Ahmeti, Julian v. Gonzales, Alberto R. , 162 F. App'x 627 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 13, 2005
Decided January 11, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 04-2522
JULIAN AHMETI, Petition for Review of an Order of
Petitioner, the Board of Immigration Appeals
v. No. A76-785-832
ALBERTO R. GONZALES,
Respondent.
ORDER
Albanian citizen Julian Ahmeti arrived at Chicago O’Hare International
Airport in November 1998 bearing a false passport. When an immigration inspector
discovered the fraud, Ahmeti revealed his true identity and requested asylum on
the ground that, if returned to Albania, he would be killed because of his political
affiliation. An Immigration Judge (“IJ”) denied Ahmeti’s formal application after a
hearing in 2003, reasoning that he failed to establish past persecution and that,
regardless, conditions in Albania had improved to the point that Ahmeti no longer
had an objectively reasonable fear of future persecution. The Board of Immigration
Appeals (“BIA”) affirmed without opinion. Ahmeti has now filed a petition for
review, which we deny.
No. 04-2522 Page 2
Ahmeti testified at his removal hearing that he left Albania because of two
incidents he attributes to his, and his family’s, affiliation with Albania’s Democratic
Party (“DP”). The first, Ahmeti said, occurred in 1997 while he was acting as an
escort for DP parliament member Uram Buka. Although Ahmeti was not formally
employed by Buka or the DP, he sometimes accompanied his friend, who was
Buka’s assigned driver, on official business with Buka. On this day, Ahmeti
recounted, he and his friend were en route to pick up Buka when they were stopped
by people who punched, pistol-whipped, and warned them not to accompany Buka
any longer. Although the assailants wore masks, Ahmeti recognized one of them as
a neighbor who, he said, was a member of the former Communist Party and was
now being paid by the Socialist Party to beat up opponents. Ahmeti surmised that
he was targeted for attack because of his family’s past opposition to the ousted
Communists, who, Ahmeti says, have simply recast themselves as the Socialist
Party. He did not report the incident to police because, he said, they would not
consider the beating grounds for a complaint.
Ahmeti testified that the second incident occurred in early 1998 in connection
with a rally protesting the assassination of a different DP parliament member.
During what started as a peaceful demonstration, Ahmeti said, he was approached
by Gezim Sadiku, the father of a woman Ahmeti had dated. Sadiku had been a
state security officer with the former Communist regime and, Ahmeti believes, was
at the time of this encounter a member of Albania’s secret police. Sadiku warned
Ahmeti that, given his family’s past, he should cease all association with the DP.
Ahmeti himself had been a DP member only since 1992, but his family had long
opposed the Communists—one uncle was executed in 1945 and Ahmeti’s father was
jailed for nearly 10 years beginning in the 1950s. After that his father’s movements
were restricted, and until the fall of Communism, the entire family, including
Ahmeti, were required to report their movements in and out of the city where they
were living; Sadiku was the official to whom they reported. Immediately after this
encounter with Sadiku, Ahmeti continued, the protesters became disorderly, and
police apparently working for Sadiku swept in. Ahmeti and numerous others were
taken to the police station and beaten with batons before being released the next
day. Ahmeti afterward hid in his house, but two or three masked individuals
eventually found him and warned that he should “never be in the company or go out
with” Sadiku’s daughter again. Ahmeti never reported this threat to the police but
complied with the demand because, he said, he feared Sadiku might kill him if he
continued the relationship.
Ahmeti testified that these incidents lead him to believe that former
Communists opposed to the DP now work for Albania’s secret police and thus
continue to hold considerable power in the government. He fears being killed, then,
if he is returned to Albania. Ahmeti’s father, Fehim Ahmeti, testified that he, too,
No. 04-2522 Page 3
believes Sadiku has the ability to harm his son. Fehim, who was granted asylum in
1996, testified that after he moved to the United States a friend in Albania alerted
him that Sadiku had been looking for him and, not finding him, had commented
that he still had Ahmeti as a “hostage.” Fehim explained that Sadiku knew his
family because the Communists had assigned him to oversee the area where Fehim
was “interned” with his family. Fehim added that friends in Albania had reported
that Sadiku was still “involved with” or “employed by” the Albanian government.
The United States government, on the other hand, maintained that Ahmeti
came to the United States for economic, not political, reasons and did not
reasonably fear future persecution in Albania. The government got Ahmeti to
admit that he lived with extended family in Greece for three months during 1995
but returned to Albania because the living conditions were harsh and his job
opportunities limited. The government also submitted documents showing that
Albania’s economy collapsed shortly before Ahmeti came to the United States.
Although Ahmeti conceded that he closed his small retail clothing business in 1997,
he maintained that he left Albania the following year to avoid being killed. Finally,
the government presented a State Department country report recounting that
Albania’s political climate had stabilized: as of 2001 the DP was participating “in
most parliamentary activity,” and all parties had been “active in most of the
country” without experiencing “a pattern of mistreatment” or the “post-Communist
tradition of retribution.” U.S. Dep’t of State, Bureau of Democracy, Human Rights,
and Labor, Albania: Profile of Asylum Claims and Country Conditions 5-6 (May
2001).
The IJ credited Ahmeti’s testimony but nevertheless denied relief. The IJ
reasoned, first, that Ahmeti could not establish past persecution on account of his
family’s political views because the situation in Albania had changed so extensively
since the fall of Communism that the incidents Ahmeti experienced in 1997 and
1998 could not be attributed to political activities undertaken by his family in the
1940s. The IJ then concluded that Ahmeti’s own encounters with the authorities
did not rise to the level of persecution and that, although Ahmeti may have a
subjective fear of returning to Albania, his fear is not objectively reasonable because
country reports evidence that Albania’s government no longer systematically abuses
DP members. Moreover, the IJ observed that when Ahmeti lived in Albania his
purported fear was not great enough to dissuade him from dating his alleged
persecutor’s daughter, running a business, or returning to his home when he
decided that living conditions in Greece were too harsh.
Before this court Ahmeti contends that the IJ misinterpreted “persecution” to
exclude all abuses short of threats to life or freedom. The IJ should have taken into
account the totality of the abuses he suffered, Ahmeti insists, including the lengthy
period during which he was interned with the rest of the family because of his
No. 04-2522 Page 4
father’s anti-Communist activities. Ahemti also maintains that even if those
punishments do not rise to the level of past persecution he nevertheless established
a well-founded fear of future persecution if returned to Albania.
Where, as here, the Board adopts the IJ’s reasoning without opinion, we
review the IJ’s decision directly and will uphold the denial of asylum so long as that
decision is supported by substantial evidence. Rodriguez Galicia v. Gonzales, 422
F.3d 529, 535 (7th Cir. 2005). Under the substantial evidence standard, an
applicant must demonstrate that the record not only supports, but compels, reversal
of the IJ’s decision. INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992); Medhin v.
Ashcroft, 350 F.3d 685, 689 (7th Cir. 2003).
We start with the question of past persecution. Persecution is punishment
inflicted on account of a person’s race, religion, nationality, membership in a social
group, or political opinion and encompasses conduct beyond threats to life or
freedom. Bace v. Ashcroft, 352 F.3d 1133, 1137-38 (7th Cir. 2003). Physical abuse
may rise to the level of persecution if sufficiently severe, Capric v. Ashcroft, 355
F.3d 1075, 1084 (7th Cir. 2004), but mere harassment does not, Bace, 352 F.3d at
1138. An applicant who proves past persecution is presumed to have a well-founded
fear of future persecution, although the government may rebut the presumption by
showing that the applicant’s fear of returning to his country is no longer objectively
reasonable in light of changed conditions. 8 C.F.R. § 208.13(b)(1); Capric, 355 F.3d
at 1084.
As an initial matter, it appears that Ahmeti never presented to the IJ or the
BIA any argument that his internment as a child constituted past persecution, so
the immigration judge did not address this question. Ahmeti’s testimony
concerning his purported internment consisted of one statement offered to establish
that he recognized Sadiku as the government official who until 1991 monitored the
movements of his family members in and out of the city where they lived; Ahmeti
never said in his testimony that he was interned. The only testimony concerning
internment came indirectly through his father, but even Fehim said nothing more
than that the family was required to live in an “internment place.” Ahmeti
presented no evidence to establish the terms or conditions of his confinement, nor
did he ask the IJ or the BIA to consider his internment as a separate instance of
persecution. See Bosede v. Ashcroft, 309 F.3d 441, 447 (7th Cir. 2002) (holding that
before an applicant is entitled to judicial review he must give immigration
authorities an opportunity to consider the issue).
The IJ, however, did evaluate but reject the broader argument that abuses
suffered by Ahmeti’s family, including their internment, constituted past
persecution. Those events, the IJ concluded, were not relevant to Ahmeti’s
application for asylum because they resulted from “different circumstances during
No. 04-2522 Page 5
Soviet-era Communist Party rule in Albania.” The same reasoning applies to the
narrower question of Ahmeti’s childhood internment. By presenting evidence that
all parties now participate in Albanian politics without systemic mistreatment or
retribution, see Albania: Profile of Asylum Claims and Country Conditions, supra,
the government rebutted any presumption that persecution traceable to the former
Communist regime will recur. Moreover, in 2005, more than two years after
Ahmeti’s asylum hearing, the DP gained political dominance. U.S. Dep’t of State,
Bureau of European and Eurasian Affairs, Background Note: Albania (Sept. 2005),
http://www.state.gov./r/pa/ei/bgn/3235.htm; see Balogun v. Ashcroft, 374 F.3d 492,
506-07 (7th Cir. 2004) (noting that this court may take judicial notice of country
conditions documented in State Department reports not considered by the IJ).
Likewise, Ahmeti’s own testimony established that he departed the internment
area following the Communist government’s ouster and that afterwards he operated
his own business, traveled outside Albania, and returned without fear of reprisal by
the reigning government. In light of this evidence, Ahmeti’s fears based upon his
internment under the Communist regime are not objectively reasonable. See
Tamas-Mercea v. Reno, 222 F.3d 417, 427 (7th Cir. 2000) (reasoning that applicant’s
fear of persecution based upon acts committed by former Communist regime was
not objectively reasonable since that regime was no longer in power); Mitev v. INS,
67 F.3d 1325, 1332-33 (7th Cir. 1995) (reasoning that applicant could not harbor
well-founded fear of persecution due to past involvement in anti-communist trade
union since union was now major political player in applicant’s home country).
What Ahmeti is left with, then, are the incidents in 1997 and 1998. Those
abuses are attributable to the Socialist Party that was in power at the time, but fall
well short of what we have recognized as persecution. Extended detentions
accompanied by persistent physical abuse may well rise to the level of persecution.
See, e.g., Soumahoro v. Gonzales, 415 F.3d 732, 737-38 (7th Cir. 2005) (suggesting
that two-week imprisonment characterized by regular beatings and inadequate food
and water may constitute persecution); Bace, 352 F.3d at 1138 (finding compelling
case of persecution based on month-long detention, physical mistreatment, and
threats); Asani v. INS, 154 F.3d 719, 722-23 (7th Cir. 1998) (recognizing that
two-week detention accompanied by regular beatings may be persecution). But
brief detentions, threats, and isolated acts of violence generally do not constitute
persecution. See, e.g., Prela v. Ashcroft, 394 F.3d 515, 518 (7th Cir. 2005) (finding
no persecution where applicant was repeatedly interrogated by police but detained
only once for 24 hours and beaten, resulting in injury to his hand); Bereza v. INS,
115 F.3d 468, 471-72 (7th Cir. 1997) (finding no persecution where applicant
detained two times for no longer than 24 hours each and beaten to effect each
arrest); Topalli v. Gonzales, 417 F.3d 128, 132 (1st Cir. 2005) (finding no
persecution where applicant was detained and beaten seven times); Bocova v.
Gonzales, 412 F.3d 257, 263 (1st Cir. 2005) (finding no persecution where, on two
separate occasions, applicant was arrested, beaten, and threatened with death).
No. 04-2522 Page 6
Here, Ahmeti was detained overnight only once, suffered two beatings that did not
compel medical attention or prompt complaints of physical injury, and was
threatened on three occasions. Although such actions are deplorable, they do not
rise to the level of persecution.
Because Ahmeti failed to establish past persecution, he does not gain the
presumption of a well-founded fear of future persecution. See 8 C.F.R. § 208.13(b).
He nonetheless maintains that, based upon his father’s testimony that friends said
Sadiku was still employed by the Albanian government as well as Ahmeti’s own
testimony regarding his two encounters with members of the Socialist Party and his
belief that Sadiku still wields control over Albania’s secret police, he established an
objectively reasonable fear of future persecution. See Jamal-Daoud v. Gonzales,
403 F.3d 918, 922 (7th Cir. 2005) (holding that if applicant fails to establish past
persecution he is required to prove a genuine and objectively reasonable fear of
future persecution on account of one of the enumerated grounds).
An applicant’s conjecture about “current political conditions in a country [he]
left years ago,” however, will not furnish grounds upon which we may reverse, given
the deference due the IJ’s decision. Gramatikov v. INS, 128 F.3d 619, 620 (7th Cir.
1997). The IJ was entitled to give considerable weight to the State Department’s
report in determining whether Ahmeti’s fear of future persecution is objectively
reasonable. See id.; Toptchev v. INS, 295 F.3d 714, 722 (7th Cir. 2002). In this case
the IJ explained that, not only did the country reports document a substantial
change in Albania’s political climate, but Ahmeti’s own testimony that he ran a
business, dated Sadiku’s daughter, and freely returned to Albania after resettling
with relatives in Greece undermined his claim that he fears future persecution if
returned to Albania. Moreover, after the IJ’s decision, the political situation in
Albania has continued to improve, with the DP recently regaining power. That
change in government further erodes Ahmeti’s claim for asylum.
Finally, we cannot ignore that Ahmeti was required to show that he fears
persecution “on account of” a protected ground. 8 U.S.C. § 1101(a)(42)(A). Although
Ahmeti claims that Sadiku’s threats were directed against him because of his
affiliation with the DP, his testimony established only that Sadiku’s thugs warned
him to stay away from Sadiku’s daughter. Ahmeti thus may fear future encounters
with Sadiku upon his return to Albania, but he failed to prove that any potential
harm would be “on account of” anything other than a personal dispute. See
Kharkhan v. Ashcroft, 336 F.3d 601, 605 (7th Cir. 2003) (holding that applicant’s
fear of exposure to “dangers of an uncontrolled criminal element” did not
demonstrate fear of persecution on protected ground); see also Adebisi v. INS, 952
F.2d 910, 913 (5th Cir. 1992) (concluding that applicant failed to show fear of
persecution on account of tribe membership as opposed to personal dispute among
tribe members).
No. 04-2522 Page 7
Thus there is no basis in the record to compel reversal of the IJ’s decision.
DENIED.