NOT RECOMMENDED FOR PUBLICATION

File Name: 07a0109n.06

Filed: February 8, 2007

No. 06-3075

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

SHKELQIM KAMBE GOXHAJ,

Petitioner,

v.

ALBERTO GONZALES, Attorney General,

Respondent.

On Appeal from the

Immigration Board of

Appeals

 /

Before: GUY, SUHRHEINRICH, and GRIFFIN, Circuit Judges.

PER CURIAM. Petitioner is an illegal immigrant from Albania. The former

Immigration and Naturalization Service (INS)—now part of the Department of Homeland

Security—initiated removal proceedings against petitioner. Petitioner responded by

requesting asylum, withholding of removal, protection under the Convention Against Torture

(CAT), and voluntary departure. The Immigration Judge denied petitioner’s requests, and

on December 23, 2005, the Board of Immigration Appeals affirmed without opinion.

Petitioner appeals and argues that he should be permitted to remain in the United States

because he has a well-founded fear of persecution if he is removed to Albania. For the

following reasons, we deny the petition for review.
No. 06-3075 2

I.

A. Facts

Petitioner offered the following testimony at his removal hearing in Cincinnati.

Petitioner was born in Albania in 1968. His father and sister were arrested when he was six

years old. His cousin was later arrested for political reasons and, in 1985, another cousin was

shot and killed at the Albanian border. At the age of 15, petitioner applied to attend a soccer

school, which had been his lifelong dream, but his application was denied. When he turned

eighteen, petitioner was placed in military service for two years.

On December 26, 1990, petitioner and some friends had just completed a game of

soccer in petitioner’s hometown when they decided to go downtown to relax. As petitioner

arrived in the downtown area, police began to arrive in riot gear, and a large crowd of

people—approximately 1,500—gathered in the area. The people had gathered to protest the

police and demand that the government give up power. The police began beating people and

using plastic bullets to break up the crowd. Petitioner was struck in the head, causing him

to fall down and rendering him unconscious. When he awoke, he was being transported to

a military hospital. At the hospital, he was handcuffed and was held in custody there with

approximately 200 other people from the riot. After three days at the hospital, where he

received no medical treatment, petitioner was released when a group of townspeople attacked

the hospital and freed the prisoners.

Upon his release, petitioner was afraid to return home, so he and a friend decided to

walk to the Greek border. Petitioner and his friend were fired upon by an Albanian soldier
No. 06-3075 3

as they crossed the border—petitioner explained that it was routine for Albanian soldiers to

fire upon people crossing the border—but he and his friend made it safely to Greece.

For the next ten years, petitioner lived in Greece at his father-in-law’s house. He

worked fairly regularly, but had no legal status and was occasionally forced to pay bribes in

order to prevent being sent back to Albania. In January of 2001, petitioner obtained a false

passport and flew to Mexico. He soon crossed the border into Texas and came to Columbus,

Ohio to be with his sister. The INS eventually discovered petitioner in Ohio and instituted

proceedings to have him removed from the country.

At his removal hearing, petitioner additionally asserted that his friend who

accompanied him from Albania into Greece eventually returned to Albania in 1997 or 1998

to attend his sister’s wedding. Petitioner’s friend was gunned down in front of his house by

men wearing masks. Petitioner was told by his father that his friend was killed by an

organization called BRISK, a secret paramilitary organization of the Albanian government.

Members of BRISK also came to petitioner’s house shortly after the 1990 riot in order to

collect photographs and other personal effects of petitioner. Petitioner asserts that the

situation in Albania is almost the same as it was before the 1990 riot.

B. Immigration Judge’s Decision

After recounting petitioner’s removal hearing testimony, the immigration judge

applied the facts of petitioner’s case to the law regarding asylum. The judge first considered

whether petitioner’s testimony was credible, and concluded that it was. The judge then

considered whether, by his testimony, petitioner had carried his burden of establishing that
No. 06-3075 4

he had suffered from past persecution on account of his political opinions or that petitioner

had a well-founded fear of future persecution. Despite accepting the credibility of

petitioner’s testimony, the immigration judge nevertheless concluded that petitioner had not

experienced past persecution based on his imputed political opinions. The judge explained

that the injuries petitioner incurred from the 1990 riot were a result of the generalized

violence of the riot in petitioner’s hometown and not as a result of past persecution directed

toward petitioner because of his political opinions or imputed political opinions. Instead, the

judge viewed petitioner’s injuries as the result of being “in the wrong place at the wrong

time.”

The judge also considered whether the shooting incident at the Albanian-Greece

border was evidence of past persecution. The judge determined that this incident did not

constitute past persecution because the incident merely reflected that it was dangerous for

anyone to cross the Albanian border at this time. Accordingly, the judge did not view this

as evidence of past persecution directed at petitioner.

Next, the judge considered whether petitioner had a well-founded fear of future

persecution. The judge accepted petitioner’s assertion that the same governmental leaders

that were in charge of Albania when petitioner left in 1990 are still in charge today. The

judge determined that petitioner may have a subjective fear of returning due to his friend’s

death and his fear of BRISK, but that there was no objective evidence that the Albanian

government would seek to harm petitioner. The judge noted that petitioner was not able to

explain why his friend was killed by BRISK or whether his friend’s death was linked to his
No. 06-3075 5

role in the 1990 riot. Furthermore, the judge noted that members of BRISK had not been to

petitioner’s house in 14 years and that there was no evidence that BRISK was continuing to

target petitioner or his family for persecution. Accordingly, the immigration judge concluded

that petitioner had no objective basis for fearing persecution.

For these reasons, the judge concluded that petitioner had not established eligibility

for asylum. Based on this finding, the judge also concluded that petitioner could not meet

the higher burden of proof to establish withholding of removal and that this request should

also be denied. Next, the immigration judge concluded that petitioner had presented no

testimony at all regarding the fear of torture and that petitioner’s claim under the Convention

Against Torture similarly must fail. Finally, the immigration judge denied petitioner’s

request for voluntary departure.

C. Board of Immigration Appeals

Petitioner timely appealed the immigration judge’s decision to the Board of

Immigration Appeals (BIA). On December 23, 2005, the Board affirmed without opinion

the immigration judge’s decision.

II.

A. Standard of Review

The Board of Immigration Appeal’s determination that petitioner was not eligible for

asylum must be upheld if “supported by reasonable, substantial, and probative evidence on

the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (internal

quotation marks and citation omitted). “It can be reversed only if the evidence presented by
No. 06-3075 6

[petitioner] was such that a reasonable factfinder would have to conclude that the requisite

fear of persecution existed.” Id. The Supreme Court elaborated that to reverse the BIA

finding, the court must find that the evidence not only supports a finding of persecution, but

compels it—and that the evidence also compels that petitioner had a well-founded fear that

he would be persecuted because of his political opinion. Id. n.1. A reviewing court may not

reverse merely because it would have decided the case differently. See Singh v. Ashcroft, 398

F.3d 396, 404 (6th Cir. 2005). Finally, where the BIA affirms the immigration judge’s

decision without opinion, “we review the [immigration judge’s] decision as the final agency

decision.” Hassan v. Gonzales, 403 F.3d 429, 433 (6th Cir. 2005) (internal quotation marks

and citation omitted).

B. Asylum

The Supreme Court stated the standard for granting asylum in I.N.S. v. Elias-Zacarias:

Section 208(a) of the Immigration and Nationality Act [INA], 8 U.S.C.

§ 1158(a), authorizes the Attorney General, in his discretion, to grant asylum

to an alien who is a “refugee” as defined in the Act, i.e., an alien 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.” § 101(a)(42)(A),

8 U.S.C. § 1101(a)(42)(A).

502 U.S. at 481 (1992). In United States v. Cardoza-Fonseca, the Supreme Court explained

that the well-founded-fear standard includes both a subjective and an objective component,

and also that the standard is less than a “more likely than not” standard. 480 U.S. 421, 431

(1987). Petitioner argues that the immigration judge failed to properly apply the legal

standard for asylum. We disagree.
No. 06-3075 7

The immigration judge considered petitioner’s testimony and determined that

petitioner was credible. The judge then applied the facts of petitioner’s case to the proper

legal standard for asylum and concluded that petitioner’s testimony did not support a finding

either of past persecution or of a well-founded fear of future persecution. The judge

explained that petitioner exhibited a subjective fear of being persecuted if he returns to

Albania, but that the limited facts presented in petitioner’s testimony, without further

evidence of persecution directed at petitioner, did not sufficiently support a finding of a wellfounded fear of persecution. See Liti v. Gonzales, 411 F.3d 631, 640 (6th Cir. 2005) (“While

recognizing that corroboration is not required, we have also stated that even if the applicant

is credible, ‘[t]he absence of [reasonably available] corroborating evidence can lead to a

finding that an applicant has failed to meet her burden of proof.’”) (citations omitted)

(alterations in original). We have considered petitioner’s testimony and the appropriate legal

standards for asylum, and we find that the district court’s decision to deny asylum was

supported by substantial evidence from the record.

C. Withholding of Removal

As to petitioner’s request for withholding of removal, the immigration judge

concluded that “[b]ecause [petitioner] has not satisfied the lower burden of proof for asylum

the Court finds that [petitioner] has not established his higher burden of proof for

withholding of removal . . . .” We agree.
No. 06-3075 8

D. Convention Against Torture (CAT) and Voluntary Departure

Petitioner devoted his brief to the issue of asylum and did not present any additional

arguments as to how the immigration judge erred in denying petitioner’s CAT claim or

request for voluntary departure. We have reviewed the immigration judge’s analysis of these

issues and find both that the analysis was supported by substantial evidence and was without

error.

The petition for review is DENIED.