Mema, Ferdinant v. Gonzales, Alberto ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2570
FERDINANT MEMA,
Petitioner,
v.
ALBERTO R. GONZALES,
Respondent.
____________
Petition for Review of an Order of
the Board of Immigration Appeals.
No. A79-442-784
____________
ARGUED FEBRUARY 21, 2006—DECIDED JANUARY 11, 2007
____________
Before BAUER, KANNE, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. An immigration judge granted
Spartak Mema political asylum in January 2002, and now
his identical twin brother Ferdinant seeks that same
protection. Ferdinant Mema (Ferdinant)1, a native and
citizen of Albania, was detained at Fort Lauderdale Inter-
national Airport when he tried to enter this country
with an illegitimate Italian passport. He seeks asylum
claiming that he suffered persecution at the hands of
1
We refer to the asylum applicant by his first name to distin-
guish him from the other members of his family whose experi-
ences figure prominently in Ferdinant’s claim.
2 No. 05-2570
Albanian authorities in retaliation for his and his family’s
association with the Democratic Party in Albania. After a
hearing, an immigration judge denied Ferdinant asylum
and withholding of removal, and the Board of Immigra-
tion Appeals (BIA) affirmed. We remand for considera-
tion of relevant, probative evidence central to Ferdinant’s
claim that the immigration judge failed to consider the
first time around.
Ferdinant, born in 1982, lived in Albania with his
parents, his identical twin brother Spartak, his older
brother Edmond, and Edmond’s wife Suela. Edmond,
Spartak, and Suela all fled Albania—Edmond in 1997, and
the others in 1999—and later received asylum in this
country based on the persecution they suffered as mem-
bers of the Democratic Party of Albania and children of an
activist leader with that Party. Ferdinant, on the other
hand, left Albania for Greece in 1997, and lived there,
without permission, doing a variety of odd jobs, before
returning to Albania in 1999 and finally fleeing to this
country in 2002.
At his hearing before the immigration judge, Ferdinant
testified that his family members had been subject to
persecution at the hands of government authorities in
retaliation for their membership and participation in the
Democratic Party in Albania and specifically, as retribu-
tion for activist and leadership roles assumed by Sabri
Mema, Ferdinant’s father.
In his supplement to his application for asylum,
Ferdinant recalls several instances in which family
members were singled out and harassed based on an
affiliation with the Democratic Party or their relationship
to Sabri Mema. For example, Ferdinant described an
incident in 1998 when his identical twin brother Spartak
was stopped by police officers on his way to a Democratic
Party meeting. The officers detained Spartak for five or
No. 05-2570 3
six hours, beat him and threatened him. Just a few weeks
later, Sabri had a run-in with Socialist authorities while
working as a poll watcher in an important election. After
reporting voting irregularities, Sabri was detained,
instructed to remain silent, and threatened with unspeci-
fied consequences. In defiance of the threats, Sabri re-
ported his experiences to the Democratic Party which later
filed a suit challenging the results of the election. Sabri
received a summons to appear in court for the trial, but
when he appeared the matter had been continued. Accord-
ing to Ferdinant, members of the Socialist Party had
manipulated the court dates to garner time to strong-arm
those who might testify against the Party in the suit.
Indeed, Ferdinant explained, two days after his father,
Sabri, was scheduled to testify, Albanian police arrested
Sabri and brought him to the police station where officers
issued threats in an attempt to influence his testimony.
Three weeks later, Spartak received a subpoena to
appear at the prosecutor’s office. When he arrived, he
was detained, beaten, and told he would be prosecuted
unless he convinced his father to alter his anticipated
testimony. Spartak received a second subpoena the
following month and again appeared at the prosecutor’s
office where officials accused him of giving false testimony
on the earlier occasion. Again, officials beat him, threat-
ened him, and accused him of disrupting the referendum
vote.
Ferdinant’s supplemental application also describes the
events that pushed Spartak and Suela to flee for their
safety. On April 23, 1999, Spartak received a summons
to appear as a defendant in a criminal proceeding initi-
ated by the Ministry of Internal Affairs. While Spartak
awaited his court appearance, Sulea Mema, Ferdinant
and Spartak’s sister-in-law, also received a subpoena to
appear at the prosecutor’s office. Once there, Suela refused
orders to sign a document denouncing her father-in-law as
4 No. 05-2570
a liar and troublemaker. Despite threats of criminal
prosecution, Suela held firm. Although she was released
on that day, a few days later, on May 10, 1999, she was
arrested and taken to the prosecutor’s office where officials
again ordered her to sign the papers. When she refused,
she was attacked, beaten, and raped.
Ferdinant, who had recently returned from Greece, went
with the rest of his family to a hospital in Tirana to seek
treatment for Suela. While the family was away, Albanian
police destroyed the Mema home. In response to these
events, the family decided that Spartak and Suela had to
leave Albania. On May 19, 1999, the two left Albania,
leaving Ferdinant behind to stay with their parents.
Ferdinant went to stay with relatives to avoid further
trouble, but Sabri’s troubles continued, and it was not
long before police arrested him again after speaking at a
rally. This time they held him for four days.
The bulk of Ferdinant’s claim of past persecution cen-
ters on the events of June 20, 2001. Ferdinant testified
that on that day five masked police officers forced him into
a car at gunpoint, took him to an abandoned house, and
asked him why he had come back to cause trouble. Accord-
ing to Ferdinant, the officers repeatedly referred to him by
his twin brother, Spartak’s, name. When Ferdinant
insisted that he was not Spartak the officers beat him. The
masked men demanded that Ferdinant gather informa-
tion about his father and other Democratic Party support-
ers and told Ferdinant to warn his father that if Sabri
interfered with voting, Ferdinant would pay the price.
After this, they continued to beat Ferdinant until he
passed out.
Two days after the attack, Ferdinant testified, his father
described his family’s suffering at a pro-democratic rally.
The following day, the family received word that the
police were looking for Ferdinant. That news sent
No. 05-2570 5
Ferdinant and his mother into hiding in a small town in
Northern Albania. Ferdinant’s father continued with his
activities and even decided to run for office in the local
elections, but changed his mind after March 10, 2002,
when he was approached by several officers who had a
warrant for Ferdinant’s arrest. Meanwhile, Ferdinant
and his mother, having been tipped off that the police had
come looking for Ferdinant, moved to yet another small
town until Ferdinant was able to secure passage out of
Albania on May 25, 2002. He arrived at Fort Lauderdale
International Airport on May 31, 2002.
After a hearing on November 20, 2002, the immigra-
tion judge issued an order denying Ferdinant’s applica-
tions and ordering his removal to Albania. The BIA
adopted and affirmed the decision of the immigration
judge adding a few sentences describing why the im-
migration judge’s credibility determination was supported
by the record and noting that Ferdinant received due
process of law. (R. at 2-3). Where the BIA affirms, adopts,
and supplements, we review both the immigration judge’s
decision and any additional reasoning of the BIA. Giday v.
Gonzales, 434 F.3d 543, 547 (7th Cir. 2006). We must
affirm the immigration judge’s decision if it is supported
by reasonable, substantial, and probative evidence on the
record considered as a whole, and overturn it only if the
record compels a contrary result. INS v. Elias-Zacarias,
502 U.S. 478, 481 & n.1 (1992); Balliu v. Gonzales, 467
F.3d 609, 612 (7th Cir. 2006).
In evaluating whether the record compels a contrary
result, we must first determine how much attention to
give to the accounts of the Mema family’s struggles in
Albania. Although Ferdinant’s own participation in the
Democratic party was not extensive, if his testimony is to
be believed (more on that later), his father was an active
and vocal agitator in the Democratic party, and his family
suffered persecution at the hands of the Socialists as a
6 No. 05-2570
result. On the one hand, our asylum laws ordinarily do not
extend protection to persons merely because a family
member has suffered persecution. Mabasa v. Gonzales, 455
F.3d 740, 746 (7th Cir. 2006); Tamas-Mercea v. Reno, 222
F.3d 417, 424 (7th Cir. 2000). On the other hand, asylum
is available to persons who have been persecuted based
on imputed political opinion, including situations where a
persecutor attributes the political opinion of one or
more family members to the asylum applicant. See, e.g.,
Nakibuka v. Gonzales, 421 F.3d 473, 478 (7th Cir. 2005);
Tolosa v. Ashcroft, 384 F.3d 906, 910 (7th Cir. 2004);
Ciorba v. Ashcroft, 323 F.3d 539, 542, 545 (7th Cir. 2003);
Iliev v. INS, 127 F.3d 638, 642 (7th Cir. 1997). To succeed
on a claim of imputed political opinion, an applicant
must show that her persecutors attributed a political
opinion to her, Lwin v. INS, 144 F.3d 505, 509 (7th Cir.
1998) and that this attributed opinion was the motive for
the persecution. See Elias-Zacarias, 502 U.S. at 482-83.
Sometimes this situation is described as persecution based
on membership in a social group—i.e. the family group—
but in either case the necessary proof is the same. Iliev,
127 F.3d at 642. Examples of persecution based on family
membership abound in this circuit’s case law. See, e.g.,
Nakibuka v. Gonzales, 421 F.3d 473, 478 (7th Cir. 2005)
(applicant repeatedly beaten because she was the maid
and “part of the family” of a vocal opponent of the Ugan-
dan President); Niam v. Ashcroft, 354 F.3d 652, 656-57
(7th Cir. 2004) (applicant beaten and persecuted because
of his family’s anti-communist reputation); Tolosa, 384
F.3d at 910 (government officials questioning implied that
they imputed political beliefs of the father to his daugh-
ter); Ciorba, 323 F.3d at 545 (applicant was harassed—but
not persecuted—based on family’s anti-communist poli-
tics); Lwin, 144 F.3d at 509-10, 512-13 (agreeing that
parents of political dissidents can seek asylum but only
if the child’s political opinion has been imputed to them
No. 05-2570 7
and they can otherwise demonstrate past or fear of future
persecution because of it); Iliev, 127 F.3d at 642 (applicant
from family of pro-democracy activists failed to demon-
strate that he would be singled out for persecution based
on his membership in the family); Najafi v. INS, 104
F.3d 943, 945, 947 (7th Cir. 1997) (fear of future persecu-
tion due to family association only supported where
applicant can demonstrate potential for mistreatment
because of a blood tie to the political dissidents).
Oft times persecutors target children of political dissi-
dents not because they have imputed the parents’ political
opinion to the children, but as a means of harassing,
intimidating, and influencing the behavior of the parent.
See Djouma v. Gonzales, 429 F.3d 685, 688 (7th Cir. 2005)
(noting that family members of activists are eligible for
asylum if the government has persecuted that family
member as a method of collective punishment of its
political enemies). See also, Cecaj v. Gonzales, 440 F.3d
897, 898 (7th Cir. 2006) (dissident’s brother kidnapped as
a means to force the dissident to abandon his political
activities); Gjerazi v. Gonzales, 435 F.3d 800, 803 (7th Cir.
2006) (kidnappers conditioned the release of the child of
anti-socialist activist on the Socialist Party winning the
vote in town in which applicant worked at the polling
station).
According to Ferdinant’s testimony, the Albanian
authorities targeted Ferdinant and his siblings in an
attempt to influence Sabri to withdraw his support for and
participation in the Democratic party. If Ferdinant was
or will be persecuted because of his relationship to Sabri,
either because the Socialists imputed Sabri’s political
opinions to Ferdinant, or as a means of punishing or
8 No. 05-2570
influencing Sabri, Ferdinant is entitled to asylum.2 The
problem for Ferdinant, however, is that the immigration
judge believed that Ferdinant had enhanced his descrip-
tion of his sole claim of personal persecution, the June 20,
2001 detention and beating, and that the unenhanced
version would not suffice for a finding of past persecution.
(R. at 55-56). We must view this determination with
deference. Diallo v. Ashcroft, 381 F.3d 687, 698 (7th Cir.
2004) (credibility determinations are factual determina-
tions owed our strong deference). In the alternative, the
immigration judge determined that even if the enhanced
version were true, the single case of detention and beat-
ing was insufficient to warrant a finding of past persecu-
tion. (R. at 53). Although another judge may have found
that such an abduction at gunpoint, detention, and beat-
ing constitute past persecution, we cannot say that the
record compels a contrary result. Elias-Zacarias, 502 U.S.
at 481; Bejko v. Gonzales, 468 F.3d 482, 485 (7th Cir. 2006)
(“we do not hold here that the described confinement
and threats are insufficient to constitute past persecution
as a matter of law. Instead, the only question before this
court is whether the immigration judge was compelled to
find that such confinement constituted past persecution.”).
A finding of past persecution, however, is not Ferdinant’s
only avenue to asylum. He may also demonstrate that
he has a well-founded fear of future persecution on the
basis of his race, religion, nationality, membership in a
social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A);
2
Of course, if Ferdinant demonstrates that he has been perse-
cuted in the past, the court must presume that he has a
well-founded fear of future persecution. The government may
then establish, by a preponderance of the evidence, that the
conditions in the petitioner’s homeland have improved such
that persecution of the petitioner is unlikely to recur. Balliu,
467 F.3d at 612; 8 C.F.R. § 208.13(b)(1).
No. 05-2570 9
8 U.S.C. § 1158(b)(1)(B)(i); Balliu, 467 F.3d at 612. To do
so he need not prove that the situation he describes in
Albania will probably result in persecution, only that
persecution is a reasonable possibility. INS v. Cardoza-
Fonseca, 480 U.S. 421, 440 (1987) (“There is simply no
room in the United Nations’ definition for concluding
that because an applicant only has a 10% chance of being
shot, tortured, or otherwise persecuted, that he or she has
no ‘well-founded fear’ of the event happening.”) An appli-
cant seeking to demonstrate a well-founded fear of future
persecution must prove first that he has a subjectively
genuine fear of future persecution, Ahmed v. Ashcroft, 348
F.3d 611, 618 (7th Cir. 2003), and then that a reason-
able person in his situation would fear persecution if
forced to return to his native country. Kllokoqi, 439 F.3d
at 345.
These standards for establishing fear of future persecu-
tion are entirely absent from the immigration judge’s
decision. That decision largely glosses over the issue of
fear of future persecution, concluding early on and without
explanation that “even if the respondent’s facts are true,
the incident in June of 2001 does not rise to the level of
past persecution and the respondent has not established
that a reasonable person in his circumstances would fear
future persecution within the meaning of Section 208 of
the Act.” (R. at 53). To the extent there is any explana-
tion of this conclusion it comes toward the end of the
decision when the immigration judge provides two skeletal
rationales for his conclusion that Ferdinant does not face
a well-founded fear of future persecution. The first is that
Ferdinant remained in Albania for almost a year after the
incident for which he claims past persecution. (R. at 58).
The second is that he was able to obtain a valid passport
and to leave without difficulty. Id. The relevance of these
facts to Ferdinant’s fear of future persecution is sketchy
at best, but more importantly, it wholly ignores the
evidence that is relevant to his fear of future persecution.
10 No. 05-2570
Although it is true that Ferdinant lived unmolested in
Northern Albania as the immigration judge notes,
Ferdinant fled his home village for Tirane, a village eight
hours away, to avoid the persecution that his brother and
sister-in-law had suffered. (R. at 90-91). It was when he
returned that he was abducted, detained and beaten. (R.
at 92-93, 170-71). Shortly after that incident, Ferdinant
fled to yet another village, (R. at 106-07), but was able to
stay there only until he got word that the police had come
looking for him. (R. at 109-10).
Ferdinant does not have a well-founded fear of persecu-
tion if he can avoid persecution by relocating to another
part of the country, Ahmed v. Gonzales, 467 F.3d 669, 675
(7th Cir. 2006); 8 C.F.R. § 208.13(b)(2)(ii), but we cannot
require him to live in hiding. See Giday v. Gonzales, 434
F.3d 543, 555 (7th Cir. 2006). The immigration judge
held that he did not find it plausible or credible that
Ferdinant was sought by police while in hiding, but he
offers not a single reason for this adverse credibility
finding. Although we accord substantial deference to an
immigration judge’s credibility determinations, we cannot
defer to a credibility determination unmoored from the
record, based on insufficient evidence or “based on noth-
ing but the immigration judge’s personal speculation or
conjecture.” Giday, 434 F.3d at 550. Credibility find-
ings must be based on “specific cogent reasons that bear
a legitimate nexus to the finding and that go the heart
of the applicant’s claim.” Id. We reject the immigration
judge’s credibility determination on this particular fact
as lacking any reason whatsoever—cogent, specific, or
otherwise.
The immigration judge’s second rational—that Ferdinant
was able to obtain an Albanian passport and leave the
country—simply is not probative of his fear of future
persecution. We have pointed out on several occasions
that governments are often all too happy to see undesir-
No. 05-2570 11
ables and dissidents depart. Durgac v. Gonzales, 430 F.3d
849, 852 (7th Cir. 2005); Grupee v. Gonzales, 400 F.3d
1026, 1027 (7th Cir. 2005); Hengan v. INS, 79 F.3d 60, 63
(7th Cir. 1996); Angoucheva v. INS, 106 F.3d 781, 791 (7th
Cir. 1997) (Rovner, J., concurring); but see Dobrota v. INS,
195 F.3d 970, 974 (7th Cir. 1999).
More importantly, however, the immigration judge failed
to mention even once, either at the hearing or in his
decision, the most pressing piece of evidence regarding
fear of future persecution: Ferdinant was persecuted
because the persecuting authorities believed he was his
identical twin brother, Spartak, and thus they imputed
Spartak’s political opinions and activities to Ferdinant.
Accordingly, in this case of mistaken identity, whether
Ferdinant can reasonably fear persecution if forced to
return to Albania depends upon whether Spartak could
reasonably fear persecution if returned to Albania—a
question to which the immigration judge never turned.
The immigration judge mentions, in passing, that
Ferdinant had an identical twin brother who had been
granted asylum, but never refers to any of the evidence
that Ferdinant submitted regarding Spartak’s fear of
future persecution or the possibility that those persecut-
ing Spartak would be just as likely to come after
Ferdinant. In fact, despite the fact that Spartak and Suela
were just outside the courtroom door waiting to testify, the
judge instead chose to accept the statements submitted on
their asylum applications in lieu of hearing their testi-
mony. (R. at 133). A finding that Ferdinant has failed to
establish a well-founded fear of future persecution ignores
the most significant piece of evidence relating to the
question and is thus a finding unsupported by the record.
See Gjerazi v. Gonzales, 435 F.3d 800, 811 (7th Cir. 2006)
(a finding that ignores significant portions of the evi-
dence is not supported by the record). An applicant for
asylum is entitled to a reasoned analysis, not one which
12 No. 05-2570
wholly disregards relevant, probative evidence. See id. at
813 (reversing and remanding where the immigration
judge ignored relevant, probative evidence of political
motivation); Mohideen v. Gonzales, 416 F.3d 567, 571 (7th
Cir. 2005) (reversing and remanding where the immigra-
tion judge ignored evidence regarding the “mixed motive”
aspect of his claim); Tolosa v. Ashcroft, 384 F.3d 906,
909-10 (7th Cir. 2004) (reversing and remanding where
the immigration judge ignored evidence that the ap-
plicant was persecuted based on ethnicity); Yi-Tu Lian v.
Ashcroft, 379 F.3d 457, 461-62 (7th Cir. 2004) (reversing
and remanding where the immigration judge ignored a
long list of relevant evidence); Niam v. Ashcroft, 354 F.3d
652, 655, 658 (7th Cir. 2004) (reversing and remanding
where the immigration judge ignored key evidence of
persecution).
All we know of Spartak’s fear of future persecution is
that which is contained in the statement attached to his
asylum application. (R. at 204-208). The order granting
him asylum is a one page boilerplate form which contains
no reasoning for the grant of asylum. (R. at 191). Despite
this, there are a few things we can deduce about Spartak’s
fear of future persecution. To qualify for asylum, Spartak
had to demonstrate either that he was persecuted in the
past based on one of the enumerated classifications in
the statute or, alternatively, that he had a well-founded
fear of future persecution for the same reasons. See 8
U.S.C. § 1101(a)(42)(A); 8 U.S.C. § 1158(b)(1)(B)(i); Balliu
v. Ashcroft, 467 F.3d 609, 612 (7th Cir. 2006). Past perse-
cution alone rarely suffices for a grant of asylum. A
refugee can qualify for asylum based on past persecution
alone if the past persecution is particularly severe
and heinous. Balliu, 467 F.3d at 612, 8 C.F.R.
§ 208.13(b)(1)(iii)(A); Bucur v. INS, 109 F.3d 399, 404-05
(7th Cir. 1997) (deducing that this exception is “designed
for the case of the German Jews, the victims of the Chi-
No. 05-2570 13
nese ‘Cultural Revolution,’ survivors of the Cambodian
genocide, and a few other such extreme cases.”). We think
it unlikely that Spartak’s persecution falls within this
very narrow exception. Consequently, we could venture
a reasonable guess that, because Spartak obtained asylum,
he must have demonstrated that he had a reasonable
fear of future persecution. We need not, however, exercise
our powers of deduction. Because the immigration judge
wholly ignored the relevant and probative evidence on
fear of future persecution, this case must be remanded
for proper consideration of the evidence relating to
Spartak’s persecution and Ferdinant’s fear of future
persecution.3
Before we remand, however, we can resolve Ferdinant’s
due process claim that the immigration judge erred by
failing to inform Ferdinant of his right to request with-
drawal of his application for admission. Ferdinant as-
serts that the failure to inform him of that right pursu-
ant to 8 C.F.R. § 1240.11(a)(2) and 8 U.S.C. § 1225(a)(4)
violated his due process rights. The government argues
that Ferdinant waived the argument by failing to raise
it in his administrative appeal. Furthermore, the govern-
ment argues, the claim lacks merit because the regulation
that Ferdinant cites (8 C.F.R. § 1240.11(a)(2)) only re-
quires immigration judges to inform an applicant of his
eligibility for benefits enumerated “in this chapter” of the
regulations. (Government Brief at 37) (citing 8 C.F.R.
§ 1240.11(a)(2)) (emphasis in original). According to the
government, the “chapter” only refers to application for
asylum, withholding of removal, cancellation of removal,
3
The Department of Homeland security had an adequate
opportunity to defend its position as to whether Spartak had a
reasonable fear of future persecution and should now be pre-
cluded from relitigating this issue in Ferdinant’s case. See
Hamdan v. Gonzales, 425 F.3d 1051, 1059 (7th Cir. 2005).
14 No. 05-2570
adjustment of status, suspension of deportation, but not
withdrawal of an application for admission. Id. (citing 8
C.F.R. § 140 et seq.) This is a puzzling argument, as the
entirety of § 1235.4 of this same chapter—Chapter V,
entitled “Executive Office for Immigration Review, Depart-
ment of Justice”—specifically addresses withdrawal of
applications for admission. 8 C.F.R. § 1235.4.
In any case, we need not resolve the issue of waiver or
the reach of 8 C.F.R. § 1240.11(a)(2). Ferdinant’s due
process claim based on the immigration judge’s failure to
inform is reversible error only if he can demonstrate
prejudice arising from it, and he has failed to do so. Bejko
v. Gonzlaes, 468 F.3d 482, 487-88 (7th Cir. 2006) (citing
Ramos v. Gonzales, 414 F.3d 800, 804 (7th Cir. 2005), cert.
denied 126 S. Ct. 1331 (2006); Feto v. Gonzales, 433 F.3d
907, 912 (7th Cir. 2006)). Just like Bejko, Ferdinant was
represented by counsel in the proceedings before the
immigration judge, and does not allege that he was
actually unaware of that right to withdraw his applica-
tion for admission. Id. at 488. Moreover, just like Bejko,
his only allegation of prejudice before this court is that had
he been so informed, he “may have focused his endeavors
on obtaining it.” Id. Because he has not alleged that his
actions would have been different or that he was unaware
of the right, he has not demonstrated any prejudice that
resulted from the immigration judge’s alleged failure to
inform him of his rights.
Ferdinant’s brief on appeal contains a heading stating
that “The Immigration Judge Erred in Determining That
the Petition Did Not Meet His Burden for Asylum, With-
holding of Removal and Protection Pursuant to the
Torture Convention.” (Mema Brief at 31), but the para-
graphs below that heading fail to set forth any standards
or arguments specific to his claims for relief based on the
Convention Against Torture or for withholding of removal.
Consequently, these undeveloped claims have been waived.
Balliu, 467 F.3d at 614.
No. 05-2570 15
The petition for review is granted, the order of removal
vacated, and the case remanded for further proceedings
consistent with this opinion. Each party to bear its own
costs.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-11-07