United States Court of Appeals

for the Fifth Circuit

No. 18-60827

Xhino Gjetani, 

Petitioner,

versus

William P. Barr, U.S. Attorney General, 

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A216 285 464

Before Dennis, Southwick, and Ho, Circuit Judges.

James C. Ho, Circuit Judge:

Xhino Gjetani, an Albanian citizen, seeks asylum on the ground that 

members of his country’s Socialist Party threatened to kill him three times, 

and physically attacked him on one of those occasions, due to his support for 

the Albanian Democratic Party. What they did to him is repugnant. No 

person should have to endure what he suffered. But that does not entitle him 

to asylum under our laws. Our Nation’s immigration policy is determined by 

the political branches, not the courts.

United States Court of Appeals

Fifth Circuit

FILED

July 30, 2020

Lyle W. Cayce

Clerk

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Congress has made clear that asylum is reserved for people who are 

the specific targets of “persecution.” That means a systematic, sustained 

pattern of assaults or other acts of oppression—not individual or even a 

handful of assaults or threats. Furthermore, Congress has vested broad 

discretion in the Executive Branch to make asylum determinations, and 

instructed courts to give significant deference to Executive decisions.

That deference is required here. Gjetani suffered three threats and 

one attack during a short period of time. Had those incidents continued, he 

might very well have stated a case of persecution. But he experienced no 

further threats or attacks for the following six months, before he decided to 

leave Albania. Based on the record before them, both the Immigration Judge 

and the Board of Immigration Appeals concluded that these facts did not 

amount to persecution. Our precedents leave us no choice but to defer to 

that Executive Branch determination. Accordingly, we deny the petition for 

review in part and dismiss the petition in part.

I.

Gjetani is an Albanian national and a supporter of the Albanian 

Democratic Party. While in Albania, he was, according to his testimony, 

threatened three times and assaulted once on account of his political beliefs 

by members of the rival Socialist Party.1

The first time he was threatened, on June 15, 2017, Gjetani and his 

friends were publicly carrying flags for the Democratic Party, when they 

1 The dissent says that Gjetani was threatened four times, rather than three. The 

discrepancy results from the dissent’s decision to treat one of his three threats as two 

separate incidents. We defer to the IJ, BIA, and Gjetani himself in stating that he was 

threatened three times. For example, his asylum interview contains the following exchange 

between Gjetani and the asylum officer: “Q: How many times have you been threatened? 

A: I’ve been threatened three times.” 

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encountered members of the Socialist Party. The Socialist contingent 

confiscated their flags and threatened to kill Gjetani if he carried Democratic 

Party flags again. Gjetani attempted to file a report with the police, but was 

rebuffed.

Three days later, Gjetani was at home with his family when Socialist 

Party members came canvassing for votes. Upon learning that Gjetani and 

his family supported the Democratic Party, the Socialist Party members 

attacked Gjetani and his father. Gjetani suffered injuries to his left knee and 

toe. According to Gjetani, four men assaulted him and his father using a belt 

and a “sharp metal object.” The Socialist Party members said they would 

kill Gjetani if he did not vote as directed. Gjetani went to the hospital, 

received stitches, and was discharged that day. He was not prescribed any 

pain medication.

A week later, on Election Day in Albania, Gjetani and his family were 

traveling to vote. They were confronted by Socialist Party members who 

demanded they vote for the Socialists or else face death.

Six months later, on December 20, 2017, Gjetani left Albania. He filed 

an application for asylum, withholding of removal, and relief under the 

Convention Against Torture (CAT). Gjetani explained that he feared he 

would be persecuted, beaten, and killed because of his political opinions if he 

returned to Albania.

The Immigration Judge (IJ) held an evidentiary hearing on June 4, 

2018. The IJ concluded that these incidents did not constitute persecution. 

And although Gjetani had a subjective fear of future harm, the IJ found that 

his fear was not objectively reasonable. The IJ also denied relief under 

withholding of removal and the CAT.

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The Board of Immigration Appeals (BIA) adopted and affirmed the 

IJ’s decision and dismissed the appeal. Gjetani now seeks review in federal 

court.

II.

We generally review only the asylum decision of the BIA, although, as 

here, we will consider the IJ’s decision if it influenced that of the BIA. See 

Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009). 

Asylum is available to a “refugee” at the discretion of the 

government. 8 U.S.C. § 1158(b)(1). A “refugee” is “any person . . . who is 

unable or unwilling to return to . . . [his] country because of persecution or a 

well-founded fear of persecution on account of [a protected ground].” Id.

§ 1101(a)(42). To establish eligibility for asylum, Gjetani was required to 

demonstrate either past persecution or a well-founded fear of future 

persecution. See 8 C.F.R. § 208.13(b). But even proving eligibility “does not 

automatically entitle a refugee to asylum.” Chen v. Gonzales, 470 F.3d 1131, 

1135 (5th Cir. 2006). Federal law makes clear that “the Attorney General’s 

discretionary judgment whether to grant [asylum] relief [to a refugee] shall 

be conclusive unless manifestly contrary to the law and an abuse of 

discretion.” 8 U.S.C. § 1252(b)(4)(D).

As Gjetani acknowledges, “[w]e use the substantial evidence standard 

to review the IJ’s factual conclusion that an alien is not eligible for asylum.” 

Zhao v. Gonzales, 404 F.3d 295, 306 (5th Cir. 2005). Under this deferential 

standard, we will grant a petition for review only when the record evidence 

“compels” a conclusion contrary to the agency’s determination. Id. (citing 

INS v. Elias–Zacarias, 502 U.S. 478, 481 n.1 (1992)). “The applicant has the 

burden of showing that the evidence is so compelling that no reasonable 

factfinder could reach a contrary conclusion.” Chen, 470 F.3d at 1134

(emphasis added). After all, Congress has declared that “administrative 

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findings of fact are conclusive unless any reasonable adjudicator would be 

compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). 

Moreover, our circuit precedents (which we are, of course, dutybound to follow) make clear that we use the “substantial evidence” standard, 

even when the agency determines the alien is credible and accepts his version 

of the facts. See, e.g., Tamara-Gomez v. Gonzales, 447 F.3d 343, 347 (5th Cir. 

2006) (“[r]eviewing these findings under the substantial evidence standard” 

when an alien was deemed “credible” and “‘accepting his account’” of the 

facts).2

A.

First, some preliminary procedural issues. Gjetani argues that the IJ 

used the wrong legal standard in evaluating past persecution, and that the IJ’s 

persecution finding failed to sufficiently analyze the extremity of the harm he 

2 The dissent’s contention that we should apply de novo rather than substantial 

evidence review is thus contradicted by circuit precedents such as Tamara-Gomez.

In response, the dissent contends that Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062 

(2020), abrogates our substantial evidence review circuit precedents. It does not. 

Guerrero-Lasprilla addressed the scope of the judicial review provision in 8 U.S.C. 

§ 1252(a)(2)(D)—namely, “whether the statutory phrase ‘questions of law’ includes the 

application of a legal standard to undisputed or established facts.” Id. at 1068.

But the issue here is not whether we have jurisdiction to review Gjetani’s 

persecution claim under § 1252(a)(2)(D) (we do), but what standard of review we must 

apply to his claim under § 1252(b)(4)(B). See, e.g., Tamara-Gomez, 447 F.3d at 347 

(applying substantial evidence review under § 1252(b)(4)(B)). These are distinct issues—

which explains why the majority in Guerrero-Lasprilla does not even mention, let alone 

purport to construe, § 1252(b)(4)(B). And of course, only our en banc court can “overrule 

the decision of a prior panel unless such overruling is unequivocally directed by controlling 

Supreme Court precedent”—a standard plainly not met here. United States v. ZunigaSalinas, 945 F.2d 1302, 1306 (1991).

So it is not surprising that even Gjetani acknowledges that his appeal is subject to 

substantial evidence, not de novo, review.

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suffered in light of the entire record. Neither of these claims was raised 

before the BIA. Gjetani has thus failed to exhaust his administrative remedies 

as to those claims. We therefore lack jurisdiction to consider them. See

Omari v. Holder, 562 F.3d 314, 318 (5th Cir. 2009) (“Petitioners fail to 

exhaust their administrative remedies as to an issue if they do not first raise 

the issue before the BIA.”). These claims are dismissed.3

B.

Gjetani contends that the attack and death threats against him 

amounted to persecution, and that the BIA erred in concluding otherwise.4

Persecution is often described in the negative: It is not harassment, 

intimidation, threats, or even assault. Persecution is a specific term that 

“does not encompass all treatment that our society regards as unfair, unjust, 

or even unlawful or unconstitutional.” Majd v. Gonzales, 446 F.3d 590, 595 

(5th Cir. 2006) (quoting Al–Fara v. Gonzales, 404 F.3d 733, 739 (3rd Cir.

2005)). Persecution requires more. As our distinguished colleagues from 

courts of appeals across the country have elaborated, it has the quality of a 

sustained, systematic effort to target an individual on the basis of a protected 

ground. See Bocova v. Gonzales, 412 F.3d 257, 263 (1st Cir. 2008), superseded 

in unrelated part by 8 C.F.R. § 1240.26(i) (noting persecution is characterized 

as “mistreatment [that] can be said to be systematic rather than reflective of 

a series of isolated incidents”); Lie v. Ashcroft, 396 F.3d 530, 537 (3rd Cir. 

3 Gjetani also sought relief before the IJ and BIA under the Convention Against 

Torture. But he has not challenged the denial of that relief before this court. We therefore 

treat that claim as abandoned. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).

4 Gjetani also challenges the BIA’s reliance on Matter of Acosta, 19 I. & N. Dec. 211, 

222 (BIA 1985), overruled in part on other grounds by Matter of Mogharrabi, 19 I. & N. Dec. 

439 (BIA 1987), for allegedly setting out the wrong legal standard for persecution. We find 

no error. The BIA correctly stated the governing legal standard.

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2005), superseded in unrelated part by 8 U.S.C. § 1158(b)(1)(B)(i) (holding a 

“pattern or practice” of persecution requires it be “systemic, pervasive, or 

organized”) (citation omitted); Baharon v. Holder, 588 F.3d 228, 232 (4th 

Cir. 2009) (finding “[a] key difference between persecution and less-severe 

mistreatment is that the former is ‘systematic’ while the latter consists of 

isolated incidents”); Wijono v. Gonzalez, 439 F.3d 868, 874 (8th Cir. 2006) 

(holding “persecution of [a] group must be ‘systemic, pervasive, or 

organized’”) (citation omitted). See also Woldeyes v. Ashcroft, 83 F. App’x 

586, 588 (5th Cir. 2003) (per curiam) (finding no persecution absent 

“evidence of systematic persecution by the government”).

So even those subject to brutal physical attack are not necessarily 

victims of “persecution.” Courts have condemned all manner of egregious 

and even violent behavior while concluding they do not amount to 

persecution. See, e.g., Singh v. Barr, No. 19-60150, 2020 WL 3407167, at *3 

(5th Cir. June 19, 2020) (per curiam) (no persecution when an individual was 

twice beaten, including once until unconscious and resulting in a swollen 

shoulder and legs); Venturini v. Mukasey, 272 F. App’x 397, 402–03 (5th Cir. 

2008) (per curiam) (no persecution when an individual was beaten twice and 

hospitalized for bruises, a broken rib, trouble breathing from tear gas, and 

overnight hospitalization); Rojas v. INS, 937 F.2d 186, 188 (5th Cir. 1991) (per 

curiam) (no persecution when an individual was “arrested, beaten, and 

tortured”); see also Reyes-Morales v. Gonzales, 435 F.3d 937, 942 (8th Cir. 

2006) (no persecution when an individual was beaten unconscious and left 

with “a physical deformity and several scars” while his “friend was killed 

during this incident”); Dandan v. Ashcroft, 339 F.3d 567, 573–74 (7th Cir.

2003) (no persecution when an individual was kidnapped, detained for three 

days without food, and extensively beaten, resulting in facial swelling). 

When we do have evidence of regular and methodical targeting, by 

contrast, we have not hesitated to find persecution. Take Tamara-Gomez v. 

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Gonzales, 447 F.3d 343 (5th Cir. 2006). Henry Tamara-Gomez was a 

Colombian helicopter mechanic who accompanied a team of Colombian 

National Police (CNP) officers on a retrieval mission to recover the bodies of 

fallen CNP comrades killed in a remote jungle village by terrorists in the 

Fuerzas Armadas Revolucionarias de Colombia (FARC). Id. at 345. Soon 

after the mission concluded, Tamara-Gomez began receiving death threats 

against him and his family. Id. at 346. The calls went to his cell phone, and 

then spread to his home phone. Id. Fearing for his family’s safety, TamaraGomez uprooted his wife and children and moved them away. Id. Within 

weeks, the calls began again at the new house, now accompanied by demands 

for money. Id. Soon after, a bicycle bomb detonated in his family’s new 

neighborhood, killing five civilians. Id. And all the while, FARC was 

systematically hunting down and executing Tamara-Gomez’s retrieval team 

members and their families. Id.

That is prototypical persecution. The refugee faced an organized, 

relentless campaign of intimidation, extortion, and murder. Gjetani’s 

treatment at the hands of Socialist Party members cannot be said to be the 

same. The three occasions on which he was threatened—one of which 

resulted in physical injury—did not necessarily reflect the kind of pattern of 

sustained pursuit that persecution requires. Instead, the IJ concluded that 

these acts were one-off incidents related to the one-time event of the 

Albanian election, and unlikely to recur.

The beating and threats suffered by Gjetani are similar to those 

endured in Singh v. Barr, No. 19-60150, 2020 WL 3407167 (5th Cir. June 19,

2020) (per curiam). Singh, a member of the minority Mann Party in India, 

was beaten twice—including once to the point of losing consciousness—and 

received death threats by members of the rival Badal Party. See Singh, 2020 

WL 3407167, at *1. But we concluded that Singh had not demonstrated he 

suffered the requisite level of harm to constitute persecution. See also Singh 

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v. Whitaker, 751 F. App’x 565, 567 (5th Cir. 2019) (per curiam) (no 

persecution where a member of a minority political party was beaten twice); 

Gill v. Barr, 765 F. App’x 225, 225 (9th Cir. 2019) (per curiam) (no 

persecution where a member of a minority political party was beaten and 

threatened with death).

Lastly, we have often taken note of when, as here, an alien has endured 

a threat or assault but has nevertheless chosen to stay in his home country for 

a period of time—because the choice to stay tends to weaken the claim of 

persecution. See, e.g., Panmesri v. Holder, 313 F. App’x 723, 726 (5th Cir. 

2009) (per curiam), Diaz Flores v. Ashcroft, 104 F. App’x 418, 419 (5th Cir. 

2004) (per curiam); Hafiz v. Ashcroft, 69 F. App’x 659 (Table) (5th Cir. 

2003) (per curiam). Gjetani remained in Albania until December 20, 2017. 

He has offered no explanation as to why he elected to stay in Albania for 

almost half a year after the last instance of threatening behavior, or how he 

was persecuted when no further threats or attacks took place during that 

time.

We conclude that the BIA did not err in finding that Gjetani’s injuries 

did not amount to past persecution.

C.

To establish a well-founded fear of future persecution, an alien must 

demonstrate “a subjective fear of persecution, and that fear must be 

objectively reasonable.” Eduard v. Ashcroft, 379 F.3d 182, 189 (5th Cir. 2004)

(citation omitted). The IJ and BIA reasonably concluded that Gjetani failed 

to show that his subjective fear of persecution on his return to Albania was 

objectively reasonable. They properly considered the fact that Gjetani’s 

family has not received threats or suffered any physical harm despite 

remaining in Albania. See id. at 193 (noting “the reasonableness of an alien’s 

fear of persecution is reduced when his family remains in his native country 

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unharmed for a long period of time after his departure”). Further, the IJ and 

BIA found no evidence in the record to suggest that anyone had been looking 

for Gjetani in Albania since the election, much less that he was being targeted 

in the future. 

Lastly, Gjetani complains that the IJ and BIA did not consider his 

expert affidavit stating that he would suffer continued persecution if he 

remained in Albania. The record belies that claim. It establishes that the IJ 

gave meaningful consideration to the affidavit—not least by explicitly 

referencing it in his evidentiary report. See Abdel-Masieh v. INS, 73 F.3d 579, 

585 (5th Cir. 1996) (“We do not require that the BIA address evidentiary 

minutiae or write any lengthy exegesis.”). 

D.

Gjetani has failed to show error by the IJ and BIA in denying his 

request for asylum. Because he did not qualify for asylum, Gjetani necessarily 

did not meet the higher threshold for establishing eligibility for withholding 

of removal. See Eduard, 379 F.3d at 186 n.2. 

* * *

Our decision today does not diminish the injury that Gjetani and many 

other foreign nationals too often suffer in their home countries simply for 

holding unpopular political beliefs. Perhaps it is little surprise then that so 

many of them seek refuge in America—a country built on the idea that 

political disagreements are to be celebrated, rather than repressed. But how 

our Nation deals with refugees is a political decision for the political branches 

to make. And Congress has gone out of its way to circumscribe the role of 

the federal courts in this arena. Accordingly, we must deny the petition in 

part and dismiss in part.

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James L. Dennis, Circuit Judge, dissenting.

I must respectfully disagree with the majority’s holding. It would be 

one thing if the majority simply concluded that the treatment that Xhino 

Gjetani endured was not severe enough to constitute “persecution,” 

although I would disagree with that assessment. However, the majority also 

errs by characterizing the Board of Immigration Appeals’s (BIA’s) 

determination that the undisputed facts of this case amount to “persecution” 

within the meaning of 8 U.S.C. § 1101(a)(42)(A) as a “factual conclusion” 

that is subject to only the deferential “substantial evidence” standard of 

review. Majority at 4. 

To be sure, the BIA’s determination that an alien has failed to 

establish persecution on account of a protected ground can be based on 

factual determinations for which the substantial evidence standard applies. 

For example, in INS v. Elias-Zacarias, the Supreme Court applied the 

substantial evidence standard to the question of whether the alien had 

established that any persecution he would face was because of his political 

opinion. See 502 U.S. 478, 482 (1992) (“Elias–Zacarias still has to establish 

that the record also compels the conclusion that he has a ‘well-founded fear’ 

that the guerrillas will persecute him because of that political opinion, rather 

than because of his refusal to fight with them.” (emphasis in original)). This 

is because what motivates a group or individual—including a persecutor—is 

a classic example of a question of fact. See, e.g., Casarez v. Burlington 

N./Santa Fe Co., 201 F.3d 383, 384 (5th Cir. 2000) (“It is clear that Casarez 

has met his burden . . . by creating a factual question as to what actually 

motivated Burlington to terminate his employment.”); Trevino v. Ramos, 197 

F.3d 777, 781 (5th Cir. 1999) (“The primary issue in this case is the factual 

question of motivation[.]”); Nationwide Amusements, Inc. v. Nattin, 452 F.2d 

651, 652 n.1 (5th Cir. 1971) (“The factual sufficiency of the cause of action 

turns on the motivation of the city officials, a fact question that can only be 

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determined in the district court.”). Similarly, substantial evidence review 

would apply to the question of past persecution when the BIA’s 

determination was based on a finding that the alien’s account was not 

credible; this, too, is a question of fact—i.e., whether the alien was telling the 

truth or whether the events the alien recounted actually occurred. See, e.g., 

Wang v. Holder, 569 F.3d 531, 537 (5th Cir. 2009) (applying substantial 

evidence standard to determination that alien’s account of events was not 

credible). 

But none of these factual questions are in play in this case, where the 

Immigration Judge (IJ) and BIA found Gjetani’s account of events credible. 

Instead, the IJ and BIA’s determination was based on the purely legal 

conclusion that the undisputed facts were not “persecution” within the 

meaning of 8 U.S.C. § 1101(a)(42)(A). Determining the meaning of 

“persecution” as it appears in the statute and applying that standard to 

undisputed facts is a basic matter of statutory interpretation, which is a 

“quintessential question of law.” Stephens ex rel. R.E. v. Astrue, 565 F.3d 131, 

137 (4th Cir. 2009); accord Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1068 

(2020).1 The BIA’s interpretation is therefore due deference, if at all, only 

1 The Majority contends that the rule of orderliness obliges us to apply the 

substantial evidence standard because panels of this court have in the past employed the 

“substantial evidence” language when considering the question of persecution where the 

facts were undisputed. However, any duty we had to follow these precedents was 

abrogated by the Supreme Court’s recent affirmance of the basic principle that “the 

application of a legal standard to undisputed or established facts” is a “question of law” 

within the meaning of the Immigration and Nationality Act. Guerrero-Lasprilla, 140 S. Ct. 

at 1068. Although this occurred in the context of a case examining a jurisdictional bar in 

another portion of the Immigration and Nationality Act, we have long recognized that “we 

review . . . questions of law de novo,” including when reviewing the BIA’s conclusions 

regarding persecution. Rui Yang v. Holder, 664 F.3d 580, 584 (5th Cir. 2011) (citing Zhu v. 

Gonzales, 493 F.3d 588, 594 (5th Cir. 2007)); accord, e.g., Shaikh v. Holder, 588 F.3d 861, 

863 (5th Cir. 2009); Lopez–Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001); Eduard v. 

Ashcroft, 379 F.3d 182, 186 (5th Cir. 2004) (citing Mikhael v. INS, 115 F.3d 299, 305 (5th 

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to the extent called for under the familiar Chevron framework. See Chevron, 

U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 841(1984) (holding 

that courts should defer to an agency’s reasonable interpretation of 

ambiguous statutes). 

Neither the Government nor the majority argues that the term 

“persecution” as it appears in 8 U.S.C. § 1101(a)(42)(A) is the type of 

“ambiguous statutory term” for which “the BIA should be accorded Chevron

deference as it gives [the word] ‘concrete meaning through a process of caseby-case adjudication.’”2

 I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) 

(quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 448–449 (1987)). In the 

absence of such an argument, I would reaffirm that, where the facts are 

undisputed, “[w]hether a prior assault rises to the level of past-persecution 

is a question of law that we review de novo.” Morales v. Sessions, 860 F.3d 

812, 816 (5th Cir. 2017).

Upon de novo review, I believe Gjetani has made a sufficient showing 

to establish past persecution under our precedents. It is undisputed that 

Gjetani was subject to repeated in-person death threats and an armed attack 

that was explicitly tied to his political affiliation. The first death threat was 

accompanied by the theft of his political paraphernalia. On the second 

occasion, Gjetani and a family member were severely beaten with a belt and 

stabbed with sharp metal objects, resulting in a severe enough injury that 

Cir.1997)); etc. Guerrero-Lasprilla’s holding that the BIA’s application of a legal standard 

to undisputed facts is a question of law therefore unequivocally settles the question of what 

standard of review we should apply to such conclusions.

2 Were that the case, we would examine the BIA’s interpretation to decide if it is 

unreasonable or clearly contrary to congressional intent, as well as whether its application 

was consistent with the agency’s past precedents. See Cardoza-Fonseca, 480 U.S. at 448 

(holding that the phrase “well-founded fear,” which is also found in 8 U.S.C. § 

1101(a)(42)(A), is ambiguous). 

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Gjetani required stitches. And on the third and fourth occasions, which 

occurred on the same day, the death threats were expressly tied to Gjetani’s 

vote for the political party of his choice. Gjetani repeatedly attempted to seek 

protection from law enforcement, but each time the police refused, citing his 

political affiliation.

We have indeed stated that persecution “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.” Eduard v. Ashcroft, 379 F.3d 182, 187 n.4 (5th Cir. 2004) (citation 

omitted). But Gjetani’s treatment was not isolated or unaccompanied by 

physical punishment, and it was more severe than what this court has 

identified as persecution in past cases. For instance, in Tamara-Gomez v. 

Gonzales, 447 F.3d 343, 348 (5th Cir. 2006), which the majority discusses, we 

found that the IJ had erred in determining that the petitioner had not 

established persecution based on repeated credible death threats and 

vandalism to his home. Unlike the present case, the petitioner had not 

suffered physical harm that would corroborate the death threats. See id. 

Gjetani has indisputably suffered greater harm to his person than the 

petitioner in Tamara-Gomez, and the treatment should likewise qualify as 

persecution.

Because a rebuttable presumption of future persecution is created 

when a petitioner establishes past persecution, see 8 U.S.C. § 208.13(b)(1), 

the remainder of the BIA’s reasoning cannot stand. Accordingly, I 

respectfully dissent.

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