Albert Isenaj v. Eric Holder, Jr.

Filing

Albert Isenaj v. Eric Holder, Jr.

Doc. 0

Case: 09-60480

Document: 00511213335

Page: 1

Date Filed: 08/24/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-60480 S u m m a r y Calendar August 24, 2010 Lyle W. Cayce Clerk

A L B E R T ISENAJ, P e titio n e r v. E R I C H. HOLDER, JR., U.S. ATTORNEY GENERAL, R espon dent

P e t itio n for Review of an Order of the Board of Immigration Appeals B .I .A . No. A098 282 238

B e fo r e HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges. P E R CURIAM:* A lb e r t Isenaj, a citizen of the former Serbia-Montenegro, now Kosovo, p e t it io n s for review of the Board of Immigration Appeals decision denying his a p p lic a t io n for asylum, withholding of removal, and relief under the Convention A g a in s t Torture. To reverse a factual finding by the Board, we must find the

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

*

Dockets.Justia.com

Case: 09-60480

Document: 00511213335 Page: 2 No. 09-60480

Date Filed: 08/24/2010

e v id e n c e "so compelling that no reasonable factfinder could reach a contrary c o n c lu s io n ."1 We review legal conclusions de novo.2 A s a threshold marker, an alien must exhaust all administrative remedies a v a ila b le to him as of right before this court may review a final order.3 For the fir s t time on appeal to this court, Isenaj argues that the Board used the incorrect s t a n d a r d of review and impermissibly engaged in factfinding. He has failed to e x h a u s t all administrative remedies on the issue, and we lack jurisdiction to r e v ie w it.4 I s e n a j requested asylum based on a presumption of a well-founded fear of fu t u r e persecution, citing as evidence his persecution by the Serbs. The Board c o r r e c t ly determined that the government rebutted this presumption by p r e s e n t in g evidence of a fundamental change in country conditions in Kosovo as r e c o u n t e d in the 2003 and 2005 State Department Country Reports. Isenaj does n o t have a presumption of a well-founded fear of future persecution arising from h is encounter with and threatening by masked men in 2003, as the Board has h e ld persecution must be "under government sanction." 5 I s e n a j's appeal for humanitarian asylum cannot be granted because his p a s t persecution was not particularly severe in light of the atrocities committed a t the time.6 His Convention Against Torture claim likewise fails, because he c a n n o t prove that it is "more likely than not" he will be tortured if removed.7

1

Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006). Efe v. Ashcroft, 293 F.3d 899, 903 (5th Cir. 2002). See Omari v. Holder, 562 F.3d 314, 318 (5th Cir. 2009); 8 U.S.C. § 1252(a)(1) & (d). See Omari, 562 F.3d at 320­21. Abdel-Masieh v. INS, 73 F.3d 579, 583­84 (5th Cir. 1996). See Shehu v. Gonzales, 443 F.3d 435, 440 (5th Cir. 2006). See 8 C.F.R. § 1208.16(c)(2); Efe, 293 F.3d at 907.

2

3

4

5

6

7

2

Case: 09-60480

Document: 00511213335 Page: 3 No. 09-60480

Date Filed: 08/24/2010

T h e petition for review is DENIED.

3