Feto, Artan v. Gonzales, Alberto R. , 148 F. App'x 559 ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 4, 2005
Decided September 16, 2005
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 02-3867
ARTAN FETO, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals
v.
No. A74-875-517
ALBERTO R. GONZALES, Attorney
General of the United States,
Respondent.
ORDER
Albaninan citizen Artan Feto applied for asylum and withholding of
deportation, alleging that he faced persecution on account of his political beliefs.
The Immigration Judge denied relief, finding that Feto’s application and testimony
were not sufficiently detailed to establish past persecution or a likelihood of future
persecution and that Feto had not provided sufficient corroborating evidence to cure
this lack of specificity. Feto appealed, and the Board of Immigration Appeals
affirmed the IJ’s decision without opinion. We deny Feto’s petition for review.
The INS initiated deportation proceedings against Feto in 1996 based on his
use of a fraudulent passport to enter the United States. Feto conceded deportability
but filed an application for asylum and withholding of deportation, stating that his
“family has always been against the communist regime,” and as a result his life
No. 02-3867 Page 2
would be in danger should he be returned to Albania. He stated that his maternal
grandfather and seven of his cousins had been killed by the communists for their
membership in the Balli Kombetar or National Front Party, a Western-oriented and
anti-communist group that was formed in the 1940s. Because of their affiliation
with the NFP, Feto stated, his family was sent to an internment camp for six years
when he was a child. In addition, he asserted that his family was “always”
threatened by the government. For instance, they were not allowed to travel
without permits and he was permitted only very limited schooling. Although Feto
recognized that the individuals in power in Albania had changed since his
departure—indeed power was transferred to the Democratic Party in 1992 and then
to the Socialists in 1997—he claimed that “their intentions are the same,” and that
“the socialist[s] have waited for this opportunity to get revenge on the people that
opposed them when communism fell.”
At a hearing in January 1998 Feto testified in support of his application. He
stated that members of his family had been involved in the NFP since the 1940s
and he himself had joined in 1991. Because of his family’s involvement, Feto
claimed, in 1967 his father had been imprisoned and all of his property was
confiscated by the communists. Feto recalled that when he was a boy between the
ages of six and thirteen, he and his family were interned at a mountain camp. In
1991, at the age of twenty, Feto was drafted into the Albanian army. Three months
later, he deserted from the army, however, after a high-ranking communist official
overheard him and some friends discussing the democratic movement. Fearing he
would be charged with some unspecified crime, Feto fled to Greece, where he stayed
for five years before moving to the United States, stopping briefly in Albania to pick
up a forged passport. He entered the United States through Newark, New Jersey in
April 1996; two months later the INS concluded that his passport bore a false name
and issued an Order to Show Cause.
The IJ questioned Feto extensively about his failure to provide any
documentary support for his claims. Feto stated that he had given his attorney
unspecified “evidence” that he had been put in an internment camp, but his
attorney responded that he had “no evidence that he was in a camp in [his] file.”
Feto further suggested that he had given his attorney documents demonstrating
that his family had been charged with “action against communism”; his attorney
admitted that “he might have given them to me,” but added that he didn’t “have
them in [his] file.” As to his failure to produce documents supporting his
membership in the NFP, Feto claimed that he had left behind unspecified “proof” of
his party affiliation in Albania, where it was “kept in secrecy because the old
regime was still in power at that time.”
The IJ denied Feto’s application, finding that his testimony and his “skeletal”
application had established neither past persecution nor a well-founded fear of
future persecution. In making his determination, the IJ relied on a 1996 State
No. 02-3867 Page 3
Department country report, which advised that although post-communist Albania
struggles to recover from past institutionalized repression, citizens’ claims that they
will be “harassed because they espouse true democracy . . . generally lack
substance.” The IJ emphasized that Feto had not “submitted, nor . . . presented a
reasonable explanation for the absence of, any documentation in support of his
claim such as evidence of his family’s alleged internment, his father’s
imprisonment, his uncle’s membership in the Balli Kombetir, his uncle’s death, or
his own membership in the Balli Kombetir, nor did he attach letters or affidavits
supporting his claim.” He noted that Feto had “not presented any evidence to
support his wide-sweeping assertion that the present day Albanian government is
in essence a continuation of its Communist predecessor” or even “articulate[d] a
specific reason as to why the current government would be inclined to persecute him
in the future.” He also observed that Feto had never actually been arrested,
charged with an offense, or physically mistreated. Without detailed testimony or
corroborating evidence of any of the alleged incidents of persecution, the IJ
concluded, Feto had “not advanced . . . a persuasive claim.”
Because the BIA adopted the IJ’s reasoning without opinion, see 8 C.F.R.
§ 3.1(a)(7)(ii)(A)-(B), we review the IJ’s decision, reversing only if the record lacks
substantial evidence to support the IJ’s factual conclusions. Krouchevski v.
Ashcroft, 344 F.3d 670, 673 (7th Cir. 2003). The IJ’s application of the governing
legal standards is subject to de novo review. Begzatowski v. INS, 278 F.3d 665, 668
(7th Cir. 2002).
Feto’s sole argument on appeal is that the IJ improperly applied the
“corroboration rule” in deciding that his testimony was insufficient to meet his
burden of proof. Feto contends that the absence of an explicit credibility finding
obligates this court either to remand the case for clarification, see Diallo v. INS, 232
F.3d 279, 288, 290 (2d Cir. 2000), or to review the IJ’s opinion under the assumption
that Feto’s testimony was credible, see Lukwago v. Ashcroft, 329 F.3d 157, 164 (3d
Cir. 2003); Ladha v. INS, 215 F.3d 889, 901 (9th Cir. 2000).
After oral argument, the Justice Department submitted a strongly worded
letter that troubles us in both content and tone. In this letter, the Department
asserts that “[f]or the court to declare that [explicit credibility] determinations must
be made would violate the settled principles of deference the Supreme Court has
clearly laid down,” stating that neither the BIA nor the Immigration and
Nationality Act has imposed such a requirement. The irony of this statement could
not be more apparent: It is precisely in the interest of ensuring proper deference
that we have repeatedly encouraged immigration judges to make explicit credibility
determinations. See, e.g., Iao v. Gonzales, 400 F.3d 530, 533-34 (7th Cir. 2005)
(labeling the reluctance of immigration judges to make such determinations
“disturbing,” as “the reviewing court is left in the dark as to whether the judge
thinks the asylum seeker failed to carry her burden of proof because her testimony
No. 02-3867 Page 4
was not credible, or for some other reason”); accord Gontcharova v. Ashcroft, 384
F.3d 873, 877 (7th Cir. 2004); Diallo v. Ashcroft, 381 F.3d 687, 698 (7th Cir. 2004)
(“the limits of our deferential standard of review are tested when we are asked to
defer to findings of fact that the immigration judge has not made”).
Despite our discomfort with the Justice Department’s letter, a remand is not
necessary in this case, as we find that Feto’s testimony, even if taken as true, would
not establish past persecution or the likelihood of future persecution. See Medhin
v. Ashcroft, 350 F.3d 685, 690 (7th Cir. 2003) (affirming denial of asylum without
analyzing the credibility of a petitioner’s testimony, where the testimony would be
legally insufficient even if true).
Although the INA does not define the term “persecution,” we have held that
it can include “non-life-threatening behavior such as torture and economic
deprivation if the resulting conditions are sufficiently severe.” Capric v. Ashcroft,
355 F.3d 1075, 1084 (7th Cir. 2004). To show a well-founded fear of future
persecution, an applicant must establish that the fear is both subjectively genuine
and supported by objective evidence. Meghani v. INS, 236 F.3d 843, 847 (7th Cir.
2001).
Feto has not met this burden. Although he has alleged that his grandfather
and cousins were executed and that various economic deprivations have been
inflicted on his family because of their resistence to communism, Feto has never
suggested that he himself was ever arrested, physically harmed, or even specifically
threatened. In the absence of actual harm or the threat of harm, Feto’s claim for
asylum is doomed. See Ahmed v. Ashcroft, 348 F.3d 611, 615-616 (7th Cir. 2003).
Although Feto did allege that he was placed in an internment camp as a child, his
account of this event was vague and, given the significant lapse of time, would not
give rise to an inference that Feto’s fear of future persecution was reasonable. See
Krastev v. INS, 101 F.3d 1213, 1217 (7th Cir. 1996).
Feto admits that he fled Albania not because he had been charged with a
crime but because he feared he might be, and offers in support of his fear-of-future-
persecution claim only his own speculation that Albania’s new government is also
hostile to his political beliefs. Feto’s subjective belief that “the bad guys are still
running things” is plainly insufficient to warrant the grant of asylum, Gramatikov
v. INS, 128 F.3d 619, 620 (7th Cir. 1997), especially given the international media’s
report that power has in fact changed hands twice since Feto left Albania in 1991,
BBC News, Timeline: Albania, at
http://news.bbc.co.uk/1/hi/world/europe/country_profiles/1004984.stm. The current
socialist regime gained power in 1997, at which point the State Department in its
country report for Albania noted that “there is no post-Communist tradition of
retribution against political leaders and few instances thereof.” U.S. Dep’t of State,
COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES 1997 (Feb. 1998), quoted in
No. 02-3867 Page 5
Hasalla v. Ashcroft, 367 F.3d 799, 804 (8th Cir. 2004) (denying petition for review of
denial of asylum based on changed country conditions). That report went on to state
that “Albanians who fled the country during the Communist dictatorship are
welcomed back with citizenship restored and without adverse consequences, as are
all Albanians who left at any time after the Communist regime fell.” Id. And the
most recent State Department country report for Albania makes clear that the
current regime has “generally respected the human rights of its citizens” and that
“[t]here were no confirmed cases of detainees held strictly for political reasons.”
U.S. Dep’t of State, Country Reports on Human Rights Practices 2004 (Feb. 2005);
see also Mullai v. Ashcroft, 385 F.3d 635, 639 (6th Cir. 2004) (noting that, although
there is evidence of “general civil disorder and lawlessness” in modern-day Albania,
there is little likelihood of political persecution). These State Department reports
are entitled to “considerable weight,” Gramatikov, 128 F.3d at 620, and they
demonstrate that Feto’s fears of future persecution, though perhaps subjectively
genuine, are not objectively reasonable.
Accordingly, we DENY petition for review.