Of the Federal Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 06-2016

NATASHA BABANI, ET AL.,

Petitioner,

v.

ALBERTO R. GONZALES,

Attorney General of the United States,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER

OF THE BOARD OF IMMIGRATION APPEALS

Before

 Torruella, Newman, and Lynch, *

Circuit Judges.

Susanna L. Shafer, Daniel F. Cashman, and Cashman & Lovely,

P.C. on brief for petitioner.

Benjamin J. Zeitlin, Trial Attorney, Office of Immigration

Litigation, Peter D. Keisler, Assistant Attorney General, and Greg

D. Mack, Senior Litigation Counsel, Office of Immigration

Litigation, on brief for respondent.

June 22, 2007
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PER CURIAM. On June 8, 2006, the Board of Immigration

Appeals (BIA) adopted and affirmed the decision of an Immigration

Judge (IJ) rejecting the claims of Natasha Babani (and,

derivatively, her husband) for asylum, withholding of removal to

Albania, and relief under the Convention Against Torture (CAT).

In an oral decision delivered on February 8, 2005, the IJ

found that Babani had not met her burden of showing past

persecution or a well-founded fear of persecution on account of

political opinion. Further, the IJ found that in light of the

couple's repeated voluntary returns to Albania since the 1997

assumption of power by the Socialist Party, they had not shown that

they had any real fear of returning to Albania. As a result, the

IJ ordered Babani removed to Albania.

The BIA upheld the IJ's denial of relief. The BIA held

that no clear error had been shown in the IJ's partial adverse

credibility finding that the accounts of Babani and her husband

were inherently implausible as to why police in Albania under a

new, noncommunist political regime would have any interest in

harming them after the former communist regime was ousted in the

early 1990s. As to the events that occurred under the more recent

socialist regime in Albania, the BIA held that the Babanis had not

demonstrated clear error in the IJ's finding that even if the

Babanis had been credible in their factual accounts of several

incidents of mistreatment by police, they had not demonstrated that
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these events were on account of one of the grounds protected under

the Immigration and Nationality Act. Finally, the BIA affirmed the

finding that Babani had not shown that she or her spouse would be

tortured upon return to Albania. Thus, the IJ's order of removal

was affirmed.

Babani timely petitioned for review of the denial of

relief. We deny the petition for judicial review.

I.

Babani was admitted to this country on a B-2 nonimmigrant visa in 2000 and overstayed. She did not seek asylum

upon her entry to the country. Rather, she waited until she was

served with a removal notice. Removal proceedings began on October

9, 2002. 

To establish eligibility for asylum, an alien must

demonstrate that she is a "refugee." 8 U.S.C. § 1158(b)(1)(A). To

do so, the alien must show that she has been persecuted or that she

reasonably fears persecution "on account of race, religion,

nationality, membership in a particular social group, or political

opinion." Id. § 1101(a)(42)(A); see also Mukamusoni v. Ashcroft,

390 F.3d 110, 119 (1st Cir. 2004). The alien bears the burden of

proof for establishing eligibility for asylum. 8 U.S.C.

§ 1158(b)(1)(B)(i). An applicant who has established that she has

suffered persecution in the past is "presumed to have a

well-founded fear of persecution on the basis of the original
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claim." 8 C.F.R. § 208.13(b)(1); see also El Moraghy v. Ashcroft,

331 F.3d 195, 203 (1st Cir. 2003); Fergiste v. INS, 138 F.3d 14, 18

(1st Cir. 1998).

To qualify for withholding of removal, an alien must

demonstrate that upon return to her home country, she is more

likely than not to face persecution on account of a protected

ground. Silva v. Gonzales, 463 F.3d 68, 72 (1st Cir. 2006).

Normally, we review the decision of the BIA, but when the

BIA adopts the opinion of the IJ, we review the IJ's opinion as if

it were that of the BIA. Romilus v. Ashcroft, 385 F.3d 1, 5 (1st

Cir. 2004). Whether or not an alien has met her burden is a

factual determination that we review under the deferential

substantial evidence standard. See Estrada-Canales v. Gonzales,

437 F.3d 208, 215 (1st Cir. 2006). We will uphold the agency's

factual determinations "unless any reasonable adjudicator would be

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

Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120, 123 (1st Cir. 2005).

A brief discussion of the record suffices. The IJ

accepted as credible Babani's testimony that during the communist

regime she had been persecuted as the daughter of a military

official who was suspected of being involved in an anticommunist

effort. In 1976, Babani's father died while in prison. Babani and

the rest of her family were then sent into exile at labor camps

around the country. In 1990, after democratic reforms, Babani
Babani relies on Cordero-Trejo v. INS, 40 F.3d 482 (1st 1

Cir. 1994), to support her second argument. The case lends her no

support. In Cordero-Trejo, the IJ had found the petitioner not

credible because his testimony was "rife with inconsistencies and

implausibilities." Id. at 488. We reviewed the record and

determined that substantial evidence did not support such a

finding. Id. at 491. We did not hold, as Babani seems to suggest,

that the plausibility of testimony regarding an alleged

persecutor's motives can never be relevant to a credibility

determination. Rather, we reasoned that the IJ's adverse

credibility determination regarding the petitioner's testimony with

respect to his supposed persecutor's motives was explicitly refuted

by the record. Id. at 489.

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returned from exile. After the election that brought the

Democratic Party to power in 1992, she fared well. She testified

that the situation changed when the Socialist Party seized power in

1997. She relies on an attack on her son in July 1997, the beating

of her husband by the Chief of Police in March 2000, and an April

2000 search of their home, in which she fended off a rape. The IJ

found that Babani's testimony with respect to the 1997 and 2000

events was not credible.

Babani's two main arguments are that (1) the IJ's partial

adverse credibility determination is not supported by substantial

evidence, and (2) the IJ has confused the issue of her credibility

with the issue of whether she met her burden of associating any of

the post-1997 events with her political opinion.

Both of Babani's arguments are misapplied because even if

we found error in the IJ's partial adverse credibility

determination, Babani still would not be entitled to relief. The 1

IJ found that even if the recounting of the 1997 and 2000 events
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were credible, Babani had not met her burden of showing that the

events were on account of any of the five statutory factors.

Indeed, the only "evidence" Babani offered was her belief that the

events were so motivated.

Babani's argument is that her belief was reasonable and

so had to be accepted unless the IJ presented a rational

alternative explanation. As a matter of law this argument is

incorrect. Babani bore the burden of proof, and she offered no

evidence of a connection between the mistreatment and her political

beliefs but her own opinion. See INS v. Elias-Zacarias, 502 U.S.

478, 483 (1992) ("[S]ince the statute makes motive critical, [the

petitioner] must provide some evidence of [his persecutors'

motives], direct or circumstantial."); see also, e.g., Romilus, 385

F.3d at 7 (holding that the petitioner had failed to establish past

persecution on account of a protected ground where there was no

evidence of the persecutors' motives); Khalil v. Ashcroft, 337 F.3d

50, 55 (1st Cir. 2003) (holding that the petitioner had failed to

establish persecution on account of religion because his "theory as

to why [he was mistreated] [was] just that: a theory. He

present[ed] no evidence other than his own speculation to link the

[mistreatment] to his faith"). 

Moreover, even if we viewed Babani's testimony -- for

example, that the police told her son that his kind should go back

to the concentration camps, or that the Chief of Police was the son
To be clear, a competing inference need be no more 2

specific than that the alleged persecution was not motivated by a

protected ground. See 8 U.S.C. § 1158(b)(1)(B)(i) (placing the

burden of proof for establishing eligibility for asylum on the

alien).

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of a man who had been involved in the death of her father -- as

allowing an inference that the attacks on the Babanis were

politically motivated, the IJ's choice among reasonable inferences

cannot be deemed erroneous. Aguilar-Solis v. INS, 168 F.3d 565, 2

571 (1st Cir. 1999); see also Romilus, 385 F.3d at 7. The record

offers adequate support for the IJ's skepticism that what befell

Babani's family was on account of her political opinion. 

According to Babani's own characterization, she was

"virtually non-political." She attended only one rally in 1992 and

was not active in opposing the socialist regime that came to power

in 1997. In addition, Babani's son received his passport to come

to the United States a month before the 1997 assault, hardly

evidence of persecution of the family. Similarly, Babani's husband

continued to work for the government's Ministry of Tourism and

traveled extensively outside of Albania between 1997 and 1999. At

no time during this period did Babani or her husband apply for

asylum in any country to which they traveled. As to the March 2000

assault on Babani's husband, although the police allegedly screamed

at Babani and insulted his wife, they did not say anything about

the Babanis' political beliefs. Likewise, Babani's husband

admitted that they were not singled out when the police came to
Babani's brief advances no arguments regarding the CAT, 3

and so we deem her CAT claim waived. See United States v. Zannino,

895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in a

perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived."). Even had it been preserved,

the CAT claim would fail, as the IJ's denial of relief is supported

by substantial evidence.

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their home in April 2000. Rather, the police were searching all

houses in Tirana for illegal weapons. 

There was also evidence of motive, unrelated to these

events, to emigrate to the United States. Both of the Babanis'

children are here. Babani's husband testified to a desire to enter

the United States to be with their children, even before some of

the events in question.

Because Babani's asylum claim fails, her application for

withholding of removal necessarily fails as well. Bollanos v.

Gonzales, 461 F.3d 82, 86 (1st Cir. 2006); Mediouni v. INS, 314

F.3d 24, 27 (1st Cir. 2002).3

We deny the petition for review.