Emini, Arta v. Gonzales, Alberto R. , 247 F. App'x 812 ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued August 7, 2007
Decided September 10, 2007
Before
Hon. William J. Bauer, Circuit Judge
Hon. Michael S. Kanne, Circuit Judge
Hon. Ilana Diamond Rovner, Circuit Judge
No. 06-3669
Arta Emini, Petition for Review of an Order
Petitioner, of the Board of Immigration Appeals
v. No. A95-574-815
Alberto R. Gonzales,
Respondent.
ORDER
Arta Emini, a native Albanian, petitions for review of an order of the Board of
Immigration Appeals affirming the denial of her application for asylum, withholding
of removal, and protection under the Convention Against Torture. Because substantial
evidence does not compel a finding that Emini suffered persecution or that she has a
well-founded fear of future persecution, we deny Emini’s petition for review.
I. Background
In support of her application for asylum, Emini testified at a hearing before the
Immigration Judge (“IJ”) to incidents of interrogation and physical abuse at the hands
No. 06-3669 Page 2
of the police and threats from university faculty arising from her involvement in the
Albanian Democratic Party, which was the leading opposition party in Albania. The
IJ found that Emini testified credibly to these incidents but denied her application for
asylum and withholding of removal because the incidents did not amount to past
persecution and she had failed to demonstrate a well-founded fear of future
persecution.
Emini testified at the hearing to the following events. She became involved in
Albanian politics in 1996 when she joined the Youth Forum of the Democratic Party
of Albania. Emini also had associations with the Democratic Party through her father,
who had been a member since the early 1990’s and who had held the position of party
secretary in the village of Bulgarec. Because of her father’s affiliation with the
Democratic Party and because her birthplace was in Bulgarec, Emini was appointed
to the position of election observer to oversee the June 1997 polls in Bulgarec. The
Socialist Party won the June 1997 election, however, remaining in power through the
time that Emini fled from Albania to the United States in August 2001.
Emini entered college to pursue a nursing degree in 1997 and became a student
organizer for the Youth Forum. It was here that she first experienced problems
because of her political affiliation. Emini’s professors, who were sympathizers of the
Socialist Party, advised her to give up her political activities and to focus her attention
on her studies. In May 1998, the Vice Dean of the college threatened that he would
prevent Emini from graduating and have her arrested if she continued her political
involvement. Despite this threat, Emini graduated with a degree in nursing in 2001.
She was unsuccessful in her attempts to find a nursing job following graduation,
however, because the Socialist Party controlled the hospitals and would not hire
members of the Democratic Party.
While attending the university, Emini’s involvement with the Youth Forum also
came to the attention of the police. She and several friends were arrested and
interrogated by the police and Albanian state intelligence service in September of 1998
because of their participation in a silent protest in memory of Azem Hajdari, the
assassinated leader of the Democratic Party. During the interrogation, the police told
Emini and her friends that they knew that they had organized the protest and that
they would go to jail for doing so. The police then separated Emini and her friends,
taking them to different rooms and questioning them for approximately half an hour.
One officer forced Emini against a wall, hurting her left shoulder and the right side of
her head. The officer used profanity and threatened her, trying to scare Emini into
quitting her political activities. Emini and her friends were not imprisoned that day.
A year later, in September 1999, Emini went to the police station accompanied by
her father in response to a summons requesting that she appear to clarify her political
No. 06-3669 Page 3
involvement. When she arrived, she was taken to a room where she was questioned
for three hours by two men in civilian clothing about student plans and demonstrations
to commemorate Hajdari’s assassination. During the questioning, the officers slapped
Emini so hard that her nose bled and dragged her by hair. The officers also hit and
bruised her legs with rubber sticks, threatened her life and the lives of her family
members, and threatened to sell her into prostitution if she did not provide the
information that they sought. After she was released, Emini did not seek medical
attention for her injuries.
The following September, as local elections neared, Emini and several of her friends
were returning from a campaign rally sponsored by the Democratic Party in another
village when they were stopped by six police officers. The officers questioned them
about where they had been and what they were doing. The officers threatened Emini
and her friends, telling them that they would “get it in the neck” if they continued their
political activities. The officers hit Emini in the face and dragged her by her hair. Her
male friends were punched in the face. The officers detained the group for an hour and
then released them.
Emini was unable to vote in the local elections that September because her name,
along with the names of her family members, had been left off of the list of registered
voters. Emini believed that this was a tactic used by the Socialist Party to prevent
members of the Democratic Party from voting in the election.
In October 2000, Emini was returning home from a protest challenging the Socialist
Party’s alleged manipulation of the election results when she was forced into a car with
individuals who appeared to be agents of the secret service. She was taken to the
police station where she was placed in a room, punched in the face, and detained for
three days. A family friend and doctor later treated Emini’s injuries at her home, and
she took time off from school to recover.
Emini’s name was included on the list of registered voters by the time of the
Parliamentary elections in June of 2001. She continued to participate in protests
following this election. At a demonstration on July 15, 2001, Emini saw police openly
beat protesters, place them in police cars, and arrest them. An agent of the secret
service apprehended her, but her friends were able to extract her from his grip.
Following this incident, Emini stayed with friends because she feared that the
police would come to her home. Two warrants for her arrest were sent to her home
during this period. Emini did not report to the police station because she feared
further harm at the hands of the police. Emini did not present the warrants to the IJ
at the hearing because her father had torn them up and thrown them away. On
No. 06-3669 Page 4
August 20, 2001, shortly after her parents received the warrants, Emini left Albania;
she arrived in the United States on August 25, 2001.
II. Analysis
Where, as here, the BIA affirms the IJ’s decision without an opinion, we review the
IJ’s analysis directly. Moreno-Cebrero v. Gonzales, 485 F.3d 395, 398 (7th Cir. 2007).
We review the IJ’s decision under the deferential “substantial evidence” standard: “we
require only that the decision be supported by reasonable, substantial, and probative
evidence on the record considered as a whole.” Gjerazi v. Gonzales, 435 F.3d 800, 807
(7th Cir. 2006) (citation and internal quotation omitted). “It is irrelevant whether or
not this court would have reached the same conclusion if in the IJ’s position.” Bejko
v. Gonzales, 468 F.3d 482, 485 (7th Cir. 2006). We will reverse only if the evidence
compels a different result. Boci v. Gonzales, 473 F.3d 762, 766 (7th Cir. 2007).
Asylum may be granted “to aliens who apply for asylum in a timely fashion, meet
certain procedural requirements, and qualify as refugees.” Sosnovskaia v. Gonzales,
421 F.3d 589, 593 (7th Cir. 2005) (citing 8 U.S.C. § 1158(b)(1)(A)). A “refugee” is
“a person who is unable or unwilling to return to the country of her nationality
because of ‘persecution or a well-founded fear of future persecution on account or
race, religion, nationality, membership in a particular social group, or political
opinion. . . .’” Id. (quoting 8 U.S.C. § 1101(a)(42)(A)). The asylum applicant bears the
burden of proving by a preponderance of the evidence that she qualifies as a refugee
according to this definition. Id. (citing 8 C.F.R. § 208.13(a)). If the applicant
establishes that she suffered past persecution, she is presumed to have a well-founded
fear of future persecution. Id. (citing 8 C.F.R. § 208.13(b)(1)).
On appeal, Emini challenges the IJ’s denial of her petition for asylum based on
political persecution. This Court has explained that persecution “must rise above the
level of harassment.” Prela v. Ashcroft, 394 F.3d 515, 518 (7th Cir. 2005). The acts in
question must go beyond merely being unfair, unjust, or unlawful. Margos v. Gonzales,
443 F.3d 593, 596 (7th Cir. 2006). They instead must threaten death, imprisonment,
or substantial harm or suffering. Boci, 473 F.3d at 766 (citing Sharif v. INS, 87 F.3d
932, 935 (7th Cir. 1996)). Persecution also “must result from more than unpleasant or
even dangerous conditions in [the] home country.” Nakibuka v. Gonzales, 421 F.3d
473, 476 (7th Cir. 2005) (citation omitted). “Past persecution may be shown through
even a single episode of detention or physical abuse, if it severe enough.” Id. (citations
omitted). And it “may include detention, arrest, interrogation, prosecution, illegal
searches, confiscation of property, surveillance, beatings, [ ] torture, behavior that
threatens the same, and non-life-threatening behavior such as torture and economic
deprivation if the resulting conditions are sufficiently severe.” Gjerazi, 435 F.3d at 808(internal quotations and citation omitted).
No. 06-3669 Page 5
Emini based her claim of persecution on the following incidents: (1) the threat from
the university’s dean; (2) the September 1998 arrest and interrogation, during which
an officer hurt Emini’s left shoulder and the right side of her head; (3) in September
1999, the interrogation and 20-hour detainment at the police station, during which an
officer slapped her, causing her nose to bleed, and grabbed her by her hair; (4) in
September 2000, the police stopped Emini and her friends, detained them for an hour,
hit Emini in the face and dragged her by her hair, and told her that she and her friends
would “get it in the neck” if they continued their political activities; and (5) in October
2000, the police detained Emini for three days at the police station, punching her in the
face and pulling her hair when she refused to cooperate. Considering these incidents
in the aggregate, it is possible to find that Emini suffered past persecution. The IJ,
however, found that these incidents were not so severe as to constitute persecution.
The record does not compel a contrary finding.
This Court has examined a broad spectrum of asylum cases in which the applicant
claims past persecution based, in part, on detentions. See Diallo v. Ashcroft, 381 F.3d
687, 698 (7th Cir. 2004) (recognizing that “short detentions or detentions without
physical abuse seem to have been less apt to reach the ‘persecution’ threshold required
by this court”). On prior occasions, we have denied petitions for review where the
asylum applicant claimed past persecution arising from being detained, beaten, and
deprived of food for three days, see Dandan v. Ashcroft, 339 F.3d 567, 574 (7th Cir.
2003); from having a van stolen with gun shots fired in the vicinity of the applicant’s
yard, being questioned at a police station and a fine imposed the following day, being
confined at a police station for two weeks, and having his home and family threatened,
see Bejko, 468 F.3d at 485-86; and from being interrogated on several occasions,
arrested, detained once for thirty-six hours, and having his home searched and
property confiscated but never being beaten, tortured, or forced to perform hard
labor, see Zalega v. INS, 916 F.2d 1257, 1260 (7th Cir. 1990). Because she suffered
physical abuse, as well as arrests, interrogations, and threats, Emini’s claim of past
persecution may be deemed more serious than those asserted in the above-cited cases.
At the same time, the physical abuse, coupled with the detentions and
interrogations, that Emini experienced does not rise to the level of severity suffered by
the petitioner in Asani v. INS, 154 F.3d 719, 721 (7th Cir. 1998). In Asani, this Court
found it likely that the detentions at issue were sufficiently serious as to constitute
past persecution where the petitioner was detained in a jail cell for two weeks with no
room to sit, deprived of food and water, and repeatedly interrogated. Id. at 724. He
was later detained again and beaten with fists and a police stick, during which two
teeth were knocked out. Id. Likewise, in Vaduva v. INS, 131 F.3d 689, 690 (7th Cir.
1997), this court agreed with the BIA’s finding of past persecution where, in a single
beating, the petitioner was punched, his face bruised, and his finger broken.
No. 06-3669 Page 6
While this is hardly an exhaustive review of this Court’s consideration of claims of
past persecution involving detentions, it suffices to show that the detentions and
physical abuse that Emini experienced, while serious, do not compel a finding of past
persecution.1 Unlike the petitioner in Asani or Vaduva, Emini did not offer specific
information about the degree of her injuries that would allow us to assess the severity
of the acts. See, e.g., Dandan, 339 F.3d at 574 (“A standard of review that requires
our being compelled to reach a conclusion contrary to the BIA means that we
necessarily search for specifics, not generalities.”) (emphasis in original). While this
Court has expressed its distaste with being tasked with quantifying suffering for
purposes of determining asylum eligibility, see id., it is our responsibility. Here,
Emini’s detentions and physical abuse are not of such a greater degree than those at
issue in Dandan, for example, that we are compelled to find that she was subject to
past persecution.
We note that this conclusion comes with reservation. The context of Emini’s harms
shows that she suffered physical abuse, detentions, and threats because of her support
of the Democratic Party. The detentions were systematic: they occurred at times of
increased political activism during which the police targeted Emini because of her
efforts for the Democratic Party as a means of quelling popular support. Additionally,
her detentions and physical abuse were repetitive and their length and the associated
violence increased over time. This increase in severity was accompanied by threats on
her life and the lives of her family members, threats of imprisonment, and threats of
forced prostitution. At the time Emini fled Albania, the police were seeking her out,
in line with their threats, by issuing two warrants. While these facts support a finding
of persecution, they do not compel such a finding, and the law requires that such a
finding be compelled before we grant a petition for review. Boci, 473 F.3d at 766.
Because Emini did not demonstrate past persecution, she is not entitled to a
rebuttable presumption of future persecution. She may nevertheless establish “a well-
founded fear of future persecution if [her] fear is subjectively genuine and objectively
reasonable in light of credible evidence.” Gjerazi, 435 F.3d at 808 (citations omitted).
As evidence of the objective component of her fear of future persecution, Emini
offered testimony about the two arrest warrants that were sent to her parents’ home.
Since she had not seen the warrants, she did not know whether they required her
arrest or requested her presence for questioning. She also offered a letter from her
father, which states that two policemen showed up with a summons for Emini, which
he tore up. The letter continued that Emini’s father advised her against appearing at
1
We do not suggest that it is necessary for the asylum applicant to have bones
broken or teeth lost in order to establish the requisite severity of abuse for asylum
purposes.
No. 06-3669 Page 7
the Prosecutor’s Office. A few days later, the police threatened that there would be
consequence for her family if Emini failed to appear. The IJ found that this evidence,
on its own, did not establish a reasonable possibility that she would face political
persecution if she were to return to Albania because they established nothing more
than that she was being sought for questioning.
Additionally, the IJ considered U.S. State Department country reports, which
stated that the Democratic Party in Albania often has complained credibly about
incidents of police harassment and the dismissal of some party members from their
official positions because of political reasons. The IJ reasoned that these reports
showed that Emini might expect to be questioned by authorities and may be subjected
to harassment by the police because of her continued support of the Democratic Party
if she returns to Albania. We agree with the IJ that these types of actions, questioning
and harassment, do not suffice to create a reasonable possibility of persecution.
Moreover, the IJ considered the fact that Emini’s family has continued to live in
Albania in relative comfort despite her father’s involvement with the Democratic Party
and despite the previous threats to her family in connection with Emini’s failure to
appear in response to the summonses. See Boci, 473 F.3d at 767. The IJ found that
this factor likewise weighed against a finding of a reasonable possibility of future
persecution if she were to return to Albania. We conclude that the evidence does not
compel a conclusion contrary to the one reached by the IJ.
Because Emini failed to meet her burden of proof in establishing her eligibility for
asylum, she cannot meet the more stringent requirement of a clear probability of
persecution for withholding of removal. Shymyhelskyy v. Gonzales, 477 F.3d 474, 481
(7th Cir. 2007).
III. Conclusion
For the foregoing reasons, the petition for review is DENIED.
ROVNER, Circuit Judge, DISSENTING.
I respectfully dissent. The IJ found Emini credible and found that her testimony
was supported by corroborating documents, leaving only the question of whether the
incidents she described amount to past persecution or support a well-founded fear of
future persecution. As the majority notes, to constitute past persecution the acts in
question must rise to a level above mere harassment: they must threaten death,
imprisonment, or substantial harm or suffering beyond being merely unfair, unjust,
No. 06-3669 Page 8
or unlawful. Boci v. Gonzales, 473 F.3d 762, 766 (7th Cir. 2007); Margos v. Gonzales,
443 F.3d 593, 596 (7th Cir. 2006); Dandan v. Ashcroft, 339 F.3d 567, 573-74 (7th Cir.
2003). Emini’s evidence must be specific in its descriptions of the type of harms she
suffered in order to prove that the treatment was severe enough to constitute
persecution. Dandan, 339 F.3d at 573-74.
Here, the record more than adequately supports these requirements: Emini was
imprisoned, she was credibly threatened with death, and she did suffer in a way that
surpassed unfairness and entered the realm of political subjugation. She described all
these events with sufficient clarity and specificity for the IJ to find that they happened
just as she described them. The majority is willing to admit that the record indeed
supports a determination of persecution; I believe it compels that result, requiring that
this court grant Emini’s petition, vacate the decision of the BIA, and remand for a new
hearing in which Emini would be properly afforded a presumption of a well-founded
fear of future persecution. See Boci, 473 F.3d at 766; Bejko v. Gonzales, 468 F.3d 482,
485 (7th Cir. 2006).
The pattern of harms suffered by Emini is key to understanding the seriousness of
the situation she faced in Albania. When one couples the undisputed facts of her
detentions and mistreatment (including several events of significant physical violence)
with (1) the steadily escalating nature of the abuse, (2) the explicit threats that she
should discontinue her political activity, and (3) the continuing official interest in her,
as evidenced by the warrants delivered to her home just before she fled, the finding of
political persecution is inescapable. The socialist Albanian authorities communicated
a clear message (stop your opposition) and backed it up with detentions and
mistreatment. The police, knowing of her organizational role among the student
members of the Democratic Party, routinely and systematically sought her out,
detained her, and abused her in an attempt to learn about upcoming party rallies and
events so that they could quell broader political expression. Through both explicit
threats of more serious reprisals and an escalating pattern of abuse, they warned her
that if she did not stop, she would suffer worse treatment than she already had. This
worsening trend was apparent in the years before she fled: in 1998 she was detained
for a half hour and pushed against a wall; in 1999 she was detained for 20 hours,
dragged by her hair, slapped in the face, and beaten and bruised by “rubber sticks;” in
2000 she was detained for three days and punched in the face, necessitating that she
miss school and receive medical attention for her injuries. This increase in severity
was accompanied by threats on her life, such as “you’ll die in jail” and “you’ll get it in
the neck,” and also threats of prolonged imprisonment and of forced prostitution that
she believed had already been carried out on her first cousin. These threats were
entirely credible in the context of her worsening abuse.
No. 06-3669 Page 9
Consequently, no reasonable person in Emini’s position could have thought that she
was free to continue participating in political opposition without risking more grave
physical injury or detention than she had already experienced. The majority itself
acknowledges this. Yet the majority in essence requires that she wait until she was
even more severely beaten or incarcerated even longer before she could claim she was
politically persecuted. A need to show more severe treatment might be plausible if the
mistreatment were occurring at random and with no explicit message that it would
worsen if she continued her political activity. But when the handwriting was so clearly
on the wall, Emini was not obligated to ignore it.
The socialist authorities ultimately achieved exactly what they sought: the
suppression of Emini’s political expression. Initially when she was imprisoned
multiple times and beaten, she still continued in her opposition. The record shows that
for years Emini was willing to persevere even through increasing physical harm,
accepting that her harms were collateral for her cause. But finally she became certain
that the harm resulting from her continued expression would be more than she could
bear, and she fled Albania. The authorities succeeded by pushing her to the limit of
what she was willing to risk: her life. And yet the majority seems to find that
inadequate for asylum. While it is inescapable that we must sometimes engage in a
grotesque calculation of a petitioner’s harm to determine if it is severe enough to
warrant asylum, see Dandan, 339 F.3d at 573-74, I fear that in this case the majority
has set the bar too high. It engages in an overly-demanding search for specificity and
severity, a formalism that undermines the purpose and function of our asylum law in
cases in which the causal connection between political expression and inflicted harm
is so high, and the clarity of increased future severity is apparent from context. If
Emini’s case does not warrant asylum, then it becomes very hard to identify just what
does. The danger of this uncertainty extends beyond the fate of a single petitioner; it
tends toward incongruous results that can give the appearance of asylum as judicial
fiat rather than the promise of our government to the oppressed.
Because the record compels the conclusion that Emini’s experiences amount to past
persecution, she is therefore entitled to a presumption of a well-founded fear of future
persecution should she be returned to Albania. I would grant her petition for review,
vacate the decision of the BIA, and remand for a new hearing in which she would
receive the benefit of that rebuttable presumption.