U N I T E D STATES COURT OF APPEALS

F O R THE SECOND CIRCUIT

S U M M A R Y ORDER

T H I S SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL

R E P O R T E R AND MAY NO T BE CITED AS PRECEDENTIAL AUTHORITY TO

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E S T O P PE L OR RES JUDICATA.

A t a stated term of the United States Court of Appeals for the Second Circuit, held at

t h e United States Courthouse, Foley Square, in the City of New York, on the 31st day of

January, two thousand and six.

PRESENT: H O N O R A B L E REENA RAGGI,

H O N O R A B L E PETER W. HALL,

C i r c u i t Judges.

H O N O R A B L E EDWARD R. KORMAN,1

D i s t r ic t Judge.

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SU L JA DIN GUTIC,

P e t i ti o n e r -A p p e l l a n t,

v. No. 03-40465

A L B E R T O R. GONZALES,2

R e s p o n d e n t - A p p e ll e e.

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A P P E A R I N G FOR APPELLANT: K W E K U J O S E P H H A N S O N , Ha n s o n &

A s s o c i a te s , Hartford, Connecticut.

A P P E A R I N G FOR APPELLEE: M A R Y TRIPPLER, Assistant United States A tto rn ey, for Thomas B. Heffelfinger, United S t a t e s Attorney, District of M i n n e s o t a , M i n n e a p o l i s , Minnesota.

Petitio n for review from the Board of Immigration Appeals ("BIA").

U P O N DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND D E C R E E D that the petition for review of the July 31, 2003 decision of the BIA is hereby D E N IE D .

P e t i ti o n e r Suljadin Gutic ("Gutic"), a Muslim native of Montenegro, appeals the BIA 's summary affirmance of an Immigration Judge's ("IJ") denial of Gutic's applications f o r asylum, withholding of removal, and relief under the Convention Against Torture ( " C A T " ) . Gutic submits that the IJ erred in concluding that he failed to present credible t e s ti m o n y of past religious and political persecution and that the government, in any event, h a d adequately rebutted any presumption of future persecution. We assume the parties' f a m i l i a r i t y with the facts and the record of prior proceedings, which we reference only as n e c e s s a ry to explain our decision.

T o qualify for asylum, "a refugee must demonstrate past persecution or a wellf o u n d e d fear of future persecution on a account of `race, religion, nationality, membership in a particular social group, or political opinion.'" Zhou Yun Zhang v. United States INS, 3 8 6 F.3d 66, 70 (2d Cir. 2004) (quoting 8 U.S.C. § 1101(a)(42)). If an applicant cannot support a claim for asylum, he will generally fail to satisfy the heavier burden for w i t h h o l d in g of removal. See Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004); W u Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir. 2003) (per curiam). To qualify for CAT r e l ie f , an alien must demonstrate that it is more likely than not that, if returned to his native co un try, he would be tortured, as defined by CAT. See Islami v. Gonzales, 412 F.3d 391, 395 -96 (2d Cir. 2005).

When, as in this case, the BIA summarily affirms an IJ's decision, we review the d e c i s io n of the IJ directly. See Twum v. INS, 411 F.3d 54, 58 (2d Cir. 2005). The IJ's f i n d i n g s of fact "are conclusive unless any reasonable adjudicator would be compelled to c o n c l u d e to the contrary." 8 U.S.C. § 1252(b)(4)(B). Thus, we will not disturb an IJ's f i n d i n g s of fact if they are "supported by `reasonable, substantial, and probative' evidence in the record when considered as a whole." Wu Biao Chen v. INS, 344 F.2d at 275 (quoting D i a l l o v. INS, 232 F.3d 179, 287 (2d Cir. 2000)). Indeed, "[w]hen a factual challenge p e r t a in s to a credibility finding made by an IJ and adopted by the BIA, we afford `particular d e f e r e n c e ' in applying the substantial evidence standard," Zhou Yun Zhang v. United States I N S, 386 F.3d at 73 (quoting Montero v. INS, 124 F.3d 381, 386 (2d Cir. 1997), provided t h e IJ has not misstated the record and has given specific, cogent reasons for the credibility r u l in g , thereby demonstrating that it is not based on bald speculation or caprice, see id. at 74; s e e also Ramsameachire v. Ashcroft, 357 F.3d at 178.

A s these principles demonstrate, Gutic carries a heavy burden in challenging the IJ's a d v e r s e credibility finding. No matter. As the IJ recognized, even if Gutic's testimony had b e e n found credible, so as to give rise to a presumptive fear of future persecution, see 8 C . F. R . § 208.13(b)(1), he would not be entitled to the relief sought because the government r e b u t te d this presumption by showing, by a preponderance of the evidence, that a "change in circumstances in the applicant's country of nationality has occurred such that the applicant's fear [of future persecution] is no longer well-founded." Guan Shan Liao v. DOJ, 2 9 3 F.3d 61, 67 (2d Cir. 2002) (citing 8 C.F.R. § 208.13(b)(1)(i)); see also Gao v. Gonzales, 4 2 4 F.3d 122, 128 (2d Cir. 2005) (noting that well-founded fear of future persecution has an objective as well as subjective component).

Gu tic testified that he feared that, if returned to Montenegro, he would be beaten and k i l le d . To the extent this fear derived from Gutic's claimed past persecution at the hands of S e r b i a n reservists who allegedly beat him for helping refugees during the Kosovo conflict, w e agree with the IJ that the government satisfied its burden of proving that conditions had suff iciently changed in Montenegro to make this fear objectively unreasonable by October 2 0 0 1 . The Kosovo conflict had ended, the former flood of refugees into Montenegro had s l o w e d to a trickle, Slobodan Milosevic had been removed from power, and the Montenegrin g o v e r n m e n t had achieved a considerable degree of independence from Yugoslavia and the Y u g o s l a v i a n army. These same changed conditions support the IJ's conclusion that it was n o t objectively reasonable for Gutic to fear future persecution based on his past refusal to r e s p o n d to a Yugoslav draft notice. See Islami v. Gonzales, 412 F.3d at 398 (concluding that end of Kosovo conflict rebutted fear that conscription would result in compelled participation in Serb-led military campaigns).

In sum, because Gutic's claim of past persecution, even if credible, would not support a well-founded fear of future persecution in light of substantial evidence of changed country c o n d i t i o n s , we cannot fault the IJ's denial of relief from removal on any of the three grounds pursued.

T h e petition for review of the July 31, 2003 decision of the BIA is hereby DENIED.

F O R THE COURT: R O S E A N N B. MACKECHNIE, CLERK By:

1 The Honorable Edward R. Korman, Chief Judge of the United States District C o u r t for the Eastern District of New York, sitting by designation. 2 Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Alberto R. Gonzales is autom atically substituted for former Attorney General John Ashcroft as a respondent in t h i s case.