Aleksander Nilaj, a/k/a Roberto Alpi; MIRE PRELDAKAJ, a/k/a Sabina Alpi v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-3497
ALEKSANDER NILAJ,
a/k/a Roberto Alpi;
MIRE PRELDAKAJ,
a/k/a Sabina Alpi,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency Nos. A97-529-652; A97-529-653)
Immigration Judge: Dorothy Harbeck
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 23, 2009
Before: BARRY, STAPLETON and NYGAARD, Circuit Judges
(Opinion filed: January 15, 2010)
OPINION
___________
PER CURIAM
Petitioners Aleksander Nilaj and Mire Preldakaj, husband and wife, seek review of

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Nilaj is the lead petitioner, and we thus will refer primarily to him throughout our1
Opinion.
The Visa Waiver Program (“VWP”) is an expedited admission procedure that allows2
visitors from certain designated countries to enter the United States for up to ninety days
without a non-immigrant visa if they meet certain requirements. See 8 U.S.C. § 1187(a);
8 C.F.R. § 217.2(a). The VWP is not limited to aliens who are actually nationals of the
designated countries, but also includes individuals, like Nilaj and Preldakaj, who present
fraudulent travel documents from such countries. See 8 C.F.R. § 217.4. In exchange for
admission under the VWP, applicants must waive any right to administrative or judicial
review of an immigration officer’s determination as to admissibility, and any right to
contest their removal after admission, except on the basis of an application for asylum.
See 8 U.S.C. § 1187(b).
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the Board of Immigration Appeals’ (“BIA”) final order dismissing their appeal of the
Immigration Judge’s (“IJ”) denial of asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). We will deny the petition.
I.
Nilaj and Preldakaj are natives and citizens of Albania. In October 2006, they1
attempted to enter the United States pursuant to the Visa Waiver Program by presenting2
fraudulent passports, whereupon they requested asylum and withholding of removal based
on past political persecution and fear of future persecution, as well as relief under the
CAT. After a credible fear interview, the Department of Homeland Security commenced
asylum-only proceedings by filing a Notice of Referral with the immigration court.
At an October 2007 immigration hearing, Nilaj testified that he began supporting
the Democratic Party of Albania in 1990, but that he did not become a registered party
member until 1991. In December 1990, he participated in a protest in the city of Shkoder

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to remove a statue of Stalin. In an effort to disperse the crowd, police began beating
protestors with rubber sticks and Nilaj sustained an injury to his back. In March 1992, the
Democratic Party won the national election. Following the election, Nilaj testified that he
did not experience any further problems until 1997, when the Socialist Party gained
power in the national election. Nilaj testified that he began to receive threats and was
publicly warned to leave the Democratic Party. In April 1999, during a political rally in
which Nilaj participated, police began shooting into the crowd and Nilaj sustained a gun
shot wound to his finger. Following that incident, Nilaj continued to receive threats
warning him to leave the Democratic Party.
In December 1999, he left Albania for the United Kingdom seeking political
asylum. After being denied asylum in the United Kingdom, Nilaj returned to Albania in
2004 and resumed participating in the activities of the Democratic Party. Nilaj testified
that in July 2005, shots were fired into his home. No one was injured. Although he
reported the incident to police, they refused to take action. In July 2005, the Democratic
Party won the national election and Nilaj testified that he did not experience any harm for
nearly a year. However, in May 2006, while returning home alone, four individuals
attacked him. Although Nilaj could not identify his attackers, he recalled them telling
him to leave the country, threatening to kidnap his wife, and calling him a “Democratic
Pig.” Nilaj’s sustained a head wound during the attack, but did not seek medical attention
or contact the authorities. Nilaj testified that this incident prompted him to leave Albania

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and seek asylum in the United States. He did not leave Albania until September 2006,
however, and admitted that he did not receive any additional threats prior to leaving.
Dr. Bernd Fischer, a professor of Balkan history at Indiana University and an
expert on country conditions in Albania, testified on Nilaj’s behalf as well as submitted
an affidavit into the record. Dr. Fischer testified that he did not think it was a real
possibility that Nilaj could return to his native town of Vulkil and that he would have a
hard time remaining inconspicuous. Dr. Fischer also testified that he believed that
Democratic Party members are still at risk for harm in Albania, despite the party’s
election to power, as members continue to be attacked. He also described the Albanian
police as corrupt because many were hired during Socialist control of the country.
The IJ determined that Nilaj testified credibly, but nonetheless found that based on
the evidence presented, he was unable to conclude that Nilaj suffered past persecution in
Albania. In addition, the IJ determined that conditions in Albania had changed such that
Nilaj did not have a well-founded fear of persecution if he were to return.
Nilaj appealed the IJ’s decision to the BIA and, in a July 2008 opinion, the BIA
dismissed Nilaj’s appeal. The BIA determined that even if Nilaj had demonstrated past
persecution, the Government demonstrated changed conditions such that Nilaj does not
have a well-founded fear of future persecution. Specifically, the BIA found that the 2005
State Department Country Report submitted by the Government did not indicate any
increased level of violence against members of the Democratic Party of Albania.

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Furthermore, the Country Report observed that the 2005 elections have aided in Albania’s
democratic development. This petition for review followed.
II.
We exercise jurisdiction to review the BIA’s final order of removal under
Immigration and Nationality Act (“INA”) § 242(a) [8 U.S.C. § 1252(a)]. Because the
BIA provided its own analysis, we review the decision of the BIA. See Lukwago v.
Ashcroft, 329 F.3d 157, 166 (3d Cir. 2003). We use a substantial evidence standard to
review factual findings. Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d Cir. 2003). Under
the substantial evidence standard, findings are upheld “unless the evidence not only
supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 484
(3d Cir. 2001).
An applicant may demonstrate eligibility for asylum by showing either past
persecution or a well-founded fear of future persecution on account of race, religion,
nationality, membership in a particular social group, or political opinion.
See INA § 101(a)(42)(A) [8 U.S.C. § 1101(a)(42)(A)]. Significantly, “persecution
connotes extreme behavior, including threats to life, confinement, torture, and economic
restrictions so severe that they constitute a threat to life or freedom.” Ahmed v. Ashcroft,
341 F.3d 214, 217 (3d Cir. 2003) (quotations omitted). It “does not include all treatment
that our society regards as unfair, unjust, or even unlawful or unconstitutional.” Id.
Nilaj contends that the IJ and BIA erred in concluding that he failed to demonstrate

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past persecution or a well-founded fear of future persecution. He first presents significant
argument that the threats and violence that he experienced in Albania, both in the years
before he left for the United Kingdom and after he returned in 2004, when taken together,
rise to the level of past persecution. However, even if we were to agree, we find that
substantial evidence supports the BIA’s determination that even assuming past
persecution, any presumption of a well-founded fear of future persecution is rebutted by a
fundamental change in Albania’s country conditions. See 8 C.F.R. § 1208.13(b)(1)(i)
(even if past persecution has been established, asylum can still be denied if “[t]here has
been a fundamental change in circumstances such that the applicant no longer has a
well-founded fear of persecution in the applicant’s country of nationality . . . on account
of . . . political opinion.”).
As mentioned, in rendering its decision that Nilaj does not have a well-founded
fear of future persecution, the BIA relied primarily on the Government’s presentation of
the 2005 State Department Country Report for Albania. The BIA noted that the Country
Report specifically observed that the 2005 election of the Democratic Party to power was
“a step forward in the country’s democratic development.” (See Administrative Record
3.) Furthermore, even though Dr. Fischer opined that police corruption still persists in
Albania, the County Report indicates that progress is being made in retraining police and
prosecuting abuses. (Id.) Moreover, there is no indication that the Socialist party, either
through its own organization or through Government authorities, is engaged in a pattern

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Substantial evidence also supports the BIA’s finding that Nilaj could avoid future3
persecution by relocating within Albania as two of his family members continue to reside
in the country without incident. See Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005).
Although Nilaj makes the valid point that these two family members are not themselves
Democratic activists, he has not shown that he, an admitted low-level member of the
party, would be “singled out” for persecution should he relocate within the country. Id.
of “abuse or coercion” against its political opponents. (Id.) The BIA therefore
concluded that Nilaj had not established a well-founded fear of persecution.
A review of the record does not compel a contrary conclusion. See Zubeda3
v. Ashcroft, 333 F.3d 463, 477-78 ( 3d Cir. 2003) (“Country reports . . . are the most
appropriate and perhaps the best resource for information on political situations in foreign
nations.”); see also Cuko v. Mukasey, 522 F.3d 32, 40 (1st Cir. 2008) (holding that
reliance on country reports was sufficient to rebut presumption of well-founded fear of
future persecution based on support for Democratic Party in Albania). We therefore
agree with the BIA’s conclusion that Nilaj is not entitled to asylum, and as a necessary
corollary, is not entitled to withholding of removal. See Lukwago, 329 F.3d at 182.
Finally, the BIA did not err when it concluded that Nilaj had not established a basis for
relief under the CAT, as he did not demonstrate that it is more likely than not that he
would be tortured if returned to Albania.

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