FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 18, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-14017

Non-Argument Calendar

________________________

Agency Nos. A95-855-374

A95-855-375

GENTIANA MARINI, 

ROBERT MARINI, 

Petitioners, 

versus 

U.S. ATTORNEY GENERAL, 

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(June 18, 2008)

Before MARCUS, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:
The INS is now part of the Department of Homeland Security. The Homeland Security 1

Act of 2002 (“HSA”), Pub. L. 107-296, Stat. 2125 (Nov. 25, 2002). 

 Marini offered no argument concerning the denial of CAT relief on appeal to the BIA. 2

And she does not raise the issue in her petition for review. Thus, the CAT claims are unexhausted,

Fernandez-Bernal v. U.S. Att’y Gen., 257 F.3d 1304, 1317 n.13 (11th Cir. 2001), and abandoned,

Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 (11th Cir. 2005).

 Although Marini alleged persecution on account of membership in a particular social 3

group, she offered no evidence or argument on that claim. Thus, it is not properly before this court.

2

Gentiana Marini, a native and citizen of Albania, on behalf of herself and her

husband Robert, petitions this court for review of the denial of asylum and

withholding of removal. After a thorough review of the record, we deny the

petition. 

Marini and Robert arrived in the United States in 2001 but were not admitted

or paroled, and the INS issued notices to appear charging them with removability 1

under INA § 212(a)(6)(A)(i); 8 U.S.C. § 1182(a)(6)(A)(i). Marini submitted an

application for asylum, withholding of removal, and relief under the CAT,2

alleging that she had been persecuted due to her political opinion and membership

in a particular social group. Marini and her family were members of the Legality 3

Movement and Democratic Party in Albania, where Marini also worked as a

secretary. As a child, Marini was discriminated against in school. Between 1997

and 2001, she received threats, someone tossed a bomb at her home, she was

detained for several hours during which time the police officer attempted to choke
3

her, and she was struck on the leg during her brother’s arrest, resulting in a

permanent scar. 

The Immigration Judge (“IJ”) denied relief, finding that, although Marini

was credible, Marini had not established past persecution because the allegations

involved only a few incidents of harassment. The IJ further found that Marini did

not have an objectively well-founded fear of future persecution because the

country reports and other documents indicated that Albania was no longer in a state

of political upheaval, political violence ended in 1998, there was no evidence that

the Socialist Party sought retribution against its opponents and the Democratic

Party currently was active in the government. Finally, the IJ concluded that Marini

could have relocated. 

Marini appealed to the Board of Immigration Appeals (“BIA”), which

affirmed the IJ’s credibility determination and adopted the IJ’s factual findings. 

The BIA concluded that, considering the events cumulatively, Marini had not

established past persecution because the period of detention was short and there

was no significant injury. Nevertheless, the BIA found that, even if Marini

established past persecution, the government had rebutted the inference of a wellfounded fear with evidence that Marini reasonably could have relocated. Marini

now petitions this court for review. 
4

Marini argues that the BIA erred by concluding that the permanent scar she

suffered was not a serious injury and that although the BIA acknowledged that it

must consider the events cumulatively, the BIA’s conclusion shows that it failed to

do so. Marini next argues that the BIA erroneously concluded that relocation was

an option and that the BIA’s faulty conclusion on relocation also led to the

erroneous decision that Marini failed to establish a well-founded fear of future

persecution. 

We review only the decision of the BIA, except to the extent that it expressly

adopts the opinion of the IJ. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.

2001). Factual determinations are reviewed under the substantial evidence test,

and we “must affirm the BIA’s decision if it is supported by reasonable,

substantial, and probative evidence on the record considered as a whole.” Id.

(internal quotation omitted). A finding of fact will be reversed “only when the

record compels a reversal; the mere fact that the record may support a contrary

conclusion is not enough to justify a reversal of the administrative findings.” 

Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc). “Under this

highly deferential standard of review, denial of relief may be reversed only if the

evidence would compel a reasonable fact finder to conclude that the requisite fear

of persecution exists.” Delgado v. U.S. Att’y Gen., 487 F.3d 855, 860 (11th Cir.
5

2007). Legal determinations are reviewed de novo. Ruiz v. U.S. Att’y Gen., 440

F.3d 1247, 1254 (11th Cir. 2006). 

To be eligible for asylum, an applicant must prove that she is a “refugee”

within the meaning of the INA. 8 U.S.C. § 1158(b)(1)(A); see generally Sanchez

Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1231-32 (11th Cir. 2007). A “refugee”

is defined, in relevant part, as:

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 persecution on account of race,

religion, nationality, membership in a particular social group, or

political opinion.

8 U.S.C. § 1101(a)(42)(A). 

An applicant can prove refugee status in one of two ways: by demonstrating

past persecution or fear of future persecution. 8 C.F.R. § 208.13(b). To establish

asylum based on past persecution, the applicant must prove (1) that she was

persecuted, and (2) that the persecution was on account of a protected ground. 8

C.F.R. § 208.13(b)(1); Sanchez Jimenez, 492 F.3d at 1232. In addition to

providing an independent avenue for asylum eligibility, 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); Sanchez Jimenez, 492 F.3d at 1232 (citing

Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005)). The
6

applicant’s presumptively well-founded fear of future persecution may be rebutted

by the government if the government shows, by a preponderance of the evidence,

inter alia, that the applicant could avoid future persecution by relocating within the

country if, “under all the circumstances, it would be reasonable to expect the

applicant to do so.” 8 C.F.R. § 208.13(b)(1)(i); Arboleda v. U.S. Att’y Gen., 434

F.3d 1220, 1223 (11th Cir. 2006).

If the applicant fails to demonstrate past persecution, an applicant may still

establish asylum based upon proof of a well-founded fear of future persecution. 8

C.F.R. § 208.13(b)(2). The applicant may prove eligibility by demonstrating (1) a

subjectively genuine and objectively reasonable fear of persecution that is (2) on

account of a protected ground. 8 C.F.R. § 208.13(b)(2)(i); Sanchez Jimenez, 492

F.3d at 1232. “‘The subjective component is generally satisfied by the applicant’s

credible testimony that he or she genuinely fears persecution.’” Sanchez Jimenez,

492 F.3d at 1232 (quoting Al Najjar, 257 F.3d at 1289). The objective prong can

be fulfilled by establishing that the applicant “has a good reason to fear future

persecution.” Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir. 2006). 

Once the applicant makes an initial showing of fear of future persecution, the

government may rebut the applicant’s evidence by demonstrating, based upon a

preponderance of the evidence, that the applicant could avoid future persecution by
7

relocating within the country if, “under all the circumstances, it would be

reasonable to expect the applicant to do so.” 8 C.F.R. § 208.13(b)(2)(ii).

This court has said that “‘persecution is an extreme concept, requiring more

than a few isolated incidents of verbal harassment or intimidation, and that mere

harassment does not amount to persecution.’” Sanchez Jimenez, 492 F.3d at 1232

(quoting Sepulveda, 401 F.3d at 1231); see also Silva v. U.S. Att’y Gen., 448 F.3d

1229, 1237 (11th Cir. 2006) (concluding that a written death threat alone did not

compel a finding of past persecution). This court has also rejected a rigid

requirement of physical injury, making clear in Sanchez Jimenez that “attempted

murder is persecution,” regardless of whether the petitioner was injured and even if

the attack is unsuccessful. 492 F.3d at 1233; see also Mejia v. U.S. Att’y Gen.,

498 F.3d 1253, 1257-58, 1257 n.7 (11th Cir. 2007) (extending the rule in Sanchez

Jimenez to other projectiles such as rocks). “In assessing past persecution [this

court is] required to consider the cumulative impact of the mistreatment the

petitioner [ ] suffered.” Mejia, 498 F.3d at 1258; Delgado v. U.S. Att’y Gen., 487

F.3d 855, 861 (11th Cir. 2007) (citing Ruiz, 479 F.3d at 766); Ruiz v. Gonzales,

479 F.3d 762, 766 (11th Cir. 2007) (holding that the cumulative effect of a beating,

threatening phone calls, and a kidnaping constituted persecution). Thus, even

though each instance of mistreatment, when considered alone, may not amount to
8

persecution, the record may still compel a finding of past persecution when

considered as a whole. Delgado, 487 F.3d at 861.

Upon review of the record, we conclude that the record compels the

conclusion that Marini established past persecution. Marini suffered mistreatment

based on her family’s political views from the time she was a child. As an adult,

she worked for both the Legality Movement Party and the Democratic Party,

opposing the Communist regime. Over a period of four years, she received threats,

was arrested during a political rally, and was choked by a police officer. Her

family received threats against Marini and her brother. Her house was bombed,

although no one was injured. Marini was present when her brother was arrested

and was struck in the leg, resulting in an injury that left a scar. Finally, police

conducted a search of her home, looking for Marini, during which they pushed

Marini’s mother and struck her father. During these incidents, the police made

comments about Marini’s and her family’s political views. When compared to

other cases from this court, these incidents are sufficient to establish past

persecution. See Sanchez Jimenez, 492 F.3d at 1233; Mejia, 498 F.3d at 1257-58;

Ruiz, 479 F.3d at 766. 
 The Supreme Court has instructed that, when the IJ or BIA has not made findings of fact 4

or has not applied the law to those facts, appellate courts should remand to allow the IJ to make such

determinations in the first instance. See INS v. Ventura, 537 U.S. 12, 16-17, 123 S.Ct. 353, 154

L.Ed.2d 272 (2002); see also Gonzales v. Thomas, 547 U.S. 183, 126 S.Ct. 1613, 1615, 164 L.Ed.2d

358 (2006). And the general practice in this circuit is to remand when the IJ or BIA fails to make

“adequate findings” or give “reasoned consideration” to all the evidence. Mezvrishvili v. U.S. Att’y

Gen., 467 F.3d 1292, 1297 (11th Cir. 2006); Antipova v. U.S. Att’y Gen., 392 F.3d 1259, 1265 (11th

Cir. 2004). Contrary to Marini’s argument, remand on this issue is not necessary. Both the BIA and

the IJ adequately explained the reasons for the conclusions that relocation was an option. Therefore,

the issue is properly before this court for appellate review.

9

Assuming that Marini established past persecution, the government asserts 4

that there is evidence to rebut the presumption of a well-founded fear of future

persecution by showing it was reasonable for Marini to relocate. 

The BIA has construed the regulations to require that an asylum applicant

show that she faces a threat of future persecution country-wide. Matter of Acosta,

19 I. & N. Dec. 211, 235 (BIA 1985); see also Mazariegos v. U.S. Att’y Gen., 241

F.3d 1320, 1327 (11th Cir. 2001) (upholding the imposition of a “country-wide”

requirement, and noting that “it is not unreasonable to require a refugee who has an

internal resettlement alternative in [her] own country to . . . establish that such an

option is unavailable.”). Thus, in determining whether relocation is an option, the

IJ must consider whether “under all the circumstances it would be reasonable to

expect the applicant [to relocate].” 8 C.F.R. § 1208.13(b)(2)(ii); see also 8 C.F.R.

§ 1208.13(b)(1)(i)(B). There are several considerations relevant to the

“reasonableness” determination, including: 
10

whether the applicant would face other serious harm in the place of

suggested relocation; any ongoing civil strife within the country,

administrative, economic or judicial infrastructure; geographical

limitations; and social and cultural constraints, such as age, gender,

health, and social and familial ties.

8 C.F.R. § 1208.13(b)(3); Sepulveda, 401 F.3d at 1232 n.7 (considering, inter alia,

the large numbers of internally displaced people – and the resulting lack of access

to health care, education, or employment – in concluding that relocation within

Colombia was not reasonable). 

Upon review, we conclude the BIA properly determined that relocation was

a reasonable option under the facts of this case and given the reasonableness

considerations set forth in the federal regulations. According to the evidence in the

record, the Democratic Party currently holds a number of seats in the parliament

and, together with the Socialist Party, makes up the majority. The most recent

elections have shown an improvement in political conditions with only isolated

incidents of violence. In recent years, according to the reports, police officials who

engaged in misconduct have been disciplined, demonstrating that it was unlikely

Marini would have an objectively reasonable fear of the police. And nothing in the

record indicates that local police would look or have been looking for Marini.

At the removal hearing, Marini testified that she had lived in Berat and

Tirana while working for the Democratic and Legality Movement parties, and there

was no evidence that she experienced any threats or difficulties while in those
 Because Marini cannot establish eligibility for asylum relief, she cannot meet the more 5

stringent burden for withholding of removal. Zheng v. U.S. Att’y Gen., 451 F.3d 1287, 1292 (11th

Cir. 2006).

11

cities. Thus, contrary to Marini’s claims, the issue of relocation was addressed at

the hearing. And at no time did the IJ or the BIA shift the burden of proof with

respect to relocation to Marini. Accordingly, the government has rebutted the

presumption that she would suffer future persecution. 

Even if Marini was not entitled to relief under a theory of past persecution,

she still may be entitled to relief if she can establish that she had a well-founded

fear of future persecution. Marini’s credible testimony is sufficient to establish the

subjective prong. Sanchez Jimenez, 492 F.3d at 1232. The question is whether her

well-founded fear was objectively reasonable. For the reasons discussed above,

Marini cannot show an objectively reasonable fear. Thus, Marini is not entitled to

relief on the theory that she has a well-founded fear of future persecution.5

The petition is DENIED.