Mehmeti v. Holder, No. 08-15865 (11th Cir. June 25, 2009) 

Dubina, Kravitch, and Pryor (per curiam) 

Ritvan Mehmeti, a native and citizen of Albania, appealed the IJ’s decision denying his application for asylum, withholding of removal and protection under CAT.  The BIA affirmed. 

In his PFR, Mehmeti argued the following: (1) the IJ erred when it found that Mehmeti did not have a well-founded fear of persecution because the country conditions in Albania had changed, (2) the IJ should not have relied solely on U.S. Department of State reports to make that determination, (3) the BIA should not have denied his asylum request based solely on the severity of his part persecution, and (4) the BIA failed to show that, if returned to Albania, Mehmeti would less likely than not be tortured. 

The Court noted that while “[a]n applicant who has demonstrated past persecution is presumed to have a well-founded fear of future persecution,” this presumption “can be rebutted by a showing that ‘[t]here has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution’ or the applicant could avoid future persecution by relocating to another part of the applicant’s country of nationality.”  Without citing the record or the BIA’s opinion, the Court concluded that “substantial evidence supports the BIA’s determination that changed country conditions in Albania negated the presumption that Mehmeti had a well-founded fear of persecution in Albania.” 

Next, the Court examined Mehmeti’s claims based on “humanitarian asylum.”  Described in 8 C.F.R. § 1208.13(b)(1)(iii), humanitarian asylum is available to applicants without establishing a well-founded fear of future persecution if “(A) The applicant has demonstrated compelling reasons for being unwilling or unable to return to the country arising out of the severity of the past persecution; or (B) The applicant has established that there is a reasonable possibility that he or she may suffer other serious harm upon removal to that country.”  Here, the Court deferred to the BIA’s requirement that applicants for humanitarian asylum show “severe harm” and “long-lasting effects.”  According to the Court, other circuits had reserved humanitarian asylum “for the most extraordinary cases” (giving, as examples, the German Jews, survivors of the Cambodian genocide, and victims of the Chinese “Cultural Revolution”).  The Court concluded that Mehmeti had failed to show sufficiently severe past persecution with long-lasting effects. 

Finally, the Court denied Mehmeti’s CAT claim based on the BIA’s finding that he did not show that it was more likely than not that he would be tortured if returned to Albania.  The Court reasoned that “[i]f an alien cannot establish a well-founded fear of persecution, the alien also cannot establish that it is more likely than not that he will be tortured based on a protected factor.

Read opinion here.