Mehmet Bardhyl Ruzi v. John Ashcroft , 441 F.3d 611 ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-3146
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Mehmet Bardhyl Ruzi, *
*
Petitioner, *
*
v. *
*
Alberto R. Gonzales,1 Attorney *
General of the United States *
of America, *
*
Respondent. *
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Petitions for Review of
No. 03-3147 Orders of the Board of
______________ Immigration Appeals.
Zhaneta Ruzi; Mirta Ruzi, *
*
Petitioners, *
*
v. *
*
Alberto R. Gonzales, Attorney *
General of the United States *
of America, *
*
Respondent. *
1
Alberto Gonzales has been appointed to serve as Attorney General of the
United States, and is substituted as respondent pursuant to Federal Rule of Appellate
Procedure 43(c)(2).
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Submitted: December 15, 2005
Filed: March 24, 2006
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Before MELLOY, COLLOTON, and BENTON, Circuit Judges.
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BENTON, Circuit Judge.
Mehmet Bardhyl Ruzi, his wife, Zhaneta Ruzi, and his daughter, Mirta Ruzi
petition for review of two final orders of the Board of Immigration Appeals ("BIA")
denying their applications for asylum and withholding of removal. See 8 U.S.C. §§
1158, 1231(b)(3). Having jurisdiction under 8 U.S.C. § 1252, this court affirms.
I.
A. Procedural Background
Mehmet Ruzi, a native and citizen of Albania, entered the United States with
a 90-day visitor visa authorizing him to remain in the country until April 22, 1996.
He overstayed the visa and lived here without authorization, eventually applying for
political asylum and withholding of removal in June 1999. An Immigration Judge
placed Mehmet in removal proceedings, charging him with overstaying his status.
Zhaneta and Mirta entered the United States from Albania on January 5, 1999,
with fraudulent passports. They immediately requested political asylum. Mehmet is
a derivative asylum applicant on Zhaneta's application. After passing credible- fear
screenings, Zhaneta and Mirta were charged with entering the United States without
valid entry documents and by misrepresentation. They admitted these charges before
the Immigration Judge, but renewed their requests for asylum, withholding of
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removal, and relief under the Convention Against Torture. Mehmet's claims were
later joined with Zhaneta's and Mirta's before the Immigration Judge, who determined
that all three petitioners were ineligible for relief.
B. Factual Background
Mehmet Ruzi alleges that, before leaving Albania in 1995, he was persecuted
by two different political groups – the Socialist Party and the Democratic Party. He
testified that, in 1991, the Socialists began detaining and beating him after he became
an active member of the newly-formed Democratic Party. In January, he was arrested,
detained, and beaten for two days by Socialist police officers following a pro-
democracy demonstration in Berat. On March 31, he was again beaten by Socialist
police who used clubs and rifle butts to break up a 10-day hunger strike staged by
Democrats following election of a Socialist Prime Minister. Finally, in January 1992,
Mehmet was detained by Socialist police while campaigning for the special election
of a Prime Minister. He testified that officers stopped his vehicle, threatened to kill
him for "going beyond the limits" with the Democratic Party, and later beat him with
clubs and machine gun butts until he was unconscious. Shortly thereafter, he became
chairman of the local chapter of the Democratic Party in Berat.
In November 1994, at a referendum on a new constitution in Albania, Mehmet
was in charge of a local polling unit in Berat. Several days before the November 6
referendum, Democrats arrived at his polling place and offered him money to buy
votes. Mehmet refused the bribe, saying that he was confident the people in his area
would support the referendum. On November 6, two armed men who said they
represented Democratic Party "bosses" arrived at Mehmet's polling place and told him
to switch voting boxes to ensure adoption of the new constitution. Mehmet refused
to cooperate. The men knocked him unconscious, causing head injuries, facial and
back bruises, and a fractured right leg. He was hospitalized for nine days until a
friend advised him that he was targeted to be killed by Democratic leaders.
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After learning that his name was on the Democratic Party's "extermination list,"
Mehmet fled to Greece with Zhaneta and Mirta, where they lived for approximately
11 months. Mehmet traveled to Albania to obtain a visitor's visa to the United States,
but immediately returned to Greece to await his departure to the United States. In
October 1995, he and his family waited in hiding at his mother-in-law's house in
Albania, until he left for the United States on October 23.
Zhaneta and Mirta continued to live with her mother in a remote village in
Albania. Zhaneta testified that on the night of January 24, 1996, three men broke into
the home and demanded to know Mehmet's location. When she did not provide the
information, the intruders beat her, causing a miscarriage of her unborn child.
Zhaneta and Mirta then moved to her aunt's home in a different Albanian village.
Zhaneta testified she was not harmed during the three years she lived there, but that
two unknown men stared at Mirta as she played in the yard in late 1998. This incident
caused her to believe that Mirta would be kidnapped and sold into the Albanian sex
trade (according to her application), or (as she testified later) taken in retribution for
Mehmet's disappearance. Additionally, both Zhaneta and Mehmet testified that
Mehmet's "political enemies" retaliated in 1994 against his family by beating his
father, and in 1997 by shooting his father in the leg and leaving a note in his father's
house saying the whole family would be annihilated. Concerned about further
retribution, Zhaneta obtained fraudulent passports for herself and Mirta and entered
the United States on January 5, 1999.
C. Agency Proceedings
Reviewing the testimony, the Immigration Judge concluded that Mehmet was
barred from political asylum because his application was untimely, as it was not filed
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within one year of his arrival in the United States.2 See 8 U.S.C. § 1158(a)(2)(B).
Because Zhaneta and Mirta were dependent asylum applicants on Mehmet's
application, their requests for political asylum were also denied. The Judge then held
that none of the three was entitled to withholding of removal or relief under the
Convention Against Torture, as they had not established a clear probability of
persecution if returned to Albania. The Judge granted Mehmet voluntary departure,
but ordered Zhaneta and Mirta immediately removed.
All three appealed to the BIA, which issued two opinions. In the first, the BIA
determined that Mehmet was not entitled to withholding of removal, because he did
not show a clear probability of persecution if removed to Albania. In the second, the
BIA concluded that the Immigration Judge erred in treating Zhaneta and Mirta as
dependent asylum applicants, as they had filed their own petitions. By a de novo
review, the BIA held that Zhaneta and Mirta were not entitled to political asylum
because they did not establish persecution on account of any statutorily-protected
ground. Similarly, the BIA determined that Zhaneta and Mirta were not entitled to
withholding of removal. All three petitioners appeal.
II.
Mehmet argues that the BIA erred as a matter of law in holding that he failed
to establish a "clear probability of persecution" by either the Democrats or Socialists
on account of his political opinions if returned to Albania. This court reviews for
abuse of discretion, and analyzes the underlying factual findings using the substantial
evidence standard. See Hasalla v. Ashcroft, 367 F.3d 799, 803 (8th Cir. 2004). The
BIA's factual determinations are upheld if "supported by reasonable, substantial, and
probative evidence on the record considered as a whole." INS v. Elias-Zacarias, 502
2
Mehmet did not challenge the denial of asylum before either the BIA or this
court.
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U.S. 478, 481 (1992). Reversal of the BIA's decision is warranted only if the evidence
is so compelling that no reasonable fact-finder could fail to find the requisite fear of
persecution. See id.; 8 U.S.C. § 1252(b)(4)(B).
Withholding of removal is available only if the petitioner can show that his or
her life or freedom would be threatened on account of race, religion, nationality,
membership in a particular social group, or political opinion. 8 U.S.C. § 1231(b)(3).
The standard for mandatory withholding of removal is stringent, a "clear probability
that he or she will face persecution in the country to which he or she will be deported."
Eta-Ndu v. Gonzales, 411 F.3d 977, 986 (8th Cir. 2005), quoting Krasnopivtsev v.
Ashcroft, 382 F.3d 832, 803 (8th Cir. 2004). Under this standard, the petitioner must
show that "more likely than not" he or she would be subjected to persecution on
account of one (or more) of the statutory grounds. See INS v. Stevic, 467 U.S. 407,
429 (1984).
Mehmet claims that his political opinions make it more likely than not that he
will suffer persecution by members of the Socialist and/or Democratic parties if
returned to Albania, as evidenced by his previous experiences. A petitioner can meet
the statutory burden of proving a clear probability of future persecution by offering
compelling evidence of past persecution. See 8 C.F.R. § 1208.16(b)(1)(i). Such
evidence creates a presumption that the petitioner's life or freedom will be threatened
if removed to the same country where persecution was previously inflicted. Id.
However, the government may rebut this presumption by establishing that there has
been a "fundamental change in circumstances such that the applicant's life would not
be threatened . . . upon removal to that country." Id. § 1208.16(b)(1)(i)(A).
The BIA first determined that, as to Socialist persecution, the conditions in
Albania had changed to such a degree that Mehmet no longer faced a clear probability
of persecution by Socialists if deported. The BIA relied on the U.S. State
Department's 2002 Country Report on Human Rights Practices in Albania, which
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reported that Albania had made progress in transitioning to a multiparty republic and
that there were no longer confirmed reports of politically-motivated harm to members
of the Democratic Party. See Hasalla, 367 F.3d at 804, citing Perinpanathan v. INS,
310 F.3d 594, 599 n.1 (8th Cir. 2002) (relying on State Department Human Rights
reports on Albania as persuasive authority); see also Gebrehiwot v. Ashcroft, 374
F.3d 723, 726 (8th Cir. 2004). The BIA also found that over a decade has passed
since Mehmet left Albania, and that he had not maintained any connections with
members of the Democratic Party – rivals of the Socialists – since 1994. See
Regalado-Garcia v. INS, 305 F.3d 784, 788 (8th Cir. 2002) (relying on passage of
time and changed country conditions in denying petitioner asylum). The BIA
concluded that Mehmet had not shown a likelihood of persecution by the Socialist
Party on account of a Democratic political opinion. This court finds that this factual
determination is supported by substantial evidence in the record.
As to persecution by the Democrats, the BIA determined that no compelling
evidence linked Mehmet's past persecution to a statutorily-protected ground. In order
to show a "clear probability of persecution" if returned to Albania, Mehment focuses
on the beatings after he refused to tamper with ballot boxes or accept a bribe during
the 1994 constitutional referendum. The BIA's analysis of this evidence was that the
Democrats' motive for persecuting Mehmet was his non-cooperation during the
referendum, not his political opinion.
While Mehmet is not required to establish the exact motive for persecution, he
must present credible evidence that the persecution was at least partly motivated by
his political opinion, or another statutorily-protected ground. See Elias-Zacarias, 502
U.S. at 483-84; Melecio-Saquil v. Ashcroft, 337 F.3d 983, 986 (8th Cir. 2003). See
also Mohamed v. Ashcroft, 396 F.3d 999, 1003-04 (8th Cir. 2005). Like the
petitioner in Elias-Zacarias, Mehmet never claimed (or sufficiently established) that
he refused to cooperate with the Democrats' referendum demands because of a
political opinion. Elias-Zacarias, 502 U.S. at 483; see also Melecio-Saquil, 337 F.3d
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at 986. Implying he was a Democrat at that time, he testified that he told the attackers
that the people in his area would support the referendum without this criminal activity.
True, the BIA failed to consider that Mehmet's non-cooperation could hurt the
Democrats at the polls, and that they might later seek retribution. However, this court
finds insufficient record proof that Democrats persecuted Mehmet on account of an
actual or implied political opinion. See Elias-Zacarias, 502 U.S. at 482-83; Hasalla,
367 F.3d at 804. This conclusion is bolstered by the vague and speculative testimony
of Mehmet and Zhaneta, neither of whom could identify any individual in the
Democratic Party who harmed a Ruzi family member at any other time. See Hasalla,
367 F.3d at 804. Importantly, there is no other evidence in the record to support
Mehmet's claim that he fears persecution on account of a protected political opinion.
Given the speculative evidence supporting Mehmet's position, as well as the
changed country conditions in Albania during the 11 years he has been absent from
the country, this court concludes Mehmet did not sufficiently establish a "clear
probability" of persecution by Democrats if returned to Albania. Accordingly, the
BIA's denial of his petition for withholding of removal is affirmed.
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III.
Zhaneta and Mirta3 petition for review of the BIA's denial of their application
for political asylum, alleging a well-founded fear of persecution if forced to return to
Albania. This court employs the same deferential standard in reviewing denials of
asylum as in reviewing denials of withholding of removal. See Francois v. INS, 283
F.3d 926, 931 (8th Cir. 2002). This court applies the substantial evidence standard:
reversal of the BIA's decision is warranted only if the evidence is so compelling that
no reasonable fact-finder could fail to find the requisite well-founded fear of
persecution. Elias-Zacarias, 502 U.S. at 481.
The Attorney General may, in his discretion, grant asylum to any refugee. 8
U.S.C. § 1158(b). A "refugee" is a person who is unwilling or unable to return to his
or her home country "because of persecution or a well-founded fear of future
persecution on account of race, religion, nationality, membership in a particular social
group, or political opinion. . . ." 8 U.S.C. § 1101(a)(42)(A). To show a well-founded
3
For the first time on appeal, Mirta argues that she – then a six-year-old – could
not have formed the requisite intent to commit fraud or legal misrepresentation by
entering the United States with a fabricated passport in 1999. She requests that only
as to her, this court vacate the BIA's finding of removability based on fraud. Mirta's
appointed counsel, however, admitted the fraud charge on her behalf before the
Immigration Judge, and she did not contest this admission before the BIA. While
Mirta now argues that this court has the inherent authority to correct this injustice, she
did not exhaust her administrative remedies before either the Immigration Judge or the
BIA. She cannot bypass the administrative process, as this court is without inherent
authority to correct an apparent administrative oversight. See Arellano-Garcia v.
Gonzales, 429 F.3d 1183, 1187 (8th Cir. 2005) (requiring exhaustion of remedies
before the BIA); Etchu-Njang v. Gonzales, 403 F.3d 577, 582-83 (8th Cir. 2005)
(same). Rather, her remedies (if any) lie with the agency, by seeking to reopen the
proceedings to expunge the fraud charge from her record. See, e.g., 8 C.F.R. §§
1003.2(a), 1003.2(c)(3)(iii) (discretionary reconsideration or reopening of the BIA
proceedings upon motion of the parties).
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fear of future persecution, the petitioner need not establish with mathematical
certainty that he or she will face persecution if returned. INS v. Cardoza-Fonseca,
480 U.S. 421, 440 (1987). Rather, the petitioner's fear must be both subjectively and
objectively reasonable, such that a reasonable person in the petitioner's position would
fear persecution on account of a statutorily-protected ground if returned home.
Regalado-Garcia, 305 F.3d at 788.
Like the standard for withholding of removal, there is a rebuttable presumption
of future persecution, once the petitioner proves past persecution. See Eta-Ndu, 411
F.3d at 983; 8 C.F.R. § 1208.13(b)(1)(i). In this case, Zhaneta argues that she and
Mirta suffered past persecution at the hands of Democratic Party members in Albania
after her husband left for the United States in 1995. She testified about both a 1996
beating that caused a miscarriage, and a 1998 incident where two strange men stared
at Mirta as she played. While Zhaneta testified that she feared the men would kidnap
Mirta in retribution for her husband's refusal to tamper with the 1994 constitutional
referendum, her asylum application stated that she feared Mirta would be kidnapped
for sale in the Albanian sex trade.
The BIA reasonably concluded that, although the 1996 beating and subsequent
miscarriage were reprehensible, Zhaneta failed to establish that she was persecuted on
account of a protected ground. Throughout the proceedings, Zhaneta never identified
who entered her home and beat her. See Menendez-Donis v. Ashcroft, 360 F.3d 915,
917-19 (8th Cir. 2004). Thus, the BIA concluded that she had no foundation for her
belief that the unidentified men were Democrats seeking retribution against her
husband for his political activities. Moreover, Zhaneta lived peacefully in Albania for
three years after this incident before departing for the United States with her daughter.
Although Zhaneta testified that her fears were renewed in late 1998 when strange men
stared at Mirta, the BIA found that she could not identify these individuals, and thus,
had no basis to believe that they would kidnap her in retribution for Mehmet's
previous political activities. The BIA concluded that Zhaneta had not met her burden
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of establishing a well-founded fear of future persecution if returned to Albania. As
substantial evidence supports this conclusion, this court affirms the agency decision.
IV.
Finally, Zhaneta and Mirta maintain that the BIA erred in denying their
applications for withholding of removal, as they established the requisite "clear
probability" of persecution if deported to Albania. The "clear probability" standard
is more onerous than the "well-founded fear" standard required for a grant of asylum.
See Turay v. Ashcroft, 405 F.3d 663, 667 (8th Cir. 2005). As substantial evidence
supports the denial of Zhaneta's and Mirta's request for asylum, substantial evidence
likewise supports the BIA's determination that they did not show a "clear probability"
of persecution in Albania if forced to return.
V.
The decision of the BIA is affirmed.
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