sister, Liza. A few weeks later, at the end of December, Shkreli’s father took Albana and

Shkreli to live with their aunt in Lezhe City, about a two-hour drive from Bzhete. Shkreli remained

there until he left for the United States in October 2000.

       The IJ denied Shkreli’s application for asylum, withholding of removal, and protection under

the CAT in an oral decision announced on August 30, 2004. The BIA affirmed in a summary

opinion on November 29, 2005. Shkreli timely appealed.

                                        II. DISCUSSION

A.     Standard of Review

       Where the BIA adopts the IJ’s reasoning in a summary disposition, we review the IJ’s

decision to determine if the BIA’s affirmance should be upheld. Denko v. INS, 351 F.3d 717, 723

(6th Cir. 2003). We review the IJ’s determination under a substantial-evidence standard such that

we will not disturb the IJ’s findings provided they are “supported by reasonable, substantial, and

probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481

(1992) (quoting 8 U.S.C. § 1105a(a)(4)) ; Namo v. Gonzales, 401 F.3d 453, 456 (6th Cir. 2005). We

will reverse only if we find “that the evidence not only supports a contrary conclusion, but indeed

compels it.” Rreshpja v. Gonzales, 420 F.3d 551, 554 (6th Cir. 2005) (quoting Klawitter v. INS, 970

F.2d 149, 152 (6th Cir. 1992)); Ouda v. INS, 324 F.3d 445, 451 (6th Cir. 2003) (stating that an

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asylum applicant must show “that the evidence presented was so compelling that no reasonable

factfinder could fail to find the requisite persecution or fear of persecution”).

B.       Asylum Claims Based on Political Persecution

         Asylum applications are reviewed under a two-part test. First, the IJ must determine whether

the petitioner qualifies as a “refugee” within the meaning of the Immigration and Nationality Act

(“INA”). 8 U.S.C. § 1158(b)(1)(A); Perkovic v. INS, 33 F.3d 615, 620 (6th Cir. 1994). Second, the

IJ asks whether the petitioner merits a favorable exercise of discretion by the Attorney General. Id.

The petitioner bears the burden of proof at both stages. Pilica v. Ashcroft, 388 F.3d 941, 950 (6th

Cir. 2004) (citing Klawitter, 970 F.2d at 151).

         The INA defines a “refugee” as any person who is unable or unwilling to return to his home

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.”              8 U.S.C. §

1101(a)(42)(A). “In order to demonstrate that he qualifies as a refugee, an alien must establish either

that he has suffered actual past persecution or that he has a well-founded fear of future persecution.”

Pilica, 388 F.3d at 950 (citations omitted); see also Gilaj v. Gonzales, 408 F.3d 275, 283 (6th Cir.

2005).

         1.     Past Persecution

         Shkreli contends that he has presented sufficient evidence showing that he was persecuted

in Albania on account of his family’s political activism, and that the IJ erred in concluding otherwise.

In support, Shkreli points to evidence of harassment, imprisonment, and torture that some of his

family members have endured as a result of their long-time pro-democracy advocacy. Shkreli also

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cites the denial of medical treatment that left him mentally disabled, the government’s refusal to

place him in a special-needs school, and the December 1998 incident in which he and his sister were

attacked by a group of people on their way home from church. Shkreli argues that the IJ failed to

consider this evidence in the aggregate, and instead improperly concluded that Shkreli had presented

sufficient evidence of only a single instance of persecution—the December 1998 attack—which the

IJ deemed insufficient to give rise to a finding of past persecution.

        We find no error in the IJ’s interpretation of the evidence. As an initial matter, the IJ

acknowledged that Shkreli’s description about the persecution his family suffered under Albania’s

communist regime is “consistent with the known country conditions and the Court would have no

reason to doubt this.” However, Shkreli “cannot rely solely on the persecution of his family

members to qualify for asylum.” Akhtar v. Gonzales, 406 F.3d 399, 406 (6th Cir. 2005) (quoting

Ciorba v. Ashcroft, 323 F.3d 539, 545 (7th Cir. 2003)) (holding that petitioner, who was not

politically active, could not establish a well-founded fear of persecution on the basis of the politically

motivated murder of his father). In the absence of evidence showing “a pattern of persecution tied

to [Shkreli] himself,” we decline to conclude that the acts of persecution suffered by Shkreli’s family

can be imputed to him. Id. (quoting Gebremaria v. Ashcroft, 378 F.3d 734, 739 (8th Cir. 2004); see

also Almuhtaseb v. Gonzales, 453 F.3d 743 (6th Cir. 2006) (affirming judgment that the petitioner

had not established past persecution in connection with her family’s political involvement where her

father was jailed six times, her siblings were shot, and other relatives were killed).

        On the same note, Shkreli may not obtain asylum just because Albana’s application for

asylum was granted. Favorable adjudications on the asylum applications of even immediate family

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members, however, is not dispositive of any petitioner’s application. Almuhtaseb, 453 F.3d at 745

(affirming decision denying withholding of removal even where the petitioner’s siblings had been

granted asylum); Akhtar, 406 F.3d at 402 (affirming denial of asylum even where the petitioner’s

mother had been granted asylum).

       Second, a reasonable factfinder would not be compelled to make a finding of persecution

based on the inability of Shkreli’s parents to obtain necessary medical attention for him when he fell

ill as a baby, or their inability to arrange suitable schooling for him. The IJ properly concluded that

Shkreli failed to adduce sufficient evidence documenting these events and showing that they

occurred because of his family’s political activism.

       Based on his observations of Shkreli, Albana’s testimony, and the letter from Dr. Sendi

opining that Shkreli is moderately mentally retarded, the IJ had no trouble concluding that Shkreli

suffers from a cognitive impairment. The IJ also credited Shkreli’s assertion that he “had an

immunization that went bad,” which led to his disability. (Id.) However, the IJ found that the only

evidence suggesting that Shkreli was denied medical treatment came from Albana, who did not

testify that her brother was turned away from the hospital due to her parents’ political opinions. The

IJ also found Albana’s testimony that the government blocked her father’s efforts to enroll Shkreli

in a special-needs school insufficient to establish that this constituted persecution. As to both the

medical and educational issues, the IJ reasoned that Albana’s testimony was inconclusive because,

since she is only two years older than Shkreli, she would have been too young at the time the relevant

events occurred to have observed them first-hand; her testimony, therefore, was hearsay. (Id.)

       The IJ did not err in concluding that the lack of corroborating documents is fatal to Shkreli’s

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claim of past persecution based on the deprivation of medical treatment and educational opportunity.

Although corroborating documents are not necessary if an asylum petitioner is deemed credible, their

absence may give rise to a finding that the petitioner has failed to carry his burden if the documents

are “the type that would normally be created or available in the particular country and [are]

accessible” to the petitioner. Dorosh v. Ashcroft, 398 F.3d 379, 383 (6th Cir. 2004). The IJ properly

reasoned that Shkreli should have obtained supporting affidavits from his parents, who presumably

could have substantiated his allegations and linked the harm that befell Shkreli to the family’s

political views.   Shkreli does not argue that he was reasonably foreclosed from obtaining

corroborative testimony from his parents and, in any event, the record would likely belie any such

contention: Albana testified that she was last in contact with her parents just two or three months

prior to Shkreli’s asylum hearing and that she had visited them in Montenegro in 2002 or 2003.

Thus, there is no reason to think that Shkreli’s parents were out of his reach for purposes of

compiling his asylum record.

         Finally, what remains of Shkreli’s claim of past persecution is the December 1998 attack

upon Shkreli and Albana as they drove home from church. The IJ concluded that this was the only

incident supported by adequate evidence, but that it did not rise to the level of persecution. We

agree.

         “[P]ersecution” within the meaning of 8 U.S.C. § 1101(a)(42)(A) “requires more than a few

isolated incidents of verbal harassment or intimidation, unaccompanied by any physical punishment,

infliction of harm, or significant deprivation of liberty.” Mikhailevitch v. INS, 146 F.3d 384, 390

(6th Cir. 1998). “Mikhailevitch has not been interpreted as ‘suggesting that physical punishment is

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in all cases sufficient for finding persecution.’” Gilaj, 408 F.3d at 284 (quoting Gjokic v. Ashcroft,

104 Fed. Appx. 501, 505 (6th Cir. 2004). Here, Shkreli’s attackers beat him, dislocated his arm, and

stole the car that he and Albana were driving in. Although odious, this single instance of violence

does not compel a finding that Shkreli was persecuted. Indeed, our cases have required a far more

substantial pattern of inhumane treatment to show past persecution. In Gilaj, for example, this Court

reversed the BIA’s determination that the Albanian petitioner had not established past persecution

where she credibly testified that she was beaten by police and threatened with suffocation and death

during two forcible searches of her home; police deprived her of nourishment during a two-day

detention; she was the victim of a sexual assault or attempted sexual assault; and she and her family

were subjected to numerous death threats, as recently as a month prior to fleeing Albania. 408 F.3d

at 279-81. Similarly, in Ouda, we held that the evidence compelled a finding of past persecution

where the Palestinian petitioner credibly testified that in Kuwait her family was denied basic

necessities, such as the right to buy food and water; her father was prohibited from working; she and

her family could not leave their home because armed bands of men roamed the streets abusing

Palestinians; and she and her family were ordered to leave Kuwait. 324 F.3d at 448-49.

       Shkreli’s claim rests on far less severe circumstances than those presented in Gilaj and Ouda.

The evidence does not compel a conclusion contrary to that reached by the IJ.

       2.      Future Persecution

       We now turn to the question of whether Shkreli has established a well-founded fear of future

persecution. If an asylum applicant establishes past persecution, it is presumed that he has a well-

founded fear of future persecution. 8 C.F.R. § 208.13(b)(1). The Government may rebut that

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presumption, however, by showing by a preponderance of the evidence either (1) that there has been

a fundamental change in country conditions such that the applicant no longer has a well-founded fear

of being persecuted, or (2) that the applicant could avoid future persecution by relocating to another

part of the applicant’s home country. 8 C.F.R. § 208.13(b)(1)(i).

        A petitioner may still be able to show a well-founded fear of future persecution even if he

has failed to establish past persecution. To do so, the petitioner must show that (1) he fears

persecution in his home country on account of race, religion, nationality, membership in a particular

social group, or political opinion; (2) there is a reasonable possibility of suffering such persecution

if he returned to that country; and (3) he is unable or unwilling to return because of such fear. 8

C.F.R. § 208.13(b)(2). “A well-founded fear of persecution thus has both a subjective and an

objective component: an alien must actually fear that he will be persecuted upon return to his

country, and he must present evidence establishing an objective situation under which his fear can

be deemed reasonable.” Pilica, 388 F.3d at 950 (internal quotation marks omitted).

        As an initial matter, Shkreli predicated his future-persecution claim before the BIA, and now

before this Court, exclusively on the proposition that he established past persecution and therefore

is entitled to a presumption of having a well-founded fear of future persecution. Consequently, even

if Shkreli did press before this Court a future-persecution claim untethered to a finding of past

persecution, we would be jurisdictionally barred from considering it. See 8 U.S.C. § 1252(d)(1) (“A

court may review a final order of removal only if . . . the alien has exhausted all administrative

remedies available to the alien as of right . . . .”); Liti v. Gonzales, 411 F.3d 631, 641 (6th Cir. 2005).

        As described above, substantial evidence supports the IJ’s conclusion that Shkreli has not

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established past persecution. We therefore cannot presume that Shkreli has a well-founded fear of

future persecution. Even if such a presumption were warranted, however, the IJ did not err in

holding that the Government has successfully rebutted it.

        First, the Government submitted State Department country reports which explain that

modern-day Albania does not exhibit signs of political and religious persecution. Sterkaj v.

Gonzales, 439 F.3d 273, 276 (6th Cir. 2006) (relying on State Department country reports for

Albania in denying the asylum applicant’s petition for review); Mullai v. Ashcroft, 385 F.3d 635, 639

(6th Cir. 2004) (quoting Kokaj v. Ashcroft, 100 Fed. App’x 506, 508 (6th Cir. 2004)) (characterizing

State Department reports as “generally the best source of information on conditions in foreign

nations”).

        The State Department’s 2004 “Profile of Asylum Claims and Country Conditions”

acknowledges that during much of the twentieth century, Albanians suffered under an “exceptionally

repressive and idiosyncratic Communist regime.” However, the report goes on to state that Albania

has made steady progress toward institutionalizing democratic norms since the collapse of

communism beginning in 1990. Albania experienced a tumultuous and violent period in 1997-1998

provoked by an economic collapse, but has rebounded both politically and economically since then.

The report states that “the available evidence suggests that neither the Government nor the major

political parties engage in policies of abuse or coercion against their political opponents . . . [and]

there are no indications of systemic political persecution in Albania at the present time.” Indeed, this

Court has expressly held that circumstances in Albania do not support asylum-seekers’ claims that

they will be persecuted if forced to return. Macotaj v. Gonzales, 424 F.3d 464, 465 (6th Cir. 2005)

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(stating that “despite whatever political repression [petitioner] and his family may have suffered in

the past, conditions in Albania have changed to such an extent that [petitioner] no longer has reason

to fear persecution upon return to his homeland”). Furthermore, Shkreli’s parents have continued

to reside in Albania and Shkreli has not introduced any evidence indicating that they have been

subjected to ongoing harassment or abuse due to their political opinions. These facts undermine

Shkreli’s claim for asylum. Gumbol v. INS, 815 F.2d 406, 413 (6th Cir. 1987) (noting, as support

for the conclusion that petitioner had not established future persecution, that petitioner’s family

continued to live in Iraq, “apparently unharmed”).

       Second, the Government also has rebutted the presumption of future persecution by pointing

to evidence that shows that Shkreli could avoid any problems by residing in a different part of

Albania from where he grew up. Following the December 1998 attack on Shkreli and his sister,

Shkreli’s father took the two to live with their aunt in Lezhe City, located about a two-hour drive

from Bzhete. Shkreli lived there for more than a year-and-a-half before coming to the United States.

There is no record evidence showing that he experienced any difficulties while living in Lezhe City.

Shkreli challenges this reasoning by arguing that it is improper to conclude that he could live safely

elsewhere in Albania because there is equally no evidence showing that he did not suffer persecution

in Lezhe City. This argument is meritless. Shkreli bore the burden of establishing his eligibility for

asylum. The IJ properly based his conclusion on what the evidence demonstrated, not, as Shkreli

would have it, on what it did not demonstrate.

C.     Asylum Claims Based on Religious Persecution

       As a subsidiary issue, Shkreli asserts in his asylum application that his family also suffered

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persecution on account of their Catholic faith. Religious exercise was prohibited under the

Communist regime, but Shkreli’s father worked to open Catholic churches. In 1990, Shkreli’s

father, uncle, and brother were arrested and tortured after bringing a priest to their village to celebrate

mass. Albana testified that the December 1998 attack upon her and Shkreli occurred as they were

coming home from church and that their attackers instructed them “not to speak out” about religion.

She also vaguely testified that her family experienced “problems” due to their “religious activity.”

        For the same reasons that Shkreli has failed to establish past persecution and future

persecution in connection with his family’s political activism, he has failed to establish persecution

in connection with their religion. He has not adequately corroborated his allegations with affidavits

from his parents or other siblings; other than the December 1998 encounter, which is insufficiently

severe to give rise to a finding of persecution, he has not shown a pattern of harassing or abusive

incidents targeted at him; and he has not contradicted the State Department’s conclusion that Albania

is a religiously tolerant country. We are therefore not compelled to reverse the findings of the IJ.

D.      Humanitarian Asylum

        Finally, Shkreli contends that even if he has not satisfied the standard test for asylum

eligibility, he nonetheless should be granted asylum on humanitarian grounds. A petitioner may

qualify for humanitarian asylum by showing (1) compelling reasons for being unwilling or unable

to return to his home country arising out of the severity of the past persecution, or (2) that there is

a reasonable possibility that he may suffer other serious harm upon removal to that country. 8 C.F.R.

§ 1208.13(b)(1)(iii)(A) & (B).

        Shkreli cannot avail himself of these provisions because this Court has held that to qualify

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for asylum on humanitarian grounds, the petitioner must show past persecution. Rreshpja, 420 F.3d

at 556. Although 8 C.F.R. § 1208.13(b)(1)(iii)(B) makes no mention of past persecution, as does

subpart (A), the Justice Department has explained that subpart (B) also is contingent upon a showing

of past persecution. See Liti, 411 F.3d at 642 (commenting that the Justice Department has described

the purpose of subpart (B) as authorizing the grant of asylum relief to petitioners “who have suffered

persecution in the past and who are at risk of future harm that is not related to a protected ground”)

(emphasis added). For the reasons described above, Shkreli has not established past persecution and

therefore his claim for humanitarian asylum also fails.

E.     Withholding of Removal and Protection Under the CAT

       The IJ also denied Shkreli’s claims for withholding of removal and protection under the

CAT. Shkreli, however, has not challenged these portions of the IJ’s decision before the BIA or this

Court. We therefore lack jurisdiction to consider whether the IJ erred as to either issue since Shkreli

did not exhaust his administrative remedies by presenting them to the BIA. See 8 U.S.C. §

1252(d)(1); Liti, 411 F.3d at 641. Further, even if they were not jurisdictionally barred, Shkreli’s

failure to raise them before this Court constitutes a waiver. United States v. Layne, 192 F.3d 556,

566-67 (6th Cir. 1999) (holding that arguments that are not raised or that are not accompanied by

factual and legal support are deemed waived).

                                        III. CONCLUSION

       For the foregoing reasons, we DENY Shkreli’s petition for review of the BIA’s decision.




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