Haxhiu, Shkelqim v. Mukasey, Michael B.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1097
SHKELQIM HAXHIU,
Petitioner,
v.
MICHAEL B. MUKASEY, Attorney General
of the United States,
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A97-638-589
____________
SUBMITTED JANUARY 30, 2008Œ—DECIDED MARCH 19, 2008
____________
Before FLAUM, MANION, and EVANS, Circuit Judges.
FLAUM, Circuit Judge. Shkelqim Haxhiu, a native and
citizen of Albania, applied for asylum, withholding of
removal, and relief under the Convention against Torture
(CAT), alleging that he had been persecuted on account
Œ
On January 29, 2008, we granted the petitioner’s motion to
waive oral argument. Therefore, the petition for review is
submitted on the briefs and the record. See Fed. R. App. P. 34(f).
2 No. 07-1097
of his political opposition to government corruption.1
The Immigration Judge denied the requested relief, and
the Board of Immigration Appeals summarily affirmed
the IJ’s decision. Because substantial evidence does not
support the IJ’s findings that Haxhiu’s persecution was not
on account of his political opinion and that state actors
were not responsible for the harm alleged, we grant his
petition for review, vacate the order of removal, and
remand for further proceedings.
Background
The facts of this case are undisputed because the IJ
credited Haxhiu’s testimony in full. See Hernandez-Baena
v. Gonzales, 417 F.3d 720, 721 (7th Cir. 2005). Haxhiu is a
35-year veteran of the Albanian Army, where he at-
tained the rank of colonel. In February 1999 Haxhiu was
assigned to supervise military recruiting operations in
Tirana, Albania, a position that included among its
duties the eradication of widespread corruption. Haxhiu
notes that chief among his accomplishments was a re-
duction in the theft of payments to excuse military service.
According to Haxhiu, Albanian citizens can, by law, buy
their way out of compulsory military service at a cost of
approximately $2,500 to $3,000, and these payments,
often made in cash, were finding their way in to the
pockets of individual military and government officials.
Haxhiu implemented an accounting system that ensured
1
His wife, Dudije Haxhiu, seeks relief derivatively through
Haxhiu, although she is not a party to this appeal. See 8 U.S.C.
§ 1158(b)(3)(A); Bace v. Ashcroft, 352 F.3d 1133, 1137 (7th Cir.
2004).
No. 07-1097 3
that each payment would be routed to a bank, thus pre-
venting any further abuse, although angering the beneficia-
ries of the old system.
In another episode in his fight against corruption, Haxhiu
protested the sale of a military building to private pur-
chasers in 2000. Haxhiu testified that a group of corrupt
Ministry of Defense officials conspired to reduce the sale
price of the building from its true market value of approxi-
mately $1,000,000 to a mere $20,000 in exchange for remu-
neration in a later sale. These same individuals solicited
Haxhiu’s cooperation in their scheme—offering him an
apartment as a bribe—but Haxhiu refused and exposed
their efforts in a letter to the Defense Minister at that time.
The building was never sold despite repeated attempts;
whether Haxhiu’s efforts made the difference is unclear,
but his resistance did provoke immediate threats of
termination from a director in the Ministry of Defense.
Haxhiu also received phone calls from unknown individu-
als who threatened to kidnap his children unless he kept
quiet about the sale of the building. These threats intensi-
fied after Ismail Lleshi, a particularly corrupt individual
according to Haxhiu, became the Minister of Defense in
2000 and continued to push for the sale.2
Ultimately, Haxhiu was fired because of his efforts to
resist government corruption. Although Haxhiu’s job
2
Haxhiu does not claim that every threat he received during
this period came from a government actor, although some he
can attribute to specific government officials. Instead, Haxhiu
explains that the parties to the sale—corrupt officials on one
side and private interests, which he labels an “economic
mafia,” on the other—were very much intertwined and even
jointly responsible for orchestrating his treatment.
4 No. 07-1097
was admittedly to eliminate certain forms of corruption,
his new superiors under Lleshi, themselves corrupt,
were unhappy with his efforts. Upon termination in 2001,
a group of Defense Ministry officials told Haxhiu, “This
is just the beginning. We can do to you whatever we
want because you are not in uniform now. You will see
our power.”
Unsurprisingly, Haxhiu’s situation deteriorated fur-
ther after he was fired. First, he challenged his termina-
tion in a letter to Albania’s Supreme Court, although he
did not file a formal complaint or enlist the help of an
attorney, which perhaps explains why he did not receive a
response. “[A]ggravated by this politician [Lleshi] and by
this kind of politics,” Haxhiu next approached a newspaper
editor and a radio journalist with an offer to assist them in
exposing corruption. But before anyone could publish or
broadcast his accounts, Haxhiu withdrew his offer because
of new threats against him and his family. For example,
Haxhiu received word from Lleshi that if he talked to
journalists, Haxhiu would end up “worse than [G]eneral
Aqif Cikalleshi,” a former military official who narrowly
escaped an assassination attempt and had to flee to Italy
after speaking to journalists on television.
Haxhiu responded to these threats by reiterating that
Lleshi was a source of shame for Albanians and that
Haxhiu was determined to expose various ongoing
abuses to the press. Haxhiu reconsidered his position,
though, after the threats turned to attacks on his family:
On February 7, 2002, strangers beat his son badly and
told him, “Tell your father to shut up his mouth or we
will shut it for him for ever.” And in May 2002 a group
of men tried to kidnap Haxhiu’s daughter. Fearing for
the safety of his family, Haxhiu sent his son to England
No. 07-1097 5
and fled to the United States in August 2002, where his
wife and daughter joined him one month later.
After three months in the United States, Haxhiu re-
turned to Albania alone to see “if things had changed.”
But shortly after his return, Haxhiu was attacked while
driving home with a friend from a nearby restaurant. Two
gunmen cut off Haxhiu’s car, got out of their vehicle, and
began shooting at Haxhiu, shattering the windshield.
Haxhiu and his friend were not hurt, though, and the
gunmen ran away after firing all of their bullets. Still, the
experience confirmed Haxhiu’s fears about his homeland,
and he decided to settle permanently in the United States
in January 2003. Six months after re-entering the United
States, Haxhiu sought asylum, withholding of removal,
and CAT protection.
Following an immigration hearing in Chicago, Illinois,
the IJ denied Haxhiu’s applications. After determining
that Haxhiu’s testimony was credible and consistent
with the record, the IJ turned to the more difficult question
of whether the evidence demonstrated that Haxhiu had
suffered persecution on account of a protected ground. The
IJ began by noting that political agitation against state
corruption can support an asylum claim, but to qualify
Haxhiu needed to show that he took “active steps to fight
[systemic] corruption in Albania” outside of his official
duties. The IJ observed that Haxhiu’s activities lacked a
public aspect; his political activities were confined to the
performance of his military function—his job, after all,
was to stamp out corruption in the local office. Further-
more, the IJ determined that Haxhiu had not shown that
the corruption of which he complained encompassed the
government at large, as opposed to a few rogue individuals
whose exposure could not be considered an expression
6 No. 07-1097
of political opinion. For these reasons, the IJ concluded
that the harm suffered by Haxhiu was not on account of
his political opinion. Even if there was a connection
between his harm and his political opinion, the IJ contin-
ued, Haxhiu could not demonstrate that the Albanian
government was responsible for his treatment, either
directly or by failing to protect him.
On December 15, 2006, the BIA adopted and affirmed,
without opinion, the IJ’s decision, which became the
agency’s final determination.
Discussion
Where the BIA summarily affirms the IJ’s decision, as
is the case here, this court will review the IJ’s factual
findings and analysis for substantial evidence. Boci v.
Gonzales, 473 F.3d 762, 765-66 (7th Cir. 2007); Mousa v. INS,
223 F.3d 425, 428 (7th Cir. 2000). This deferential test
requires us to uphold the BIA’s denial of relief if it 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) (quoting 8 U.S.C.
§ 1105a(a)(4)). Reversal is appropriate only if the record
compels a contrary result. Id. at 481 n.1.
The Attorney General has discretionary authority to
grant asylum to aliens who meet the refugee require-
ments of 8 U.S.C. § 1101(a)(42)(A). 8 U.S.C. § 1158(b)(1)(A).
That statute defines a refugee as one who is unable or
unwilling to return to his country of origin “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). One way an applicant may demonstrate
eligibility for asylum is by proving that he suffered past
No. 07-1097 7
persecution, which entitles him to a rebuttable presump-
tion of a well-founded fear of future persecution. Tesfu v.
Ashcroft, 322 F.3d 477, 481 (7th Cir. 2003). Haxhiu chose
this method, so our analysis begins with an examination
of his proof of past persecution.
The Attorney General does not dispute that Haxhiu has
suffered persecution; rather, the first question in this
case is whether Haxhiu suffered persecution on account of
his political opinion. And since at least some of the harm
alleged by Haxhiu was due to his fight against corruption,
the main inquiry is whether Haxhiu’s anticorruption
activities constituted an expression of a political opinion.
This court has defined a political opinion as “one that is
expressed through political activities or through some
sort of speech in the political arena.” Li v. Gonzales, 416
F.3d 681, 685 (7th Cir. 2005). Although not every victim
of corruption is eligible for political asylum, those who
engage in “political agitation against state corruption,”
such as whistleblowers, can be persecuted on account of
a political opinion. Marquez v. INS, 105 F.3d 374, 381 (7th
Cir. 1997) (offering as examples of sufficient agitation
founding an anticorruption political party; actively par-
ticipating in an anticorruption party’s activities; or speak-
ing out repeatedly “as a public gadfly”); see Musabelliu v.
Gonzales, 442 F.3d 991, 996 (7th Cir. 2006); Marku v. Ashcroft,
380 F.3d 982, 986 (6th Cir. 2004) (collecting cases that
hold that opposition to government corruption can be a
political opinion). To receive asylum protection on ac-
count of a political opinion, though, a whistleblower must
have sought a political result by going outside of the scope
of his official duties and the chain of command. See
Musabelliu, 442 F.3d at 996 (explaining that a whistleblower
must seek a political result by exposing corruption pub-
8 No. 07-1097
licly); Pavlyk v. Gonzales, 469 F.3d 1082, 1089 (7th Cir. 2006)
(holding that conduct within the scope of one’s govern-
mental duties—such as a prosecutor expressing his
view within the chain of command and pursuing an
investigation—cannot alone constitute political expression).
But see Pavlyk, 469 F.3d at 1091-93 (Cudahy, J., concurring)
(noting that public political expression merely eases the
burden of the applicant in showing that her persecution
was on account of her political opinion; “[b]ut in some
situations, an applicant’s conduct of her public duties
may carry an obvious political implication that invites
persecution”); Bace, 352 F.3d at 1137-38 (holding that
persecution of election commissioner for refusal to certify
an election was on account of a political opinion).
Haxhiu’s military duties are no obstacle to his asylum
claim because his anticorruption activities persisted
beyond his employment with the Albanian Army. See
Musabelliu, 442 F.3d at 996; Pavlyk, 469 F.3d at 1089. He
approached the press after his termination—and suffered
persecution for doing so: the threats to his family, realized
at least with respect to his son (the cause of his daughter’s
harm is unknown), came about because of his attempt to
engage in “classic political activit[y].” See Pavlyk, 469 F.3d
at 1089; see also Musabelliu, 442 F.3d at 995 (providing as an
example of political speech that may attract persecution
“someone who writes an op-ed piece or otherwise urges
the people to rid themselves of corrupt officials”). Indeed,
this round of threats specifically cited Haxhiu’s public
speech as the impetus for harm to him and his family.
Thus, it was premature for the IJ to conclude his analysis
at this stage. And it is not decisive that the corruption
of which Haxhiu complained did not pervade every level
of the Albanian government; a political opinion in op-
No. 07-1097 9
position to corruption carries no such requirement. See
generally Pavlyk, 469 F.3d at 1089; Musabelliu, 442 F.3d
at 995-96; Marquez, 105 F.3d at 381.
However, Haxhiu still must establish that the Albanian
government was either complicit in his persecution or
unwilling or unable to protect him from private parties
who persecuted him. See Garcia v. Gonzales, 500 F.3d 615,
618 (7th Cir. 2007). As a preliminary matter, the Attorney
General argues that Haxhiu has waived any argument
on this point by failing to raise it in his brief before this
court.3 Federal Rule of Appellate Procedure 28 requires
“an argument consisting of more than a generalized
assertion of error, with citations to supporting authority.”
Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001); see
FED R. APP. P. 28(a)(9)(A). This court must be able to
“discern cogent arguments” in the brief, and the party must
identify an “articulable basis for disturbing the . . . judg-
ment.” Id.; see also Weinstein v. Schwartz, 422 F.3d 476, 477
n.1 (7th Cir. 2005) (finding waiver where appellant
treated argument in cursory fashion and failed to cite
legal authority in both his briefs).
Petitioner’s treatment of the government-responsibility
issue is quite thin, and the decision not to file a reply brief
on this point is puzzling, yet his opening brief contains a
semblance of an argument that is supported by legal
authority. Haxhiu emphasizes that the IJ found him
credible; reiterates his testimony that the “economic mafia”
and the government were at that time “married” and thus
3
We note that Haxhiu raised this claim before the BIA and
therefore exhausted his administrative remedies. See 8
U.S.C. § 1252(d)(1); Margos v. Gonzales, 443 F.3d 593, 599 (7th
Cir. 2006).
10 No. 07-1097
indistinguishable; and concludes by comparing his case
to another in which the alleged harm was perpetrated
by government officials. Moreover, the two issues in
this case—whether Haxhiu was targeted for combating
government corruption and whether the government bears
responsibility—overlap significantly, a point that Haxhiu
makes in his brief. If the IJ believed Haxhiu’s testimony
that the government and the “economic mafia” were
essentially one entity, it would follow that the government
perpetrated, or at least permitted, the harm Haxhiu
suffered. Haxhiu also refers this court to a Ninth Circuit
opinion in which that court determined that opposition
to government corruption is a political opinion for
which an individual can be persecuted so long as the
opposition is directed towards—and the harm flows from—
a governing institution as opposed to aberrant individuals.
See Mamouzian v. Ashcroft, 390 F.3d 1129, 1135 (9th Cir.
2004). Because we can identify an articulable basis for
error in his brief, see Anderson, 241 F.3d at 545, we con-
clude that Haxhiu has not waived the argument that the
Albanian government bore responsibility for his treatment.
Even if waiver were found in this case, such a conclu-
sion would work a manifest injustice given Haxhiu’s
claim that he may be assassinated upon return to Albania,
a claim that the IJ found credible. We may review issues
not adequately briefed in this court if failure to do
so would result in manifest injustice. See McCarthy v. SEC,
406 F.3d 179, 186 (2d Cir. 2005); Mamouzian, 390 F.3d
at 1136 & n.4; Natural Res. Def. Council, Inc. v. U.S. EPA, 25
F.3d 1063, 1071 n.4 (D.C. Cir. 1994); Grossart v. Dinaso, 758
F.2d 1221, 1226 (7th Cir. 1985) (permitting an exception to
waiver if injustice would result); see also Commonwealth
Edison Co. v. U.S. Nuclear Regulatory Comm’n, 830 F.2d 610,
No. 07-1097 11
621 n.7 (7th Cir. 1987) (acknowledging the possibility of
a manifest injustice exception). And the possibility of
manifest injustice looms where deportation, already a
“harsh measure,” is “replete with danger [because] the
alien makes a claim that he or she will be subject to death
or persecution if forced to return to his or her home
country.” INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987);
see also Mamouzian, 390 F.3d at 1136 & n.4 (reviewing brief
of alien seeking asylum with “lenity” due to credible claims
of harm if alien was returned to home country). Given the
severity of the harm alleged here, and the IJ’s positive
credibility determination, this appears to be a case where
a manifest injustice exception to waiver would apply.
The waiver argument to one side, we consider whether
the IJ erred in finding that Haxhiu did not demonstrate
government complicity in his persecution. The IJ deter-
mined that Haxhiu attributed his treatment solely to the
private “economic mafia” that stood to gain from the
sale of his building. Accordingly, the IJ looked to whether
Haxhiu ever filed a complaint with the police or gov-
ernment about the threats he received and the attacks
his family suffered. Finding none—which is problematic
because the record contains extensive documentation of
a police investigation into the attempted kidnapping of
Haxhiu’s daughter—the IJ concluded that Haxhiu
had failed to establish that the government was either
unwilling or unable to protect him. But this analysis
belies Haxhiu’s testimony and the record, which provides
ample evidence that agents of the Ministry of Defense
persecuted him in tandem with private actors. Thus,
Haxhiu was under no obligation to seek government
protection from private actors, although he did report his
daughter’s attack. Because Haxhiu demonstrated gov-
12 No. 07-1097
ernment complicity in his persecution, the IJ erred in
finding to the contrary. See Garcia, 500 F.3d at 618.
Finally, Haxhiu has waived judicial review on his
remaining claims for withholding of removal and protec-
tion under the CAT by failing to address them in his brief
before this court (other than to rehearse the legal stan-
dards for both) or in his brief before the BIA. See Huang
v. Gonzales, 403 F.3d 945, 951 (7th Cir. 2005).
Conclusion
For the foregoing reasons, we believe that substantial
evidence does not support the IJ’s decision. The record
compels the conclusion that Haxhiu suffered past persecu-
tion and thus was entitled to a rebuttable presumption
of a well-founded fear of future persecution. Accordingly,
we GRANT the petition for review, VACATE the order of
removal, and REMAND for further proceedings consistent
with this opinion.
USCA-02-C-0072—3-19-08