Kurshumi v. Ashcroft ( 2004 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 02-1378
BESNIK KURSHUMI,
Petitioner,
v.
JOHN ASHCROFT, United States Attorney General,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Torruella and Howard, Circuit Judges.
William E. Graves, Jr. with whom Kerry E. Doyle and Graves &
Doyle were on brief, for petitioner.
Frances M. McLaughlin, Attorney, Office of Immigration
Litigation, with whom Peter D. Keisler, Assistant Attorney General,
Civil Division, Norah Ascoli Schwarz, Senior Litigation Counsel,
Office of Immigration Litigation and Danielle Franco, Attorney,
Office of Immigration Litigation, were on brief, for respondent.
June 25, 2004
Per Curiam. Petitioner Besnik Kurshumi appeals from a
decision of the Board of Immigration Appeals ("BIA" or "Board")
affirming the Immigration Judge's ("IJ") denial of his application
for asylum and withholding of removal. In a written opinion, the
BIA concluded that Kurshumi had failed to establish either past
persecution or a well-founded fear of future persecution. Having
carefully reviewed the record and the petition for review, we
affirm.
I.
Kurshumi, a native and citizen of Albania, entered the
United States illegally on or about July 13, 1994. Deportation
proceedings were initiated when the Immigration and Naturalization
Service ("INS")1 served Kurshumi with an order to show cause
charging deportability under former section 241(a)(1)(B) of the
Immigration and Nationality Act, 8 U.S.C. § 1251(a)(1)(B) (1998),
for entering the country without inspection. Kurshumi conceded
deportability but applied for asylum and withholding of removal.
Kurshumi asserted in his application that he could not
return to Albania because, inter alia, he and his wife had been
subjected to "constant and intense surveillance" (including mail
1
On March 1, 2003, the INS ceased to exist as an agency within
the Department of Justice. Its enforcement functions were
transferred to the Department of Homeland Security. See Homeland
Security Act of 2002, Pub.L. No. 107-296, 116 Stat. 2135 (2002).
Because the events at issue here predate that reorganization, we
refer to the INS in this opinion.
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screening), allegedly on account of their actions (and the actions
of his wife's family) in speaking out against both the former
Communist regime in Albania and the current Albanian government.
Kurshumi also claimed that members of his wife's family had been
subjected to various forms of mistreatment by the then in-power
Communist government.2 In an addendum to his application, Kurshumi
alleged that, because he was not a member of the Communist party in
Albania when that party was in power, he was prohibited from
pursuing a career as an airplane pilot; instead, he was sent to
work for a government-run high school as a physical-education
instructor and was later fired "since he had not been a member of
the Communist party."
At a hearing before the IJ, in addition to testifying
about the events described in his application, Kurshumi testified,
in pertinent part, as follows: that, until the early 1990s, he
lived unharmed as a physical-education instructor; that, in 1991,
he (along with 10,000 other demonstrators) participated in a
political demonstration against the former Communist government;
2
In particular, Kurshumi stated, inter alia, that his wife's
grandfather had been sentenced to death in the 1940s due to his
anti-Communist views but that this sentence eventually was commuted
to fifteen years imprisonment; that his wife's father had been
sentenced to "hard labor in construction" sometime in the 1970s or
80s; that his wife's uncle had been sentenced to nine-years
imprisonment after criticizing Communist ideals; and that his
wife's entire family had been subjected to random interrogations,
beatings, and mental abuse during the Communist era (which since
has ended).
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that he also spoke out against the new government by writing a
letter to parliament; that, in response to this letter, he was
invited to discuss his concerns with the Vice President of the
Defense Commission and two deputies; that, in fact, he did meet
with these individuals; that, after this meeting, he was invited to
a second meeting (this time with parliament); that, on the day of
the second meeting, he was brought to the defense minister and was
asked who would attend the meeting; that he criticized this
minister for over an hour; that another meeting was set up between
himself and the president of parliament; that, prior to this
meeting, he received a note informing him that he was being
transferred from the government-run high school to a new job as
commander of a military team (and, on cross-examination, that the
government-run high school from which he had been transferred had
closed down just three months after his transfer); that, because of
health problems, he did not timely report to his new job; that,
upon eventually reporting to the job, he was fired for having
failed to report; that, around the same time, Albanian police
officers secured a warrant to search –- and did search –- his home
(and the homes of approximately twenty-five others); and that he
thereafter wrote a letter to the newspaper, which was published and
which criticized the search of his home.
In addition to the above testimony, Kurshumi's wife
corroborated her husband's testimony and provided additional
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information about the events relating to her family that were
described in Kurshumi's application. She also testified that, on
the advice of her father, she never spoke out publicly against the
Communist government and that she never participated politically
until the demonstration in 1991; that she herself had no problems
with the Albanian government following the search of the house in
1992; and that she had at least two sisters living peacefully in
Albania. Finally, there was testimony of a general nature from an
expert on European history and totalitarian governments.
In an oral decision, the IJ denied Kurshumi's
applications for asylum and withholding of removal. Kurshumi
sought review from the BIA, which subsequently issued a two-page
per curiam opinion affirming the IJ's decision. This appeal
followed.
II.
We are presented with three arguments on appeal: (1) "the
Board erred when it failed to provide a clear administrative
finding"; (2) "the Board erred when it found that [Kurshumi] had
not established a well-founded fear of [future] persecution and
[when it found] that he had [not] suffered past persecution"; and
(3) "the Board erred in failing to consider current country
conditions in light of [Kurshumi's] past persecution." None are
convincing.
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First, contrary to Kurshumi's assertion, the BIA
articulated a clear rationale for its decision to affirm. The
order states that "[the BIA] agree[s] with the Immigration Judge's
decision that [Kurshumi] failed to establish past persecution or a
well-founded fear or clear probability of persecution in Albania
based on one of the five protected statutory grounds . . .,
especially in light of changed country conditions." In addition to
adopting expressly the reasoning of the IJ ("[T]he [IJ's] decision
will be affirmed for the reasons stated therein . . . ."), the BIA
addressed Kurshumi's principal concerns as follows: (1) "[t]o the
extent that [certain factual] findings [of the IJ] may be
erroneous, we find them to be harmless, inasmuch as we find the
[IJ's] legal conclusion is correct . . . [because,] even if the
government transferred [Kurshumi] because of his political opinion,
such act does not rise to the level of persecution"; (2)
"[Kurshumi] has provided no convincing argument that he has ever
suffered persecution in the past or would likely suffer persecution
in the future because of his relationship to his wife's family."
The BIA is not required to discuss each and every piece of evidence
or write an exegesis on every contention. See Morales v. INS, 208
F.3d 323, 328 (1st Cir. 2000).
Second, we agree with the BIA that Kurshumi has failed to
meet his burden of proving eligibility for asylum and a fortiori
has failed to meet his burden relating to withholding of removal.
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See Mabikas v. INS, 358 F.3d 145, 149 (1st Cir. 2004) ("The
applicant bears the burden of establishing eligibility for asylum
by proving either past persecution or a well-founded fear of future
persecution. The law requires an asylum seeker to demonstrate that
he is a refugee . . . by adducing evidence that such past
persecution or fear of future persecution is due to one of . . .
five grounds . . ., namely, race, religion, nationality, membership
in a particular social group, or political opinion." (citations and
quotation marks omitted)); Albathani v. INS, 318 F.3d 365, 372 (1st
Cir. 2003) ("Because the . . . standard for withholding deportation
is more stringent than that for asylum, a petitioner unable to
satisfy the asylum standard fails, a fortiori, to satisfy the
former." (citation omitted)). "[W]e review a denial of a petition
for asylum by the BIA under a substantial evidence standard. We
will not reverse the BIA's decision unless the record evidence
would compel a reasonable factfinder to make a contrary
determination." Yatskin v. INS, 255 F.3d 5, 9 (1st Cir. 2001)
(citation and quotation marks omitted).
The BIA had ample evidence from which to reject
Kurshumi's asylum claim, and we certainly are not "compelled" to
conclude that Kurshumi was persecuted in the past or has a well-
founded fear of being persecuted in the future on account of his
political opinions or membership in any particular social group.
Although Kurshumi was transferred from his job as a physical-
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education instructor to a new post from which he subsequently was
fired, both events easily are explained by other-than-protected
circumstances (i.e., the school closure and a failure to report,
respectively). Even assuming a nexus between these events and one
of the five protected grounds -- an inference that might well be
debated -- such events normally do not rise to the level at which
a reasonable factfinder would be compelled to find past persecution
and do not do so here. See, e.g., Nelson v. INS, 232 F.3d 258, 264
(1st Cir. 2000) (concluding that a reasonable factfinder would not
have been compelled to find past persecution where petitioner was
subjected to "three episodes of solitary confinement of less than
72 hours, each accompanied by abuse . . . [as well as] regular
harassment in the form of periodic surveillance, threatening phone
calls, occasional stops and searches, and visits to her place of
work"). We therefore conclude that there was substantial evidence
for the BIA to find that Kurshumi "has not demonstrated that he
suffered past persecution or [that he] has a well-founded fear of
[future] persecution."
Finally, Kurshumi contends that the BIA erred when it
failed to consider evidence that "little has changed in Albania
following the collapse of the Communist regime." Kurshumi premises
this argument on the assertion that he established past persecution
and thus was entitled to a rebuttable presumption regarding a well-
founded fear of future persecution. See Fergiste v. INS, 138 F.3d
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14, 18 (1st Cir. 1998) ("A finding of past persecution triggers a
regulatory presumption that the applicant has a well-founded fear
of future persecution, provisionally establishing the applicant's
refugee status and eligibility for asylum. Where the Board finds
that past persecution has been established, the INS has the burden
of proving . . . that since the time the persecution occurred
conditions in the applicant's country of nationality have changed
to such an extent that the applicant no longer has a well-founded
fear of being persecuted if he were to return." (citations and
quotation marks omitted)). As Kurshumi has failed to establish
past persecution, see supra, we need not entertain this argument.
Affirmed.3
3
We note that our disposition of this appeal does not in any
way affect Kurshumi's derivative-asylee status, which (on March 30,
2004) was granted to him by reason of his wife's asylee status.
See 8 U.S.C. § 1158(b)(3) ("A spouse . . . of an alien who is
granted asylum [under subsection (b)] may, if not otherwise
eligible for asylum under this section, be granted the same status
as the alien . . . ."). Kurshumi's asylee status, of course,
remains dependent upon his wife's asylee status. See id. §
1158(c)(2) ("Asylum granted under subsection (b) of this section
does not convey a right to remain permanently in the United States,
and may be terminated . . . [for one of several reasons]."); see
also 8 C.F.R. § 208.24(d) ("Termination of derivative status. The
termination of asylum status for a person who was the principal
applicant shall result in termination of the asylum status of a
spouse or child whose status was based on the asylum application of
the principal.").
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