Prela, Gjergj v. Ashcroft, John D. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3963
GJERGJ PRELA, also known as GRERGI PRELA,
Petitioner,
v.
JOHN D. ASHCROFT,
Respondent.
____________
Petition for Review of an Order of
the Board of Immigration Appeals.
No. A77-767-632
____________
ARGUED NOVEMBER 4, 2004—DECIDED JANUARY 7, 2005
____________
Before BAUER, RIPPLE, and KANNE, Circuit Judges.
BAUER, Circuit Judge. Petitioner Grergi Prela requests
review of an order of the Board of Immigration Appeals
(“BIA”) affirming the denial of his application for asylum,
withholding of removal, and protection under the United
Nations Convention Against Torture (“CAT”). For the
reasons stated herein, we affirm.
BACKGROUND
Prela is a native and citizen of the Federal Republic of
Yugoslavia. An ethnic Albanian from Kosovo, Prela claims
that he suffered persecution at the hands of Serbian police
2 No. 03-3963
and was also persecuted by the Albanian population due to
his mother’s Serbian heritage and the fact that he was seen
at the police station several times. With regard to the Serbian
police, he identifies three incidents which he believes con-
stitute persecution. First, in 1989, Prela accidentally shot
himself while cleaning a gun which he owned. At that time,
civilians were not permitted to own firearms. He sought
medical treatment and was later confronted by the Serbian
police, who confiscated his passport and would not return it
until he surrendered the illegally-possessed gun. At the
time he surrendered the weapon, he was interrogated about
his political opinions. Second, in 1994, police surrounded
and searched Prela’s house for illegal weapons. They
arrested Prela and his brother and detained them for
twenty-four hours until their mother paid a bribe to secure
their release. Finally, in 1995, Prela was stopped by police
while driving a car with Swiss tags. The police interrogated
him, asked him to show them his documents, and demanded
bribes. They also caused an unspecified injury to Prela’s
hands, though the injury was not serious. The police even-
tually released him, but told him that they did not want to
see him anymore or they would kill him.
Prela also claims that the Albanians persecuted him, re-
citing incidents that actually occurred in Switzerland. From
1989 to 1999, Prela received a series of temporary work
permits and performed construction work in Switzerland
intermittently. While in Switzerland in 1998 and 1999, Prela
claims that people associated with the Kosovo Liberation
Army (“KLA”) came to his house and threatened him with
“elimination” if he did not join the KLA.
On March 21, 1999, Prela entered the United States as a
non-immigrant visitor. An inspection of his documents
revealed that he had previously entered the United States
as a non-immigrant visitor in June 1998, but there was no
No. 03-3963 3
record of his departure. The INS1 initiated removal proceed-
ings on March 31, 1999. Prela conceded removability and
applied for asylum, withholding of removal, and protection
under the CAT on September 30, 1999. The Immigration
Judge (“IJ”) denied Prela’s petition on July 1, 2002, finding
that he had failed to prove that the claimed persecution was
directed at him individually on the basis of his political
opinion or nationality. Prela appealed, and the BIA sum-
marily affirmed on October 15, 2003. The BIA adopted the
conclusions of the IJ and added that the harm experienced
by Prela did not rise to the level of past persecution or
torture. Prela petitions for review of the BIA’s decision.
DISCUSSION
Since the BIA’s order merely supplements the opinion of
the IJ, that opinion, as supplemented, becomes the basis for
review. Liu v. Ashcroft, 380 F.3d 307, 311 (7th Cir. 2004).
We review the IJ’s denial of Prela’s petition under the defer-
ential substantial evidence standard. Under this standard,
we must affirm if the decision is “supported by reasonable,
substantial, and probative evidence on the record consid-
ered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481,
112 S.Ct. 812, 117 L.Ed.2d 38 (1992). We will reverse only
if we determine that the evidence compels a different result.
Brucaj v. Ashcroft, 381 F.3d 602, 606 (7th Cir. 2004).
Asylum
Under § 208(a) of the Immigration and Nationality Act
(“INA”), 8 U.S.C. § 1158(a), the Attorney General has
discretion to grant asylum to any alien who qualifies as a
1
The Bureau of Immigration and Customs Enforcement, which
is a part of the Department of Homeland Security, now performs
the immigration enforcement function previously handled by the
INS.
4 No. 03-3963
“refugee” as defined by 8 U.S.C. § 1101(a)(42)(A). To es-
tablish that he is a refugee, Prela must prove either that he
has been the victim of persecution in the past or that he has
a well-founded fear of future persecution on account of his
race, religion, nationality, membership in a particular social
group, or political opinion. Tolosa v. Ashcroft, 384 F.3d 906,
908 (7th Cir. 2004). While the INA does not define “pers-
ecution,” we have held that the conduct at issue must rise
above the level of mere harassment. Asani v. INS, 154 F.3d
719, 723 (7th Cir. 1998). We have also recognized that
“unpleasant and even dangerous conditions do not necessar-
ily rise to the level of persecution.” Mitev v. INS, 67 F.3d
1325, 1331 (7th Cir. 1995).
We are not compelled by the record to find that the
incidents of which Prela complains are severe enough to
constitute persecution. To reiterate, he was interrogated at
various times by the police, detained for twenty-four hours,
harassed for money, and beaten, causing an injury to his
hands. Although these events may qualify as harassment or
even intimidation, they are not so extreme that they rise to
the level of persecution. This Court has held that similar or
even more severe conduct is not persecution. See, e.g.,
Dandan v. Ashcroft, 339 F.3d 567, 573-74 (7th Cir. 2003)
(finding that detention for three days without food and
beatings that caused facial swelling did not compel a
finding of past persecution); Zalega v. INS, 916 F.2d 1257,
1260 (7th Cir. 1990) (affirming finding that periodic
searches, arrests, and detainments did not constitute past
persecution). The evidence in this case and our precedent
does not compel a finding that Prela was persecuted in the
past.
We also agree that there is substantial evidence supporting
the IJ’s determination that Prela does not have a well-
founded fear of future persecution. In the absence of a find-
ing of past persecution, Prela must prove that he genuinely
fears persecution on the basis of one of the protected
grounds if removed to Yugoslavia, and that his fears are
No. 03-3963 5
objectively reasonable. Liu, 380 F.3d at 312. Yugoslavia, and
Kosovo in particular, has undergone significant change
since 1999. The State Department Country Reports on
Human Rights Practices in Yugoslavia for 2000 and 2001
both describe the establishment of a new government in the
province of Kosovo and the return of hundreds of thousands
of ethnic Albanians to Kosovo since the end of the Milosevic
regime. Recent opinions by this Court have also recognized
this change in country conditions. See, e.g., Brucaj, 381 F.3d
at 607. Given these changes, we do not dispute the IJ’s
conclusion that Prela’s fear of future persecution is not
objectively reasonable.
Withholding of Removal
Prela also seeks withholding of removal under § 241(b)(3)
of the INA, 8 U.S.C. § 1231(b)(3). Under this section, he
may not be removed to Yugoslavia if his life or freedom
would be threatened there because of his race, religion, na-
tionality, membership in a particular social group, or political
opinion. Id. The standard for withholding of removal is
more stringent than that for granting asylum. Bevc v. INS,
47 F.3d 907, 910 (7th Cir. 1995). To be eligible, he must
establish a clear probability of persecution if returned to
Yugoslavia; in other words, he must prove that it is more
likely than not that he would be subject to persecution.
Borca v. INS, 77 F.3d 210, 217 (7th Cir. 1996). As we have
often held, the stricter standard logically dictates that a pe-
titioner who fails to demonstrate eligibility for asylum
cannot demonstrate eligibility for withholding of removal.
See, e.g., Hasanaj v. Ashcroft, 385 F.3d 780, 783 (7th Cir.
2004).
Torture Convention
To qualify for protection under the CAT, Prela must prove
that it is more likely than not that he would be tortured if
6 No. 03-3963
removed to Yugoslavia. 8 C.F.R. § 208.16(c)(2). Torture is
defined as “any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a
person . . . with the consent or acquiescence of a public
official or other person acting in an official capacity.” 8 C.F.R.
§ 208.18(a)(1). It is also described as an “extreme form
of cruel and inhuman treatment.” 8 C.F.R. § 208.18(a)(2). In
determining whether it is more likely than not that a
petitioner will be tortured, the IJ is directed by the imple-
menting regulations to consider: (1) evidence of past torture
inflicted upon the petitioner; (2) evidence that the petitioner
could relocate to a part of the country of removal where he
or she is not likely to be tortured; (3) evidence of gross,
flagrant, or mass violations of human rights within the
country of removal; and (4) other relevant information
regarding conditions in the country of removal. 8 C.F.R.
§ 208.16(c)(3).
The evidence supports the IJ’s assessment that the harm
Prela suffered in Yugoslavia and Switzerland does not rise
to the level of “torture” as defined by the CAT. As detailed
above, Prela complains that he was detained for twenty-four
hours, harassed for bribes, interrogated, threatened, and
sustained an unspecified injury to his hands. While cer-
tainly unpleasant, these events do not amount to torture.
We also find that there is substantial evidence supporting
the IJ’s determination that the likelihood of Prela being
tortured if removed from the United States is low. Again, as
we noted previously, country conditions in Yugoslavia have
changed considerably over the past five years. We are not
compelled to find that Prela will more likely than not be
tortured if he returns to that country.
CONCLUSION
The IJ’s and BIA’s decisions denying asylum, withholding
of removal, and protection under the CAT to Prela are
AFFIRMED and his petition for review is denied.
No. 03-3963 7
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-7-05