The opinion
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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11306
Non-Argument Calendar
____________________
ERVIN NEKAJ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A213-532-140
____________________
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2 Opinion of the Court 21-11306
Before JILL PRYOR, BRANCH, and GRANT, Circuit Judges.
PER CURIAM:
Ervin Nekaj, an Albanian citizen and native, petitions for
review of a Board of Immigration Appeals decision upholding the
denial of his applications for asylum and withholding of removal.
Nekaj alleged that he escaped political persecution in his homeland
and that he had a well-founded fear of future harm if he ever
returned. But the immigration judge hearing his case concluded
that his testimony was not credible and that even if it had been, it
did not establish that Nekaj had suffered persecution. Because
these findings were supported by substantial evidence, we deny
Nekaj’s petition for review.
I.
Nekaj entered the United States in 2019 and was issued a
notice to appear a few months later. The government’s basis for
removal was that Nekaj had not possessed the documentation
required for entry under 8 U.S.C. § 1182(a)(7)(A)(i)(I). Nekaj
admitted that he was removable. But he also filed an application
for asylum and withholding of removal based on political
persecution.1 Nekaj argued that he could not return to Albania
1 Nekaj also sought (and the immigration judge denied) relief under the
Convention Against Torture. He did not appeal that decision to the Board of
Immigration Appeals, so we do not consider it here. See Amaya-Artunduaga
v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006).
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because he “would be killed by members of the socialist party, and
the government wouldn’t do anything to protect” him.
At a hearing, Nekaj told the immigration judge that he had
suffered persecution on four separate occasions because he was a
member of the minority Democratic Party. First, he testified that
in 2013 he attended a “large gathering” of Democratic Party
members in his village. As he and his brother walked home, they
were stopped by “five militants of the Socialist Party” wearing
masks who told them to “stop supporting the Democratic Party”
or else the militants would kill them. One militant pointed a
handgun at Nekaj and his brother. The militants beat them until
they fell to the ground, “kicking and punching” the brothers while
insulting them and threatening their lives. Nekaj suffered “bruises,
cuts, and concussions” and had his wounds treated at a hospital.
Nekaj’s father attempted to report the incident the following day,
but “the police didn’t do anything” because they were
“wholeheartedly with the Socialists.” Indeed, Nekaj explained that
before this incident, the police had already told him “not to support
the Democratic Party, not to join their protests, and [to] stay away
from them.”
Nekaj next testified that he and his father were attacked
while returning home from a meeting in 2017. Four strangers
stopped them in a park and told them “not to support the
Democratic Party, not to vote for its candidates”—“not to even go
to the voting station.” The strangers also punched and kicked
them. Nekaj did not vote in the elections held two days later
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because he “believe[d] their threat was serious” and feared for his
life.
The third alleged incident was Nekaj’s arrest in February
2019 for participating in a “protest against the Socialist Party” in
front of the prime minister’s office in the capital city of Tirana.
Nekaj left the protest around noon before any violence occurred,
but around 10 o’clock that night three police officers came to his
door, asked for him by name, handcuffed him, and took him to a
police station about two hours away. The police gave no reason
for the arrest. Instead they interrogated Nekaj about the protest,
demanding that he tell them who had attended the protest, what
its purpose was, and how it had been planned. They also physically
abused Nekaj by beating him—with punches, kicks, and police
batons—everywhere but on his face. After a sleepless night with
no food or water, Nekaj was released. But the police warned him
that he needed to stop supporting the Democratic Party, and
threatened that if Nekaj “didn’t cease all [his] activities, they were
going to do worse” things to him.
Finally, Nekaj alleged that he was assaulted by four
unknown assailants in June 2019 as he walked home from a
meeting of the Democratic Party prior to the upcoming elections.
One held a knife to Nekaj’s throat as the group beat him repeatedly
until he fell to the ground and was “bleeding profusely.” As in all
the other incidents, Nekaj’s assailants verbally abused him, told
him to stop supporting the Democratic Party, and threatened to do
worse if he did not stop his political activities. After the last
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incident, Nekaj no longer attended meetings of the Democratic
Party.
Fearing for his life, Nekaj avoided going out in public for a
few months until he was able to leave Albania altogether. In
November 2019, Nekaj traveled from Europe to Mexico on a
smuggler’s boat and eventually crossed the border into the United
States. He testified that he did not apply for asylum in the countries
he passed through along the way because he always intended to
stay in the United States.
The government pressed back on some of Nekaj’s
testimony. In particular, it asked Nekaj about a yearlong trip to
Germany beginning in 2015. Nekaj responded that he went to
Germany for medical care because he could receive free treatment
if he reported to a refugee camp there. He emphasized that he
never intended to apply for asylum in Germany and did not do so
while he was there; he also said that he expressed no reluctance to
the German government about returning to Albania once he
received the treatment he needed.
Nekaj also called an expert witness—an academic specialist
on Albania—to testify about the current political conditions in the
country. The expert explained that the political system is
“authoritarian” and that the current political parties use the police
and the courts to strengthen themselves, with the Socialist Party
currently in control.
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After the hearing, the immigration judge issued an oral
decision denying Nekaj’s applications. He first concluded that
Nekaj’s testimony was not credible, for three key reasons. First,
Nekaj had alleged that he was arrested in February 2019 after he
attended a large protest in Tirana, four hours away from his home
by car. But the immigration judge found it implausible that while
three friends from his hometown had also made the trip, he alone
was later singled out and arrested—especially since Nekaj’s expert
witness had testified that the protest involved 40,000 people.
Second, Nekaj stated that his purpose in traveling to
Germany in 2015 was to receive free medical treatment and that he
did not request asylum. But in his I-589 form requesting
withholding of removal, Nekaj had previously written that he and
his sister did apply for asylum in Germany and that they were
forced to leave when their applications were denied. The
immigration judge found it “troubling” that Nekaj “basically
testif[ied] that he was trying to game the asylum system in
Germany.”
Third and finally, Nekaj had also testified that he did not
apply for asylum in the countries he passed through on the way to
the United States because he had always intended to stay here. But
his I-589 form asserted that he did not apply for asylum in those
countries because he “did not feel safe and [he] was not offered the
opportunity to apply.” Beyond all these inconsistencies, the
immigration judge also found that a “lack of corroboration
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alone”—especially a lack of medical reports confirming Nekaj’s
alleged injuries—also required denial.
The immigration judge explicitly rested his decision on lack
of credibility, but he went on to make alternate findings on the
merits. He concluded that Nekaj had not established harm rising
to the level of past persecution. Three of the four incidents alleged
by Nekaj involved unknown assailants that had no apparent
affiliation with the government, and each of these incidents
occurred just before an election (with “no instances of harm in
between”). The immigration judge therefore determined that
these incidents were “election intimidation” rather than
persecution. And the facts suggested that the final incident—
Nekaj’s arrest in February 2019—was part of a police investigation
of the “violent protest” Nekaj had attended (though Nekaj testified
that he left the protest before any violence occurred). Because
there were “no further issues with the police in his time in
Albania,” the immigration judge concluded, that “isolated incident
based on a violent high-profile protest in the capital” was not
enough to constitute persecution.
Nor had Nekaj sufficiently alleged an objectively reasonable
fear of future harm. Nekaj’s expert had testified that there were
“hundreds of thousands of supporters of the Democratic Party in
Albania,” and Nekaj’s family (who were numbered among those
supporters) appeared to be living relatively safe and successful lives
in an area of Albania known to be a “Democratic Party
stronghold.” Even if Nekaj were to suffer incidents in the future
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8 Opinion of the Court 21-11306
similar to those he had alleged, “isolated incidents by criminals
which result[] in threats and possibly minor injuries” are not
enough to rise to the level of persecution.
Nekaj appealed the immigration judge’s decision. He
argued that his testimony had been credible, that no corroborating
evidence was necessary, and that the immigration judge had erred
in finding no past persecution or future harm. The Board of
Immigration Appeals disagreed. It concluded that the immigration
judge had “provided specific and cogent reasons for his adverse
credibility finding” and that Nekaj was therefore ineligible for
asylum on those grounds alone. But like the immigration judge,
the Board also considered the merits of Nekaj’s petition. After
reviewing Nekaj’s testimony, the Board determined that Nekaj had
not established either past persecution or a reasonable fear of
future harm. And because Nekaj could not meet the burden
required to prevail on an asylum claim, he “necessarily” could not
meet the “higher burden required for withholding of removal.”
The Board therefore dismissed Nekaj’s appeal.
Nekaj now petitions this Court for review of the Board’s
decision.
II.
We review the decision of the Board of Immigration
Appeals, along with the immigration judge’s underlying decision
“to the extent that the Board expressly adopted” the immigration
judge’s opinion. Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341,
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1350 (11th Cir. 2009). Legal determinations are reviewed de novo,
but findings of fact are subject to substantial evidence review—a
“highly deferential” standard that requires us to affirm an
immigration judge’s decision “if it is supported by reasonable,
substantial, and probative evidence on the record considered as a
whole.” Ayala v. U.S. Att’y Gen., 605 F.3d 941, 948 (11th Cir. 2010)
(quotation omitted). “We may not reweigh the evidence from
scratch, and we may reverse only when the record compels a
reversal.” Id. (quotations omitted).
III.
On appeal, Nekaj argues that the immigration judge’s
credibility finding was not supported by substantial evidence and
that the alternate finding that the past harm he suffered was not
persecution was “infected by both factual and legal error.” We are
not persuaded.
As a preliminary matter, this Court lacks jurisdiction to
review Nekaj’s asylum claim on appeal. We have no jurisdiction
to hear claims raised in a petition for review “unless the petitioner
has exhausted his administrative remedies with respect thereto.”
Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1251 (11th
Cir. 2006); see 8 U.S.C. § 1252(d)(1). We therefore lack jurisdiction
to consider claims that have not been raised before the Board of
Immigration Appeals. Sundar v. INS, 328 F.3d 1320, 1323 (11th Cir.
2003).
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In issuing the order denying Nekaj’s applications, the
immigration judge noted that the application for asylum failed
under the then-existing “third-country transit asylum bar.” Its
credibility and merits determinations therefore pertained only to
Nekaj’s claim for withholding of removal. And Nekaj appealed
only those determinations to the Board of Immigration Appeals.
So we may only consider his withholding-of-removal claim, not his
asylum claim.
To qualify for withholding of removal, Nekaj must show
that his “life or freedom would be threatened” in Albania because
of his “race, religion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). More
particularly, he must show that he “more-likely-than-not would be
persecuted or tortured” upon his return. Mendoza v. U.S. Att’y
Gen., 327 F.3d 1283, 1287 (11th Cir. 2003). Past persecution based
on a protected characteristic creates a presumption that future
harm is likely to occur. Id.
The immigration judge is tasked with determining whether
an applicant’s testimony is credible. 8 U.S.C. § 1231(b)(3)(C).
Though an adverse credibility finding must be supported by
“specific, cogent reasons,” it “may not be overturned unless the
record compels it.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287
(11th Cir. 2005) (quotation omitted).
Here, the immigration judge’s finding that Nekaj was not
credible was supported by substantial evidence. The immigration
judge explicitly stated that he found Nekaj’s testimony to be not
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credible, and he gave specific, cogent reasons for doing so. The
most important of these was that Nekaj’s testimony contradicted
the information he had provided on his I-589 form. That document
states that Nekaj unsuccessfully applied for asylum in Germany
during his trip there in 2015 and that he failed to apply for asylum
in the countries he passed through on the way to the United States
because he felt unsafe and had no opportunity to do so. In his
testimony, however, Nekaj claimed that he had never applied for
asylum in Germany and that he did not apply in the other countries
because he only intended to live in the United States. The
immigration judge concluded that he “just d[id] not know what to
believe” and did not find Nekaj credible as a result. He also pointed
to implausible aspects of Nekaj’s alleged arrest in February 2019
and the conspicuous lack of corroboration for Nekaj’s claims.
Taken together, the immigration judge concluded that these
inconsistencies went “to the heart of [Nekaj’s] claim.”
Particularly given the facial contradictions between Nekaj’s
testimony and his I-589 form, this record does not compel us to
reverse the district court’s determination.2 That alone is enough
to deny Nekaj’s petition for review. Because Nekaj could not
prevail on the merits even if we were to overturn the adverse
2Indeed, this Court has accepted an adverse credibility determination based
on a single inconsistency and a single omission. See Xia v. U.S. Att’y Gen., 608
F.3d 1233, 1240–41 (11th Cir. 2010). While each inquiry is fact-specific, the
immigration judge here made specific findings that clearly satisfy our standard.
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credibility finding, however, we briefly address those merits here
as well.
Nekaj argues that the Board of Immigration Appeals erred
in finding that he had failed to establish harm sufficient to
constitute past persecution. In his view, the Board minimized
crucial factual details and cited to inapposite precedents. In
particular, he accuses the Board of attempting to “disaggregate the
relevant events into a string of isolated or non-condonable (but
benign) incidents” when they must in fairness be considered
together.
As we have explained, persecution is “an extreme concept
that does not include every sort of treatment our society regards as
offensive.” Murugan v. U.S. Att’y Gen., 10 F.4th 1185, 1192 (11th
Cir. 2021) (quotation omitted). Examples of persecution include
threats and attacks over an 18-month period, including an attack
resulting in a broken nose; repeated death threats and assaults
followed by an 18-day kidnapping; and a series of “beatings, arrests,
searches, and interrogations, culminating in a fifteen-day, food-
deprived detention.” De Santamaria v. U.S. Att’y Gen., 525 F.3d
999, 1008 (11th Cir. 2008) (collecting cases).
Neither the immigration judge nor the Board of
Immigration Appeals erred in finding that Nekaj was unable to
meet that high standard. Nekaj described three instances in which
groups of socialists beat him, insulted him, and left him with minor
to moderate injuries. But as the Board and the immigration judge
both noted, these incidents were separated by years of relative calm
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and appeared to be “isolated incidents within the context of
generalized election-related violence and intimidation, rather than
a sustained effort to persecute” Nekaj in particular. And the
February 2019 arrest—“a brief detention and minor physical abuse
after [Nekaj] attended a violent protest”—does not transform
Nekaj’s unfortunate experiences into persecution. As this court has
repeatedly explained, “minor physical abuse and brief detentions”
are simply not enough. 3 Murugan, 10 F.4th at 1192 (quoting
Kazemzadeh, 577 F.3d at 1353 (brackets omitted)). Nekaj has
alleged nothing more than that.
Even when Nekaj’s allegations are considered in the
aggregate, substantial evidence supports the conclusion that those
harms—a single bad encounter with the police during the
investigation of a violent protest, plus three instances of sporadic
voter intimidation over several years—do not amount to
persecution. So even if we could accept his testimony as credible,
we must deny his petition.
3Nekaj’s alleged harms are not as egregious as some others that have failed to
qualify as persecution. For example, this Court recently concluded that being
detained by the police “three times and, during the longer 4-day detention,
[being] tied to a chair, slapped, and kicked,” while “serious” harm, did not
qualify as persecution. Murugan, 10 F.4th at 1192–93.
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* * *
The decisions of the Board of Immigration Appeals and the
immigration judge were supported by substantial evidence. We
therefore DENY Nekaj’s petition for review.