Ruci v. Holder, Jr. , 741 F.3d 239 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 12-1886
KRISTO RUCI,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Torruella and Lipez, Circuit Judges.
Saher J. Macarius, Avni J. Amin, Audrey Botros, and Law
Offices of Saher J. Macarius, LLC on brief for petitioner.
Stuart F. Delery, Principal Deputy Assistant Attorney General,
Civil Division, Douglas E. Ginsburg, Assistant Director, Office of
Immigration Litigation, and Rebekah Nahas, Office of Immigration
Litigation, Civil Division, Department of Justice, on brief for
respondent.
December 23, 2013
TORRUELLA, Circuit Judge. Petitioner Kristo Ruci seeks
review of a decision of the Board of Immigration Appeals denying
his application for asylum, withholding of removal, and protection
under the Convention Against Torture. Ruci contends that the Board
erred in finding that the government's evidence of changed country
conditions rebutted the presumption of relief raised by his past
persecution on political and ethnic grounds. Because the evidence
supports the Board's finding of materially changed country
conditions since the petitioner's departure, we deny the petition
for review.
I. Facts and Background
Following a hearing on April 4, 2011, an Immigration
Judge (IJ) accepted the following evidence and testimony as
truthful.
A. History
Kristo Ruci is a native and citizen of Albania. Although
Ruci's family has resided in Albania for some time, it is Greek by
origin. In 1956, Ruci's father was sentenced to sixteen years
imprisonment for attempting to leave Albania for Greece. In 1965,
following his father's early release from prison, Ruci was born
without medical care in an internment camp in Albania where his
parents were then confined. Growing up in the internment camp,
Ruci was not allowed to attend school beyond a certain age and was
a social outcast among the local community. His family was subject
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to surveillance by the police, had its home searched frequently by
officers, and was restricted from leaving the camp.
Beginning in young adulthood, Ruci became an active
participant in the democratic resistance against the socialist
regime. In late 1989, in June of 1990, and in March of 1991, Ruci
participated in demonstrations against the Socialist Party
organized by the Democratic Party and its followers. On each
occasion, the demonstration was broken up by police officers who
beat and arrested the demonstrators. In June of 1990, Ruci himself
was arrested, severely beaten, and instructed to denounce his
allegiances to the Democratic Party. In March of 1991, Ruci was
again beaten and detained for several days by the police.
Although the Democratic Party won the general elections
in 1992, by 1997 the Socialist Party regained control of the
Parliament. The 1997 election led to a period of unrest, including
the 1998 assassination of a prominent Democratic politician. In
October of 2000, Ruci was warned by members of the Socialist Party
that he should leave the Democratic Party or else face death. In
November of 2001, Ruci had to be hospitalized overnight after he
was attacked by two masked men, who beat him and ordered him to
leave the Democratic Party. In February of 2002, unknown
individuals fired upon Ruci's home while Ruci, his wife, and his
two children were inside.
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Following the February 2002 incident, Ruci and his family
decided to leave Albania. On May 4, 2002, Ruci entered the United
States illegally using a fraudulent passport. In the meantime,
Ruci's wife and children left Albania for Greece, where they
obtained visas to join Ruci in the United States. Ruci and his
family currently reside in Massachusetts.
In 2005, several years following Ruci's departure, police
officers came to his father's home in Albania to inquire about
Ruci's whereabouts and when he would return to Albania. This is
the final incidence of political targeting of Ruci identified in
the record. In 2007, the Democratic Party won the Albanian general
elections. The party remains in power today.
B. Proceedings
On September 19, 2002, the Department of Homeland
Security (DHS) served Ruci with a Notice to Appear, charging him
with removal under 8 U.S.C. § 1227(a)(1)(A) as an alien
inadmissible at the time of entry. Ruci conceded his removability,
but filed an application for asylum, withholding of removal, and
protection under the Convention Against Torture (CAT).
On April 4, 2011, an IJ denied Ruci's applications. The
IJ found that Ruci had established that he had suffered past
persecution in Albania on the basis of both his political
sympathies and his Greek background, and was consequently entitled
to a presumption of a well-founded fear of future persecution.
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However, the IJ concluded that the DHS's submitted evidence, most
notably a 2009 Department of State country report on Albania, was
sufficient to rebut the presumption. With regard to political
persecution, the IJ noted that, since the Democratic Party's return
to power in 2007, politically motivated detentions and
disappearances had ceased, former political prisoners under the
socialist regime were receiving compensation, and national
political parties operated freely. With regard to ethnic
persecution, the IJ noted that several Greek politicians now served
on the Parliament and in the executive branch, that Greeks were
officially the largest national minority in Albania, and that Greek
Albanians were able to pursue grievances through the government on
issues such as electoral zones, Greek language education, and
property rights. Having found that the record rebutted the
presumption of a well-founded fear of persecution for the purposes
of Ruci's asylum claim, the IJ concluded that Ruci had failed to
demonstrate a likelihood of persecution for the purposes of
withholding of removal or a likelihood of torture for his CAT
claim.
The Board of Immigration Appeals (BIA) affirmed. While
recognizing that the 2009 country report suggested continuing
concerns about "general police corruption" in Albania, the BIA
agreed with the IJ that both the 2009 report and an earlier 2006
country report indicated that country conditions in Albania both
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for supporters of the Democratic Party and for ethnic Greeks had
stabilized since Ruci's departure. Based on this finding, the BIA
affirmed the IJ's denial of both asylum and withholding of removal.
Finally, the BIA agreed that Ruci had failed to establish a
likelihood of torture by or with the acquiescence of government
officials upon his return.
Ruci now petitions this court for review.
II. Discussion
We review the BIA's legal conclusions de novo, giving
appropriate deference to the BIA's interpretation of immigration
statutes in accordance with administrative law principles.
Castaneda-Castillo v. Holder, 638 F.3d 354, 362 (1st Cir. 2011).
We review the BIA's findings of facts only under a "substantial
evidence" standard, upholding the agency's decision "unless any
reasonable adjudicator would be compelled to conclude to the
contrary." Id. (quoting 8 U.S.C. § 1252(b)(4)(B)); see also
Bonilla v. Mukasey, 539 F.3d 72, 76 (1st Cir. 2008). A material
change in country circumstances is a fact reviewed under the
substantial evidence standard. Nako v. Holder, 611 F.3d 45, 49
(1st Cir. 2010). When, as here, the BIA partly adopts the IJ's
ruling in addition to engaging in its own analysis, we review both
the BIA's and the IJ's rationales. Id. at 48.
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A. Asylum
To establish eligibility for asylum, an alien "must
demonstrate a well-founded fear of future persecution based on
race, religion, nationality, membership in a particular social
group or political opinion." Tasya v. Holder, 574 F.3d 1, 3 (1st
Cir. 2009). An applicant who shows that he has suffered past
persecution on a protected ground raises a presumption of a
well-founded fear of future persecution. Hernandez-Barrera v.
Ashcroft, 373 F.3d 9, 21 (1st Cir. 2004); Bonilla, 539 F.3d at 76.
The government may then rebut that presumption through a
preponderance of evidence showing that "conditions in the country
of the applicant's nationality have changed such that the applicant
no longer has a well-founded fear of persecution." Yatskin v.
I.N.S., 255 F.3d 5, 9 (1st Cir. 2001) (internal quotation marks
omitted).
The BIA's conclusion that Ruci's presumption of a well-
founded fear of both political and ethnic persecution was rebutted
by changed country circumstances is supported by substantial
evidence on the record. As the IJ found and the BIA echoed, the
Democratic Party has been in power in Albania since 2007. In these
years, the country has witnessed a halt in political detentions,
the government has created procedures to compensate past victims of
the socialist regime and to repatriate political refugees, and a
variety of political parties operate without interference from the
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government. While neither side challenges the fact that Ruci's
past experiences in Albania with the Socialist Party constituted
political persecution, all these events--including the most recent
2005 incident--occurred years before the Democratic Party rose to
power. Furthermore, although Ruci has testified to a genuine fear
that he may be targeted by Socialist sympathizers upon his return,
the record before the IJ and the BIA adduces no instances of anti-
Democratic persecution since the 2007 election.1 Faced with
roughly identical evidence, this court has consistently upheld the
BIA's conclusions that the increasingly stable political conditions
in Albania since the early 2000s undermine an applicant's well-
founded fear of persecution by Socialist Party adversaries. See,
e.g., Nako, 611 F.3d at 49 (finding that "fundamental changes in
the Albanian political situation since 2001, when Nako was last in
Albania, rebutted the presumption that Nako had a well-founded fear
of future persecution by his Socialist Party adversaries"); Uruci
v. Holder, 558 F.3d 14, 19-21 (1st Cir. 2009).
As to Ruci's presumption of a well-founded fear of
persecution based on his Greek origins, the IJ found and the BIA
1
While the 2009 State Department report notes the 2009
killing of the Democratic politician Aleks Keka, the report
simultaneously mentions the death of Socialist leader Fatmir Xhindi
and concludes that both incidents "were under investigation and
remained unresolved." Absent any evidence tying Keka's death to
broader anti-Democratic violence, nor even any evidence suggesting
that Keka's death was politically motivated, this isolated event
does not suffice to rebut the IJ's and the BIA's conclusion.
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echoed that the 2009 Report indicates vastly improved conditions
for Greeks in Albania. Members of the Greek community currently
serve in the Parliament and in ministerial and sub-ministerial
positions in the executive department. While acknowledging that
certain minorities, such as Balkan-Egyptions, Roma, and
homosexuals, continue to face harassment in Albania, the IJ noted
that Greeks constitute the country's largest minority group and
routinely turn to the government to protect their political,
cultural, and property interests. Ruci has presented no evidence
to contest the IJ's and the BIA's conclusions that the current
Albanian government neither participates in nor sanctions violence
against the Greek community, nor even that private parties engage
in such violence.
Based on the record, and under our deferential standard
of review, we cannot hold that the BIA erred in concluding that
changed country conditions in Albania rebutted Ruci's presumption
of a well-founded fear of persecution based on either political
opinion or ethnicity.
B. Withholding of Removal
An applicant for withholding of removal faces a higher
burden than an applicant for asylum. Where asylum requires a well-
founded fear of persecution, an applicant for withholding of
removal must establish that "he is more likely than not to face
persecution on account of race, religion, nationality, membership
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in a particular social group, or political opinion." Salazar v.
Ashcroft, 359 F.3d 45, 52 (1st Cir. 2004) (emphasis in original).
As in the case of asylum, an applicant may raise a rebuttable
presumption in his favor by showing that he has suffered past
persecution on a protected ground. See Bonilla, 539 F.3d at 76.
The government "then bears the burden of rebutting the presumption
through proof of . . . a fundamental change in circumstances
eliminating the likelihood of persecution." Sok v. Mukasey, 526
F.3d 48, 53 (1st Cir. 2008).
The same evidence that rebutted Ruci's presumption of a
well-founded fear of persecution for the purposes of his asylum
claim necessarily also rebutted his presumption of a likelihood of
persecution for the purposes of withholding of removal. For the
reasons discussed above, the BIA did not err in denying Ruci's
application.
C. CAT Protection
To qualify for protection under the Convention Against
Torture, an alien must establish that "it is more likely than not"
that he will be tortured if he is returned to his homeland.
Romilus v. Ashcroft, 385 F.3d 1, 8 (1st Cir. 2004) (internal
quotation marks omitted). "Torture" under the act is defined as
"any act by which severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person . . . by or at the
acquiescence of a public official or other person acting in an
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official capacity." Hincapie v. Gonzales, 494 F.3d 213, 220 (1st
Cir. 2007) (quoting 8 C.F.R. § 208.18(a)(1)) (internal quotation
marks omitted).
Ruci has presented no evidence to suggest that he may
face torture by or with the consent of a public official upon his
return. To the extent that his political persecution claim is
based on his sympathies for the Democratic Party--the very party
currently in power--the record fails to support any reasonable fear
of harm by government officials. While Ruci protests that the
IJ's and the BIA's denials of CAT protection were overly cursory,
both agencies explicitly justified their denials based on the
record's failure to present any evidence regarding Ruci's fear of
torture by the government. Furthermore, the IJ's and the BIA's
conclusions with regard to Ruci's CAT claim follow directly from
their foregoing analyses of Ruci's asylum and withholding claims.
See Gjiknuri v. Mukasey, 259 F. App'x 338, 341 (1st Cir. 2008)
("Although the BIA did not explicitly connect its analysis of
fundamentally changed conditions to whether the Gjiknuris will more
likely than not face torture if returned to Albania, its analysis
applies equally to the likelihood of future torture as it does to
future persecution."). The BIA did not err in denying Ruci's claim
for protection under CAT.
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III. Conclusion
For the foregoing reasons, the petition for review is
denied.
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