Shehu v. Holder, Jr. , 531 F. App'x 1 ( 2013 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 11-2435
ILIRJAN SHEHU, ET AL.,
Petitioners,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Howard, Circuit Judge,
Souter,* Associate Justice,
and Torresen,** District Judge.
Andrew P. Johnson and Law Offices of Andrew P. Johnson for
petitioners.
John B. Holt, Trial Attorney, Luis E. Perez, Senior Litigation
Counsel, and Stuart F. Delery, Acting Assistant Attorney General,
for respondent.
August 9, 2013
*
Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
**
Of the District of Maine, sitting by designation.
SOUTER, Associate Justice. This petition is for review
of a judgment of the Board of Immigration Appeals affirming the
order of an immigration judge declaring the concededly removable
petitioners ineligible for asylum, withholding of removal, and like
treatment under the Convention Against Torture. Because
petitioners have not shown that a reasonable adjudicator would be
compelled to find in their favor on any claimed ground for relief,
we affirm.
Ilirjan Shehu is the husband of Raimonda Shehu and father
of the two other petitioners, all of them citizens of Albania. The
claims of Raimonda and the younger son, Joni, are derivative of
Ilirjan’s. Although the elder son, Enis, filed his own asylum
petition as an adult, his counsel told the judge that his claim
rested on “[w]hat happened to his father,” J.A. 80, and it will be
treated as derivative as well, without need to consider the judge’s
and Board’s reasons for finding him independently ineligible for
relief.
The operative facts alleged by the father begin with his
participation at a local level in the affairs of the Democratic
Party of Albania, the competitor of the Socialist Party. He
testified that he was beaten and detained for 12 hours after taking
part in a political demonstration in 1997. The next year he
demonstrated again after the murder of the leader of his party, and
his cousin Adem was killed by a sniper’s bullet after his televised
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accusation that a police official and Socialist Party member, one
Dervishi, had ordered the party leader’s killing. Shehu hired
investigators to unearth evidence that Dervishi was responsible for
Adem’s death, and he presented his claim of political assassination
to Albanian authorities and Amnesty International. He testified
that as he pursued these activities the Socialist government
harassed him in his business, which was nonetheless successful
enough to allow him to accumulate over $300,000. He also suffered
sporadic threats and acts of violence: being assaulted while
monitoring an election in 2001; being assaulted the next year by
several men, including one he recognized as a Dervishi bodyguard;
then having his car stolen and being told that “this time” he was
paying only with his car; two years later receiving an extortion
demand for money, under threat to the safety of his sons, then in
Italy (one of whom was himself threatened); and receiving both a
symbolic death threat and a shot through the window of his house in
2004.
After that, he, his wife and younger son entered the
United States lawfully on visas, and were joined by the elder son,
who was smuggled in illegally. After the visas expired all
received notices to leave; none contested removability. Instead
they filed claims for asylum as refugees on the ground of
persecution and a well-founded fear that they would suffer
persecution, that is, that their lives or freedom would be
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threatened because of Shehu’s political opinions if returned to
Albania, 8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(A); claims for
withholding of removal on the same grounds, id. § 1231(b)(3); and
claims for withholding of removal under the Convention Against
Torture, on the ground of likely torture if returned, see
Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, Art. 3, Dec. 10, 1984, S. Treaty Doc. No.
100–20, p. 20, 1465 U.N.T.S. 85; see also 8 C.F.R.
§§ 1208.16–1208.18.
Although the Government has argued here that the facts
alleged do not rise to the level of persecution under Tobon-Marin
v. Mukasey, 512 F.3d 28, 31-32 (1st Cir. 2008), the immigration
judge assumed arguendo that Shehu had suffered past persecution,
which is enough to raise a rebuttable presumption of future
repetition, see 8 C.F.R. § 1208.13(b)(1). The judge nonetheless
denied asylum based on a finding that Shehu had failed to carry his
burden to show that Albanian persecutory activity was or would be
on account of his political opinions, as distinct from personal
retaliation by Dervishi, or simple hope of profit from extortion.
It is sufficient to limit our own consideration likewise.
Before we reach the motivation issue, however, we should
note Shehu’s anterior claim of a methodological error in the prior
proceedings, though it calls for nothing more than brief mention.
He faults the administrative adjudicators for failing to make any
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express finding that he was a credible witness. But this is no
matter if the assumption of credibility would still leave the
record inadequate to require reversal or vacatur, Morgan v. Holder,
634 F.3d 53, 57 (1st Cir. 2011). As will be seen, that is the case
here.
Shehu’s claim that the judge and Board committed
substantive error in failing to find that his political opinions
were, and would be, the motivation for persecution goes to an issue
on which he had the burden of proof, as with all elements of the
asylum claim. Thus, his burden as asylum applicant, see 8 C.F.R.
§ 1208.13(a), is to show persecution or a well-founded fear of it
if deported to Albania, 8 U.S.C. § 1101(a)(42)(A). Shehu rests his
case for a well-founded fear on a showing of past persecution,
which (as we noted) raises a rebuttable presumption of future
repetition. A further essential element of his claim requires
showing that the motivation for the persecution or its repetition
was, or would be, one of several illegitimate reasons, in this case
(as he says) on account of his political opinion, see 8 U.S.C.
§ 1101(a)(42)(A).
The judge found that his attribution of the harm to his
“political activities [was] not plausible,” J.A. 62, and the Board
agreed that he “did not establish that he encountered problems in
Albania because of his political opinion,” J.A. 4. Since judge and
Board were in accord, we review both of their findings, which are
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“conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B). Accordingly,
Shehu can prevail only on demonstrating that “the evidence ‘points
unerringly in the opposite direction’” of the administrative
conclusions. Segran v. Mukasey, 511 F.3d 1, 5 (1st Cir. 2007)
(quoting Laurent v. Ashcroft, 359 F.3d 59, 64 (1st Cir. 2004)).
This he cannot show.1
It is not that Shehu has no evidence that he has suffered
some harm on account of his expression of political opinion; his
first arrest, temporary detention and assault following a political
rally are apparent examples, and so possibly is the assault while
acting as an election monitor. But for much of the mistreatment he
has suffered in the past, and for the violence to be feared if
returned to Albania, he has identified Dervishi as the instigator,
and he has presented evidence of a distinct and more specific
motivation on Dervishi’s part than passionate political
disagreement. Shehu’s testimony describes how he paid for
investigation into the circumstances of his cousin’s homicide, an
investigation he says points to Dervishi as ordering the killing,
and which he says he has made known to Amnesty International and to
the Albanian government. He has demanded that Dervishi be held
1
Petitioners filed their claims prior to the effective date of
the REAL ID Act of 2005, Pub. L. No. 109-13, § 101(h)(2), 119 Stat.
231, 305, and the statute’s burden-of-proof and credibility
provisions are therefore inapplicable here, see 8 U.S.C.
§ 1158(b)(1)(B)(i)-(iii).
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responsible. This testimony shows that Dervishi has a personal
reason to silence him and those most closely associated with him
that can readily be seen as more powerful than the possible
provocation of Shehu’s political opinions.
To be sure, if Shehu’s testimony is credited, the
official’s personal motive to suppress a troublemaker might well be
complemented by expected satisfaction at silencing a voice of
political opposition. But this influence is unavailing, for two
reasons. The first is that when there are plausible and specific
reasons distinct from political opinion for the asylum applicant to
take provocative action, and for a putative persecutor to react,
showing a general atmosphere of political extremism is insufficient
without more to satisfy the burden to show that harm to be feared
will be on account of the applicant’s own political opinions. See
INS v. Elias-Zacarias, 502 U.S. 478, 482 (1992). A second and
complementary reason, specific to this case, is that in his own
testimony Shehu minimizes the possibility that his political
opinion was or would be the provocation for violence against him,
if he does not practically rule it out. He stated that Dervishi
would “not be opposed to any kind of political belief . . . or any
other kind of ideology or belief. He would advance his career and
get money.” J.A. 198. That is, he attributes Dervishi’s actions
to personal ambition to hold power and reap reward, and as against
this, “the mere existence of a generalized ‘political’ motive
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underlying” the persecutory action does not suffice to establish
that Shehu’s political opinion are the motivation. Elias-Zacarias,
502 U.S. at 482.
Quite obviously, a reasonable person would not be
compelled to reach the conclusion opposite to the judge’s and the
Board’s; the evidence does not point unerringly to Shehu’s own
politics, rather than his pursuit of Dervishi as a criminal, as the
motive for harm rising to the level of persecution that he suffered
or may suffer at Dervishi’s behest.2 Since there was no error in
denying the claim to eligibility for asylum, it follows that there
was none in denying the claim for withholding of removal, which is
governed by a heavier burden of proof of prospective persecution
for one of the specified reasons, see Lobo v. Holder, 684 F.3d 11,
19-20 (1st Cir. 2012). Finally, the denial of the claim for relief
under the Convention Against Torture is likewise free of error,
there being no evidence of any likelihood of torture.
For the foregoing reasons, the petition for review is
denied.
It is so ordered.
2
Given the findings of fact, for which substantial evidence is
apparent, this case does not implicate the concept of mixed
motivation, see Aliyev v. Mukasey, 549 F.3d 111 (2d Cir. 2008).
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