Preka v. Ashcroft

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 04a0053n.06
Filed: October 28, 2004
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UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MIMOZA PREKA, )
)
Petitioner-Appellant, )
)
v. ) ON APPEAL FROM THE BOARD
) OF IMMIGRATION APPEALS
JOHN ASHCROFT, United States )
Attorney General, )
)
Respondent-Appellee. )
Before: KENNEDY, DAUGHTREY, and COOK, Circuit Judges.
PER CURIAM. The petitioner, Mimoza Preka, is an Albanian citizen who entered
the United States without inspection in 1997 and who now concedes removability. Before
this court, she contends that she possesses a well-founded fear of persecution if forced to
return to her homeland, and she seeks reversal of a summary disposition by the Board of
Immigration Appeals denying her applications for asylum and withholding of removal.1 The
Board upheld a ruling by the immigration judge, who likewise denied asylum, finding an
absence of “complete and absolute credibility” in regard to the petitioner’s testimony about
1
Before the immigration judge and Board of Immigration Appeals, Preka also sought both relief under
the United Nations Convention Against Torture and voluntary departure from the United States. She no longer
contests the adverse decisions rendered against her in those regards; consequently, those claims are not
before us on appeal. See, e.g., United States v. Hough, 276 F.3d 884, 891 (6th Cir. 2002) (arguments not
briefed on appeal are deemed abandoned).
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past persecution and concluding that conditions in Albania had changed dramatically in the
years since Preka left, to such an extent that future persecution could not be established
simply by a past history of harassment in her home country. Although it appears that
Mimoza Preka is the only member of her immediate family who has been denied legal entry
into the United States at this point, we are constrained by the limited nature of our review
and must affirm the decision of the Board of Immigration Appeals, which in turn upheld the
ruling by the immigration judge.
That standard of review requires us to sustain a decision of the Board of Immigration
Appeals denying asylum and withholding of removal if the determination is “supported by
reasonable, substantial, and probative evidence on the record considered as a whole.” INS
v. Elias-Zacarias, 502 U.S. 478, 481 (1992). See also 8 U.S.C. 1252(b)(4)(B)
(“administrative findings of fact are conclusive unless any reasonable adjudication would
be compelled to conclude to the contrary”). As we have recognized, “Under this deferential
standard, we may not reverse the Board’s determination simply because we would have
decided the matter differently.” Koliada v. INS, 259 F.3d 482, 486 (6th Cir. 2001);
Mikhailevitch v. INS, 146 F.3d 384, 388 (6th Cir. 1998). Rather, to overturn a Board ruling,
“we must find that the evidence not only supports [a contrary] conclusion, but compels it.”
Elias-Zacarias, 502 U.S. at 481 n.1 (emphasis in original).
Pursuant to the provisions of 8 U.S.C. § 1158(b)(1), the attorney general may grant
asylum to an individual if that person is a “refugee,” defined by statute to be “any person
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who is outside any country of such person’s nationality . . . and who is unable or unwilling
to return to . . . that country because of persecution or a well-founded fear of persecution
on account of race, religion, nationality, membership in a particular social group, or political
opinion.” 8 U.S.C. § 1101(a)(42)(A) and (B). Thus, resolution of any request for asylum
involves “a two-step inquiry: first, whether the petitioner is a ‘refugee’ within the meaning
of the statute, and second, whether the petitioner merits a favorable exercise of discretion
by the Attorney General.” Perkovic v. INS, 33 F.3d 615, 620 (6th Cir. 1994).
Preka offered testimony in this matter that she, her father, and her younger sister,
Valbona, were involved in political activities in Albania after the fall of that country’s ruling
Communist Party in 1990. According to her account, in the early days of transition to a less
totalitarian regime, the family members aligned themselves with the Democratic Party,
participated in party demonstrations, and, as a result, were warned by police officials to
cease their political activities. Once the Democratic Party won the national elections in
Albania in 1992, however, the petitioner and her family were “happy with the changes” they
helped bring to the country, although Mimoza’s observation of the increasing influence of
former Communists in the Democratic Party caused that euphoria to be short-lived.
According to the petitioner, she, her father, and her sister eventually became
members of the Balli Kombetar party, or the National Front. The break from the
Democratic Party, however, brought additional troubles. Mimoza indicated that she and
Valbona were asked by a Democratic Party member to spy on their father’s political
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activities and said that they were later approached by three men who warned them not to
write a contemplated article about the Democratic Party’s association with bands of
criminals terrorizing the country. The petitioner also testified that the individual who did
finally write the article was arrested and imprisoned by the Democratic Party for expression
of his viewpoint.
In May of 1996, Preka’s father, mother, and youngest sister won a visa lottery in the
country and came to the United States, leaving only Mimoza and Valbona in Albania. The
petitioner described how, approximately one year later, while she was away from the home
she shared with her sister, four armed men forced their way into the house, fired guns into
the ceiling, accused the family of being spies and anarchists, and beat Valbona before one
of the men brutally raped her. She said that because of their fear and the cultural shame
felt by rape victims, they did not seek medical treatment for her sister or report the incident
to the authorities. Instead, the petitioner said, she contacted a cousin in Tirana who
purchased two counterfeit passports for both sisters, allowing them to flee the country and
come to the United States to join the rest of their family. Valbona has since been granted
asylum by a different immigration judge outside this circuit.
The petitioner now asserts that this testimony establishes that she has suffered
persecution in the past for her political beliefs and, in addition, that she has a well-founded
fear of future persecution should she return to Albania. Although relevant statutes and
regulations do not offer a workable definition of the concept of “persecution,” we have held
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that the term encompasses “more than a few isolated incidents of verbal harassment or
intimidation, unaccompanied by any physical punishment, infliction of harm, or significant
deprivation of liberty.” Mikhailevitch, 146 F.3d at 390.
Possibly recognizing that warnings to curtail support of the Democratic Party and a
later, single threat not to proceed with an article critical of the party do not alone rise above
the level of “verbal harassment or intimidation,” the petitioner asserts in her asylum
application that she, her father, and her sister “were arrested, detained, interrogated, [and
her] sister was raped . . . between 1990-1997.” However, neither the testimony of Mimoza
and Valbona Preka at the asylum hearing nor the affidavits submitted by the sisters support
the claim that the women were ever arrested, detained, or interrogated by officials in
Albania during the relevant time period. Partly for that reason, the immigration judge
concluded that the petitioner was not a credible witness in these proceedings.
But even if Mimoza Preka were considered completely credible, we could not hold
that the immigration judge erred in denying the asylum request. Although the rape of
Mimoza’s sister could constitute a component of a pattern of violence against family
members that can, under some circumstances, establish persecution, see Ouda v. INS,
324 F.3d 445, 454 (6th Cir. 2003), the testimony and evidence before the immigration judge
established that the rape occurred at a time when Albania was in a state of anarchy and
without a police force. As such, the violent act committed against Valbona Preka cannot
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be considered a politically-motivated attack condoned by a non-existent national
government.
Moreover, according to documents produced by the United States State
Department, immediately after the petitioner’s flight from Albania in 1997, the Socialist
Party came to power in that country. Although the State Department report notes that the
Socialists have subsequently been accused of harassing members of the Democratic Party
that Mimoza Preka fears, and even of killing one Democratic Party member, neither the
petitioner nor the State Department has identified any evidence that the Albanian
government is engaging in systematic harassment or persecution of any Balli Kombetar
supporters. Given the change in the political conditions in Albania, the immigration judge
did not err in concluding that Mimoza Preka cannot establish a well-founded fear of future
persecution in her homeland. The petitioner, therefore, is not eligible for a grant of asylum
under applicable law.
That law does provide that an asylum “applicant who satifies his or her burden of
establishing past persecution is presumed to have a well-founded fear of persecution.”
Mikhailevitch, 146 F.3d at 389. The presumption may be rebutted, however, “by
establishing by a preponderance of the evidence that since the persecution occurred,
conditions in the applicant’s country have changed to such an extent that the applicant no
longer has a well-founded fear of being persecuted if he [or she] were to return.” Id.
(internal quotation marks and citation omitted). Thus, because immigration officials in this
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case were able to prove that the petitioner would no longer be subject to persecution in her
homeland due to her political beliefs, proof that Preka had suffered past persecution by the
government would not necessarily compel a grant of asylum in this case.
A plea for withholding of removal of an alien imposes an even more stringent
standard of proof upon the petitioner than does a request for asylum. See Mikhailevitch,
146 F.3d at 391; INS v. Cardoza-Fonseca, 480 U.S. 421, 431-32 (1987). Pursuant to the
provisions of 8 U.S.C. § 1231(b)(3)(A), “the Attorney General may not remove an alien to
a country if the Attorney General decides that the alien’s life or freedom would be
threatened in that country because of the alien’s race, religion, nationality, membership in
a particular social group, or political opinion.” Because the evidence in this case does not
compel a conclusion that the petitioner possesses a well-founded fear of future persecution
in Albania, “it therefore follows that [s]he cannot satisfy the more stringent standard for
withholding of [removal].” Mikhailevitch, 146 F.3d at 391.
For the reasons set out above, we AFFIRM the denial of the petitioner’s request for
asylum and withholding of removal.
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