Rroshi v. Gonzales , 219 F. App'x 24 ( 2007 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 06-1329
SELIM RROSHI,
Petitioner,
v.
ALBERTO R. GONZALES, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge.
Saher J. Macarius and Audrey Botros on brief for petitioner.
Peter D. Keisler, Assistant Attorney General, Civil Division,
Greg Mack, Senior Litigation Counsel, Office of Immigration
Litigation, and Daniel R. Dertke, Environmental Defense Section,
Environmental and Natural Resources Division, U.S. Department of
Justice, on brief for respondent.
April 4, 2007
STAHL, Senior Circuit Judge. Petitioner Selim Rroshi
petitions for review of the Board of Immigration Appeals's (BIA)
affirmance of an immigration judge's (IJ) denial of his application
for asylum.1 We find that Rroshi's petition is precluded by Tota
v. Gonzales, 457 F.3d 161 (1st Cir. 2006), and we therefore affirm.
Rroshi is a native and citizen of Albania who arrived in
the United States on March 3, 2002, on a false passport. The
Immigration and Naturalization Service (INS)2 issued a Notice to
Appear, and at a hearing on September 11, 2002, Rroshi conceded
removability, but applied for relief based on his experiences in
Albania. The IJ denied relief, and the Board of Immigration
Appeals (BIA) affirmed and adopted the IJ's decision.
Rroshi was born in 1966 in Durres, Albania, into a family
of "Kulaks,"3 who were considered opponents of the Communist regime
then in power. Some of Rroshi's family members spent time in
prison, presumably for political reasons. Rroshi became involved
with the Democratic Party in 1990, and participated in party
1
Rroshi was also denied withholding of removal and protection
under the Convention Against Torture, but does not appeal those
denials here.
2
The Homeland Security Act of 2002, Pub. L. No. 107-296, §
471, 116 Stat. 2135, 2205 (codified as amended at 6 U.S.C. §
291(a)), abolished the INS and transferred its duties to the
Department of Homeland Security. See Lattab v. Ashcroft, 384 F.3d
8, 13 n.2 (1st Cir. 2004).
3
"Kulak" seems to be a generic term for landowners and others
with wealth who were disfavored during the Communist regime.
-2-
rallies and organizing activities. In 1991, Rroshi was shot in the
leg on his way home from a demonstration. He believes that he was
targeted by the Communist Party because of his Democratic Party
activities.
The Democratic Party took power in 1992, and Rroshi
continued to be active in the party. The Socialist Party,
apparently made up largely of former Communist Party members,
returned to power in 1997. In the period leading up to that
election, Rroshi again became the subject of physical attacks.
On June 22, 1997, Rroshi visited the village of Rreth to
campaign for the Democratic Party. There, he spoke to a group of
about 40 or 50 people in the town center and advocated, among other
things, that the Socialist Party should be outlawed. Socialist
Party members hit and swore at Rroshi and his companions as they
left town that evening.
When Rroshi and his companions returned to Durres, they
parked near the Democratic Party office and went for a walk on the
town’s promenade. As they walked, a car pulled up in front of them
and three men got out and began to beat Rroshi and his companions.
The men forced Rroshi and the others into their car, blindfolded
them, and took them to a house 45 minutes away, where the beatings
continued and the captors told them to leave the Democratic Party.
They were held captive in the house for two weeks, until the
-3-
election had passed. When Rroshi was released, his captors told
him that if they caught him again, they would kill him.
After the election, Democratic Party members continued to
be harassed and threatened. Socialist Party members entered
Rroshi's house and mistreated his mother and brother. Rroshi was
also arrested on two occasions and held without charge or
explanation for several hours.
In January 2002, Rroshi was at a bar in Durres, when a
person in a military-looking uniform approached him and left a
bullet on his table, and warned him that he would have the same
fate as his friends, presumably referring to Democratic Party
members who had been killed. Two days after that, Rroshi went to
Tirane, where he procured a false passport. He then left the
country through Italy, traveled to Spain, and then to the United
States, entering in Chicago. Upon entry, he disclosed to a customs
official that his passport was false and that he was seeking
asylum.
In order to qualify for asylum, Rroshi must show that he
is a "refugee." 8 U.S.C. § 1158(b)(1)(A), (B)(i); 8 C.F.R. §
208.13(a). A "refugee" is a person outside his or her home country
who is "unable or unwilling to return . . . because of persecution
or a well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political
opinion." 8 U.S.C. § 1101(a)(42)(A). If a person can show past
-4-
persecution, this creates a presumption that the person has a well-
founded fear of future persecution. 8 C.F.R. § 208.13(b)(1).
However, this presumption can be rebutted by a preponderance of
evidence that "[t]here has been a fundamental change in
circumstances such that the applicant no longer has a well-founded
fear of persecution." 8 C.F.R. § 208.13(b)(1)(i)(A).
The IJ found Rroshi credible, and agreed that he had
suffered past persecution. This shifted the burden to the
government to show that, despite this past persecution, Rroshi did
not have a well-founded fear of future persecution. The government
presented evidence of changed circumstances in Albania, primarily
through the U.S. State Department's 2004 report, Albania: Profile
of Asylum Claims and Country Conditions ("Country Conditions
Report"). The report noted that there had been no major outbreaks
of political violence since 1998, that neither party any longer
engaged in policies of abuse or coercion against political
opponents, and that many former opposition members had returned to
the country without reprisal.
Relying on the Country Conditions Report, the IJ held
that changed circumstances were such that Rroshi did not have a
well-founded fear of future persecution. The BIA affirmed in a
short opinion adopting the decision of the IJ.
We review the decision of the BIA directly, but "[w]here
the BIA deferred to or adopted the IJ's reasons for denying [the
-5-
petitioner's] claims, we review those portions of the IJ's decision
as part of the final decision of the BIA." Hernandez-Barrera v.
Ashcroft, 373 F.3d 9, 20 (1st Cir. 2004). We review the IJ's
factual findings under the deferential "substantial evidence"
standard. Dhima v. Gonzales, 416 F.3d 92, 95 (1st Cir. 2005). The
IJ's determination must stand "unless any reasonable adjudicator
would be compelled to conclude to the contrary." 8 U.S.C. §
1252(b)(4)(B). This same standard applies to an IJ's finding of
changed circumstances, where such a finding is based on factual
determinations, as this one was. Tota, 457 F.3d at 165 n.8;
Mehilli v. Gonzales, 433 F.3d 86, 93 (1st Cir. 2005).
While the State Department's Country Conditions Reports
are not binding, Gailius v. INS, 147 F.3d 34, 45 (1st Cir. 1998),
they are "generally probative of country conditions" and "may be
sufficient . . . to rebut the presumption of future persecution,"
Palma-Mazariegos v. Gonzales, 428 F.3d 30, 36 (1st Cir. 2005). In
the case of Albania, we have recently addressed the applicability
of the Country Conditions Report under circumstances remarkably
similar to those here. See Tota, 457 F.3d at 162-65; see also
Alibeaj v. Gonzales, 469, F.3d 188, 192-93 (1st Cir. 2006);
Bollanos v. Gonzales, 461 F.3d 82, 86 (1st Cir. 2006). The
petitioner in Tota, Gen Tota, also worked for the Democratic Party
during the same period, and was beaten and accosted by Socialist
Party members (although he was not kidnapped as Rroshi was).
-6-
Following the Socialists' return to power in 1997, he was
frequently arrested and held without charge, once for 20 hours.
Tota ultimately left Albania in 2000 and sought asylum in the
United States.
As in this case, the IJ found Tota credible as to past
persecution, but found that the Country Conditions Report provided
sufficient evidence to rebut the presumption of future persecution.
On appeal, Tota challenged the IJ's reliance on the Country
Conditions Report, but we held that "substantial evidence culled
from the [Country Conditions Report], specifically tailored to the
discussion of political persecution of [Democratic Party] members
by the Socialist government, supports the IJ's finding that the
government met its burden of rebutting Tota's presumptive
well-founded fear of persecution." Tota, 457 F.3d at 168. Only a
short period of time has passed since our decision in Tota, and
there has been no evidence presented that the situation has
worsened in Albania in that period. Therefore, we follow our
decision in Tota and deny the petition for review.
The petition for review is denied.
-7-