Hasanaj, Ardian v. Ashcroft, John ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-4348
ARDIAN HASANAJ,
Petitioner,
v.
JOHN D. ASHCROFT, United States
Attorney General,
Respondent.
____________
Petition for Review of an Order of
the Board of Immigration Appeals.
No. A76-294-776
____________
ARGUED JANUARY 13, 2004—DECIDED SEPTEMBER 27, 2004
____________
Before BAUER, MANION, and ROVNER, Circuit Judges.
BAUER, Circuit Judge. This is an immigration case in
which the petitioner, Ardian Hasanaj, seeks review of a
final order of the Board of Immigration Appeals (“BIA”) af-
firming a removal order issued in Immigration Court. Hasanaj
is a 31-year-old native of Albania, who entered the United
States in April 1997 at one of Chicago’s airports. At the time
he presented a Swiss passport which had been purchased in
Albania. A Notice to Appear dated May 5, 1997, indicated
that Hasanaj was subject to removal on the grounds that he
2 No. 02-4348
sought to enter the United States by fraud or willful
misrepresentation of a material fact, and that he was not in
possession of a valid unexpired passport or a valid visa or
any other valid entry document. At the hearing, petitioner
conceded removability and applied for asylum and with-
holding of removal.
In his asylum application, Hasanaj stated that he left
Albania and went to Yugoslavia from 1991 to 1994 to escape
persecution. He returned to Albania after his asylum
request was denied and joined the Albanian Democratic Party
in 1994. He attended meetings and recruited members in
his hometown, Han I Hotit, Shkoder Province. According to
Hasanaj, members of his family were active in the Demo-
cratic Party and that his cousin was the party leader in
Han I Hotit. In early 1997, the Democratic Party and the
Socialist Party were at odds. Beginning in February of
1997, the disagreements between the parties grew violent.
Hasanaj’s cousin, the leader of the party, was shot by a
group of armed men who identified themselves as Socialists.
According to Hasanaj, two days later, five, armed, masked
men, claiming to be Socialists, stopped his car and threat-
ened to kill him if they saw him again. Shortly after, his car
was set on fire. Hasanaj left a few days later for the United
States.
At his removal hearing, Hasanaj testified that he left
Albania because of his problems with the Socialist Party
and that he would be jailed, hurt or killed by the Socialist
Party if he returned to Albania. His parents, sister and
brother are living in Albania and they have not experienced
any violence or threat of violence since 1998.
The immigration judge (“IJ”) found Hasanaj to be remov-
able and denied his applications for asylum and withhold-
ing of deportation. The BIA dismissed the appeal without a
separate opinion. This petition for review followed.
No. 02-4348 3
Discussion
Because the BIA affirmed the IJ’s opinion, we base our
review on the IJ’s analysis. Balogun v. Ashcroft, 2004 WL
1469402, *5 (7th Cir. 2004). We review the IJ’s denial of
Hasanaj’s petition for asylum and withholding of removal
under the highly deferential substantial evidence test. Id.Under the substantial evidence test, “we must uphold the
IJ’s findings if they are supported by reasonable, substan-
tial, and probative evidence on the record considered as a
whole; we may reverse the IJ’s determinations only if we
determine that the evidence compels a different result.” Id.;
see also 8 U.S.C. § 1252(b)(4)(B) (“[T]he administrative find-
ings of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.”).
Asylum
The Attorney General has discretion to grant asylum to
an alien who is a “refugee,” that is, an alien who is unable
or unwilling to return to his home country “because of pers-
ecution 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),
1158(a). In this case, Hasanaj claims he will be persecuted
because of his political opinion. The burden of proof is on
Hasanaj to show that he is a “refugee” and is eligible for
asylum. See 8 C.F.R. § 208.13(a).
Hasanaj asserts that the IJ and the BIA erred in denying
his request for asylum. The IJ’s denial of asylum rests on
the conclusion that the evidence was not sufficient to es-
tablish past persecution or a well-founded fear of future
persecution. Hasanaj’s claim of past persecution was based
on one incident; he was threatened at gunpoint by a gang of
socialists who then set his car on fire.
Although threatened, he was not physically harmed. See
Tamas-Mercea v. Reno, 222 F.3d 417, 424 (7th Cir. 2000)
4 No. 02-4348
(defining persecution as “punishment” or “infliction of harm”
for political, religious or other illegitimate reasons “that
rises above the level of mere harassment”). His claim of
past persecution is unfounded. Id. (finding no persecution
where applicant was not personally harmed); See also Lwin v.
INS, 144 F.3d 505, 509 (7th Cir. 1998) (finding failure to
establish past persecution even though the applicant had
been subjected to two interrogations, three home searches,
and was forced to sign an agreement to report his son’s
whereabouts).
Hasanaj claims he has a “well-founded fear” of persecu-
tion if he returns to Albania. The “well-founded fear” test
has two components: (1) that he has a genuine, subjective
fear of persecution, and (2) that his fear is objectively rea-
sonable. Balogun, 2004 WL 1469402, at *5. The “subjective
fear component turns largely upon the applicant’s own tes-
timony and credibility.” Balogun, 2004 WL 1469402, at *5;
quoting Capric v. Ashcroft, 355 F.3d 1075, 1085 (7th Cir.
2004). The objective component can be met by presenting
specific documents or by persuasive testimony. Balogun,
2004 WL 1469402, at *5.
Hasanaj argues that the evidence of the threat to him, the
loss of his car, as well as the shooting of his cousin, coupled
with political unrest in Albania established a well-founded
fear of persecution if he returns. The IJ found that
Hasanaj’s risk was no greater than that faced by the aver-
age Albanian. His reasons are as follows:
[T]he level of involvement by [Hasanaj] in the Democratic
Party was not that great. [Hasanaj] was, in my view,
simply an average party member. He did not hold the
position of prominence, notwithstanding his contention
he followed his brother [sic] around. I don’t think the
evidence supports that contention that he was more
than an average member of that party. The Democratic
Party as the documents clearly show, is a broad-based
No. 02-4348 5
movement in Albania. There are many people who sup-
port that party, particularly in the area from which
[Hasanaj] emanates. In addition, I think that [Hasanaj’s]
case essentially rests upon a unique event. One threat
in April 1997 and should be considered in that context.
The conditions as described in the reports at that time,
consisted of widespread lawlessness in Albania, a break-
down of the rule of law because of the widespread avail-
ability of arms. The threats that [Hasanaj] experienced
were, I think, the problems which many people did in
Albania at the time.
Br. of Petitioner at App. 12. The IJ also pointed to Hasanaj’s
testimony that his brother, who had been in Italy, had
returned and is working in Albania. His testimony in-
dicated that his parents and his brother were still living in
Han I Hotit and remain unharmed. The IJ noted that the
State Department’s advisory opinion indicated the situation
has calmed considerably based on the fact that “a new
government was elected in the summer of 1997 and that the
elections were recognized by the international community
as being fair and comporting with the international stan-
dards.” Id. at 13. The IJ reasoned that there is nothing in
Hasanaj’s testimony “that indicates that the threat to his
family is ongoing or that members of the Socialist Party
would be seeking to harm his family because of any of his
activities. . . . Consequently, there is little reason to believe
that [Hasanaj] would be in danger now in Albania.” Id.
Applying the highly deferential substantial evidence test, we
have concluded that the IJ’s decision to deny asylum is
reasonable and is supported by the evidence on record.
Withholding of Removal
In order to establish eligibility for withholding of removal
under 8 U.S.C. § 1231(b)(3), an applicant must establish a
clear probability of persecution on account of one or more of
the five enumerated grounds. If an applicant fails to es-
6 No. 02-4348
tablish eligibility for asylum, he or she cannot meet the
more stringent standard for withholding of removal. Balogun,
2004 WL 1469402, at *13. So the denial of Hasanaj’s
request for withholding of removal was correct.
Due Process Violations
The Petitioner also claims that he was denied his Fifth
Amendment due process rights. Aliens are entitled to due
process during immigration proceedings. United States v.
Mendoza-Lopez, 481 U.S. 828 (1987). We review de novo
claims of due process violations in removal proceedings.
Kerciku v. INS, 314 F.3d 913, 917 (7th Cir. 2003).
Hasanaj claims that the IJ (1) improperly questioned him
regarding certain aspects of his asylum claim, (2) im-
properly disallowed him from testifying about current con-
ditions in Albania, and (3) unfairly denied his motion for a
continuance.
During Hasanaj’s testimony, the IJ questioned him about
various aspects of his testimony and his asylum claim. In
doing so, the IJ acted well within his “authority to adminis-
ter oaths, receive evidence, and interrogate, examine, and
cross-examine the alien and any witnesses.” 8 U.S.C.
§ 1229a(b)(1). An IJ, “unlike an Article III judge, is not
merely the fact finder and adjudicator but also has an obli-
gation to establish the record.” Yang v. McElroy, 277 F.3d
158, 162 (2nd Cir. 2002); see also Richardson v. Perales, 402
U.S. 389, 410 (1971) (holding that an administrative law
judge acts as “an examiner charged with developing facts”).
As the government noted in oral argument, the fact that an
IJ asks questions during the proceedings is helpful to
develop the record and is better than a silent bench that
says nothing throughout the proceedings and then denies
the request for asylum because the petitioner did not
provide sufficient evidence.
No. 02-4348 7
Hasanaj asserts that the IJ’s conduct during questioning
amounted to “hectoring, pressuring or abusing the witness . . .
abandoning all appearance of impartiality.” Br. of Petitioner
at 20. From our reading of the questioning, the IJ did not
demonstrate impatience, hostility, or a predisposition against
Hasanaj’s claim. The questions were relevant and based on
the testimony or documentary evidence submitted by Hasanaj.
For instance, the IJ questioned him about the incident with
the masked men that caused him to leave Albania. That
line of questioning was to clarify how Hasanaj knew that
the masked men were part of the Socialist Party. Br. of
Petitioner at App. 42-46. The IJ also questioned the Peti-
tioner about where he lived in Albania and why he never
tried to find a safe place to live somewhere else within the
country. Id. at 47. The IJ asked, “what specific information
that you have that would indicate that you would not be
safe living in Albania now, either in Skhodar or elsewhere
in Albania?” Id. at 49. These questions were to develop the
record with whatever the Petitioner had to offer for his case.
The questions reflect what the IJ still needed to know in or-
der to make a fully informed decision. There are no ques-
tions, or group of questions that indicate that this IJ was
anything but thorough and fair in his obligation to this
Petitioner.
The Petitioner claims that the IJ denied him due process
when he barred him from testifying about current conditions
in Albania. Br. of Petitioner at 20. That is a misstatement
of the facts as we read them in the record of the proceed-
ings. The IJ did not bar Hasanaj from testifying about the
current conditions in Albania; instead when the Petitioner’s
attorney began to question him about certain conditions in
Albania, the IJ stated that he would give little weight to
such testimony as an authoritative historical account. Br.
of Petitioner at App. 51-53. After the attorney stated that
the testimony would be relevant to the issue of subjective fear,
Hasanaj testified about events that occurred in Albania af-
8 No. 02-4348
ter his departure from that country. The IJ did not bar any
testimony, nor was the IJ wrong in stating that little weight
would be given to Petitioner’s testimony regarding current
conditions in Albania. Gramatikov v. INS, 128 F.3d 619, 620
(7th Cir. 1997) (stating that little weight should be given to
testimony of an alien who has lived in this country for years
and is not an expert on the politics of his native country as
to its current political climate). Here, Hasanaj presented
evidence in the form of documentation relating to conditions
in Albania in 1997 and 1998, including press releases
purportedly setting forth the platform and mission of the
Democratic Party; reports from Amnesty International,
dated March 3, 1997, and March 14, 1997; and newspaper
articles from various new agencies and publications. The
Petitioner also provided a copy of the State Department’s
Albania Country Report on Human Rights Practices for
1996. With this volume of evidence and the fact that the
Petitioner was not barred from testifying, we find no error
in discouraging Hasanaj from giving cumulative testimony
about country conditions in Albania.
Hasanaj also argues that the IJ denied him his right to a
fair hearing when he denied his request for a continuance.
Hasanaj’s attorney, Marketa Lindt, entered her appearance
on his behalf in July 1997. At a hearing on January 27,
1998, the IJ scheduled the hearing on Hasanaj’s asylum
request for July 1, 1998, by agreement of the parties. In a
motion dated June 10, 1998, Hasanaj requested a continu-
ance because an Albanian interpreter became unexpectedly
ill on June 6, 1998, and that Hasanaj was unable to meet
with counsel for a scheduled meeting to review the case.
The motion also stated that counsel had a speaking engage-
ment at the American Immigration Lawyers Association
conference on June 17-21, 1998, and that counsel’s ability
to reschedule a meeting with Hasanaj was difficult. The IJ
denied the motion for a continuance. At the July 1, 1998
hearing, the IJ explained that any continuance would be for
No. 02-4348 9
a period of about six months, in light of the immigration
court’s calendar. The IJ noted that the asylum application
was prepared in 1997, that it was filed in 1998, and that
counsel had been representing the Petitioner since May 1997.
The IJ thought the time to prepare had been sufficient and
further noted that both by regulation and government pol-
icy, the hearing on an asylum request is to be held within
180 days after filing. The IJ determined that there ought to
be another day in the two-month period to meet with the
interpreter and that the speaking engagement should not
take priority over the hearing. (Also, the speaking en-
gagement was to take place a full week before the scheduled
hearing; there was no actual conflict.) We find no error in
the IJ’s decision to deny the motion for continuance.
In order to establish a denial of the right to due process,
Hasanaj must show that he was prejudiced by the IJ’s
actions. Wigglesworth v. INS, 319 F.3d 951, 960 (7th Cir.
2003). Hasanaj has not pointed to any evidence that might
establish prejudice. The IJ’s questioning of Hasanaj was
relevant and appropriate. The Petitioner was not barred
from testifying about conditions in Albania subsequent to
his departure and he did submit voluminous documentary
evidence regarding such conditions. He had full opportunity to
present his case even without the continuance. He submit-
ted extensive documentary evidence at the hearing, and his
testimony was lucid and credible. The record reveals
nothing to suggest that he was prejudiced by any of the IJ’s
questions, findings, or decisions. His claim of denial of due
process is unfounded.
The IJ’s and BIA’s decisions regarding Hasanaj are
AFFIRMED and his petition for review is denied.
10 No. 02-4348
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-27-04