Leonard Sholla v. Alberto Gonzales

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 06-2925
___________
Leonard Sholla, *
*
Petitioner, *
* Petition for Review of an Order of the
v. * Board of Immigration Appeals.
*
Alberto Gonzales, Attorney General *
of the United States of America, *
*
Respondent. *
___________
Submitted: March 15, 2007
Filed: July 5, 2007
___________
Before MELLOY, SMITH, and BENTON, Circuit Judges.
___________
MELLOY, Circuit Judge.
Leonard Sholla, a native and citizen of Albania, entered the United States with
a valid tourist visa. Shortly after the visa expired, Sholla submitted an application for
asylum, withholding of removal, and relief under the Convention Against Torture in
which he alleged that he was the victim of political persecution in his native country.
An immigration judge (“IJ”) denied these applications, and the Board of Immigration
Appeals (“the Board”) adopted and affirmed the IJ’s decision. Sholla petitions this
court for review of the denial of his applications for relief, and we grant the petition.
I. BACKGROUND
Sholla arrived in the United States from Albania on December 2, 2000, with a
valid tourist visa. The visa expired on June 1, 2001. On June 20, 2001, Sholla applied
for asylum, withholding of removal, and relief under the Convention Against Torture.
On October 31, 2002, immigration authorities served him with a notice to appear
charging that he was a removable alien under 8 U.S.C. § 1227(a)(1)(B). Sholla
appeared before the immigration court in Chicago and admitted removability, and an
IJ set a date to hear the merits of his applications for relief. After a venue transfer to
St. Louis, Sholla had his merits hearing via video conference before an IJ in Oakdale,
Louisiana, on September 29, 2004.
The facts presented below derive from the testimony of Sholla and his brother
Milto, the only witnesses at the hearing. Their testimony was uncontradicted by the
government and found credible by the IJ, and we therefore present it as such.
Sholla was born in Kuçovë, Albania, in 1951. He was the oldest of six brothers:
himself, Milto, Nikollaq, Jovan, Koco, and Vasillaq. During his childhood and much
of his adult life, Albania was under Communist rule. Sholla listened to Voice of
America and Radio Vatican and soon became an ardent supporter of democratic
reforms and a harsh critic of the Communist regime. He spoke to friends, family, and
“whoever would listen” about his beliefs. Someone in the Albanian government
learned of his anti-Communist advocacy. In 1980, Communist authorities arrested
Sholla and placed him, his wife Zoica, and his then-two-year-old daughter Valbona
in a hard-labor internment camp. The three were released in 1981.
Three of Leonard’s brothers—Milto, Nikollaq, and Jovan—also became active
in the anti-Communist political movement, and Jovan’s political activities led to his
arrest and internment from 1988 to 1990. The four brothers joined the Democratic
Party in Kuçovë upon its official formation in 1991. Sholla served as the chairman
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of the party commission in his electoral zone. Milto and Nikollaq both served terms
as secretary of the party commission, and Jovan took an active role in party publicity.
The Democrats prevailed in the 1992 elections at the national level, although the
Socialist Party won in Kuçovë. The 1996 elections brought the same result.
The Albanian economy collapsed in early 1997, citizens rioted in the streets,
and the prime minister (a Democrat) resigned. The parties formed a coalition
government in March of that year and set an early election date for the new
government in late June. Sholla and his brothers campaigned for the Democrats and
appeared at rallies and meetings for the party in May and June. The police at that time
were controlled by the Socialists, and Sholla faced numerous threats from police
officers during the campaign. On three occasions, those threats were accompanied by
violence. In May 1997, police officers approached Sholla after a Democratic
promotional event in the town of Gegë and stated that they needed to “clarify some
things” with Sholla. They pushed him into a van, told him that he must withdraw
from the party or they would make him “disappear,” and beat him with rubber batons
until he lost consciousness. The police were gone when he awoke, and two strangers
found him and returned him to his home. It took three days for Sholla to recover from
the beating, which bruised his body and left a permanent scar on his upper lip.
Less than one month later, Sholla was returning from a party meeting when he
was stopped by two officers, one of whom he recognized and identified by name for
the IJ. They led him to their car, drove him to another location, and told him to cease
his campaigning efforts for the Democrats. Sholla refused. The officers beat him
while making threats against his life and the lives of his family members. Sholla
suffered bruises on his arm and head, and he carries a scar on the left side of his head
from the beating. He believed that the officers did not kill him because, due to his
prominent position in local Democratic politics, the murder would have been “big
news.” He spent two days recovering from his injuries and then continued his
campaign efforts undeterred. Three weeks later and four days before the election, as
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a peaceful demonstration of Democrats was winding down in Kuçovë, Sholla was
again accosted by police officers who threatened his life and beat him “in a barbarous
way.” Nicollaq was beaten by two different officers on the same day.
The Socialists won the 1997 election, and Sholla and his brothers continued
their work for the Democratic Party. In January 1998, a bomb exploded in Milto’s
house, wounding Milto’s youngest son. He reported it to police, but investigators
took no action. Milto and his family slipped away to a different part of the country
and traveled to the United States in September of that year. He was granted asylum.
Around the same time that Milto arrived in the United States, a bomb destroyed
Jovan’s store. Jovan reported it to the authorities, and the chief of police told him that
“next time his head would disappear.” Jovan accused the local police of setting the
bomb. As a result of his allegations, police arrested and interrogated him but did not
file formal charges. Jovan and his family went into hiding and ultimately sought
refuge in the United States, where Jovan was granted asylum.
Sholla remained in Albania during the two years following the bombings. On
the night of September 27, 2000—mere days before a local election—masked men
came to his door, armed with AK-47 assault rifles. They stood outside and sprayed
gunfire into Sholla’s home. Sholla escaped the attack unharmed, but a bullet wounded
the left leg of his youngest son, Arnato, who was then fifteen years old. Sholla
attached a photo of the wound, as well as photos of the bullet holes in his door, to his
application for asylum. Sholla reported the attack to the authorities, but they took no
action. He believes the Socialist police were behind the attack because he never
received any threats from anyone else.
Sholla and his family fled to stay with his in-laws in Sarandë, Albania. Sholla
obtained a tourist visa from the U.S. Embassy and entered the United States on
December 2, 2000. His wife paid $15,000 for false documentation and entered the
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country illegally two years later to rejoin her husband. Their three children remain
with his wife’s family in Albania. Nikollaq also left Albania and came to the United
States at the same time as Sholla, and he was granted asylum one month prior to
Sholla’s hearing by a different IJ in the same immigration court as the IJ who decided
Sholla’s case.1
Milto testified at Sholla’s hearing, as well. He corroborated Sholla’s testimony
concerning the family’s extensive political involvement, the beatings by police, and
the brothers’ fear for their lives in Albania. He also authenticated Sholla’s
photographs of a wounded Arnato and the aftermath of the assault-rifle attack on
Sholla’s home.
Sholla’s application for asylum included: (1) a letter from the head of the
Kuçovë branch of the Democratic Party describing Sholla’s party activism and
corroborating the attacks against him; (2) a document from the Ex-Politically
Persecuted Association in Albania stating that Sholla was a member of the group and
1
Sholla pointed out this fact in a pre-hearing brief to the IJ, stating that his
brother “was recently granted political asylum by this court.” In the margin of the
brief, which appears in the record before us, the IJ included a handwritten comment:
“NOT BY THIS COURT - [the IJ’s signature].” We respect the autonomy of
individual adjudicators in our legal system and recognize that the IJ was not bound by
the prior decision of a colleague to grant asylum to Sholla’s brother. Nevertheless, we
note that this statement is disrespectful to both Sholla and the judgment of a fellow IJ,
suggests prejudice, and borders upon the kind of inappropriate commentary that has
drawn harsh criticism from our sister circuits. See, e.g., Benslimane v. Gonzales, 430
F.3d 828, 829-30 (7th Cir. 2005) (collecting cases). Although the IJ’s comment
ultimately has no bearing upon our decision in the present case, we have found similar
comments to be material to the outcome of other appeals. See, e.g., Tun v. Gonzales,
485 F.3d 1014, 1027 (8th Cir. 2007) (finding that an alien’s due process rights were
violated as a result of numerous instances of unfairness in his asylum proceedings,
including the fact that “the IJ’s assessment . . . contained commentary . . . that
suggests the IJ may not have acted as a neutral arbiter”).
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had been imprisoned in 1980 for political activities; and (3) other documentation
verifying his identity and the identities of his family members.
The IJ rendered an oral decision at the close of the hearing. The decision
summarized Sholla’s testimony, noting the numerous incidents of violence against
him and his brothers and the apparent political motives behind many of the incidents.
The IJ found Sholla’s testimony to be credible, although it was “somewhat troubl[ing]
that the respondent knew of the [three beatings in 1997] and described them in detail
but his corroborative witness, his brother, . . . seemed to believe that one of the events
happened in 1997 while the other two occurred in 1998.” This perceived discrepancy
was illusory. In reality, Milto testified that Sholla was beaten once in May 1997 and
twice in June 1997, and that Sholla suffered an attack on his home in 2000, after Milto
had fled to the United States. Sholla’s testimony was identical as to the timing of the
beatings and the attack on his home.
The IJ proceeded to deny Sholla’s claims for asylum, withholding of removal,
and relief under the Convention Against Torture. As to asylum and withholding of
removal, the IJ did not dispute the events described in Sholla’s testimony, but
nevertheless found “that the things that happened to [Sholla] in 1997 are not sufficient
to meet the burden of proof that the respondent has a well-founded fear of future
persecution” because the record included reports asserting that conditions in Albania
have improved since that time. As to the assault-rifle attack, the IJ gave it little weight
and did not credit Sholla’s circumstantial evidence of a political motive, concluding
that “there’s just not enough evidence to show” that it was carried out or directed by
police officers, or that they acquiesced in it. In sum, the IJ’s opinion largely ignores
the question of whether the internment, beatings, and assault-rifle attack constituted
past persecution, even though the IJ found Sholla credible and noted that the country
reports supported Sholla’s testimony regarding the past incidents of violence against
him. The IJ’s opinion contains only one clause addressing the issue of past
persecution: “while the respondent may have been harassed or even subject to police
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brutality on some isolated occasions seven years ago, the Court cannot find that rises
to persecution within the meaning of the [Immigration and Nationality] Act.”
The IJ also denied Sholla’s claim for relief under the Convention Against
Torture, finding that “there is nothing to show that the experiences that the respondent
suffered were so severe that they amount to torture within the meaning of the
regulations.”
Sholla appealed to the Board, and it adopted and affirmed the decision of the
IJ without comment.
II. DISCUSSION
In an asylum case, “[w]e review the Board’s factual findings for substantial
evidence and its legal determinations de novo.” Ntangsi v. Gonzales, 475 F.3d 1007,
1011 (8th Cir. 2007). When the Board affirms the decision of the IJ without a
separate opinion, we review the decision of the IJ. Bushira v. Gonzales, 442 F.3d 626,
630 (8th Cir. 2006). Under the substantial evidence standard, we must affirm unless
the evidence is “so compelling that no reasonable factfinder could fail to find” that the
petitioner qualifies for asylum. INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992).
To meet the eligibility requirements for asylum relief, an applicant must show
that he is “unable or unwilling to return to . . . [the designated country for removal]
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). Persecution is “an extreme concept” that excludes “[l]ow-
level intimidation and harassment.” Shoaira v. Ashcroft, 377 F.3d 837, 844 (8th Cir.
2004) (quotation omitted). It is also a “fluid concept,” Bellido v. Ashcroft, 367 F.3d
840, 843 (8th Cir. 2004), one this court has defined to include the threat of death, the
threat or infliction of torture, and the threat or infliction of injury to one’s person or
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one’s liberty on account of a protected ground. Regalado-Garcia v. INS, 305 F.3d
784, 787 (8th Cir. 2002). If an alien establishes that he was the victim of past
persecution, the IJ must presume that his fears of future persecution on the same basis
are well-founded. 8 C.F.R. § 1208.13(b)(1). The burden of proof then shifts to the
government. Id. § 1208.13(b)(1)(ii). To meet this burden, the government must show,
by a preponderance of the evidence, that there has been a “fundamental change in
circumstances” that renders the alien’s fears of persecution unfounded, or that the
alien could effectively and reasonably avoid persecution by relocating to another part
of the country of removal. Id. § 1208.13(b)(1)(i)(A), (B).
At the outset, we note that the IJ’s opinion did not proceed according to
analytical framework of 8 C.F.R. § 1208.13. Sholla clearly and unquestionably
alleged past persecution by state officers on account of his political beliefs. This
allegation raises the threshold question of whether he met his burden of proof to
establish past persecution, which would entitle him to the presumption of a well-
founded fear of future persecution in his native country. The IJ’s opinion either
ignores this initial step or conflates it with steps that would become appropriate only
after deciding this threshold issue. When an alien alleges past persecution, the IJ
commits legal error if she fails to make a finding on whether the alien did in fact
establish past persecution. See Bushira, 442 F.3d at 631-33. In such cases, we will
generally remand the case to the Board to make such a determination and apply the
correct legal standard. Id. at 633.
The opinion proceeds as if Sholla had never sought the benefit of the
presumption based on past persecution: the IJ describes the incidents in Sholla’s
testimony in light of evidence of improved conditions in Albania and concludes that
Sholla failed to “meet the burden of proof to show that [he] has a well-founded fear
of persecution.” Without more, this would warrant remand under the reasoning of
Bushira. Id. at 631-33. Several pages later, however, the opinion does include an
isolated, conclusory statement that the incidents described by Sholla “do not rise[] to
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persecution.” While we question whether this statement amounts to a clear, cogent
finding on the issue of past persecution given its context, it is nevertheless possible
to characterize it as a finding that Sholla failed to establish past persecution because
the IJ believed the incidents in his past were not severe enough to constitute
persecution.2
Fortunately, we need not engage in a delicate interpretation of the IJ’s opinion;
the question of whether the IJ’s statement amounted to a finding on the issue of past
persecution is ultimately irrelevant to our disposition of this case on appeal. Even if
the IJ did make such a finding, substantial evidence would not support it. For the
reasons discussed below, we believe the record compels any reasonable factfinder to
conclude that Sholla suffered past persecution on a protected ground.
Sholla, his wife, and his toddler daughter spent two years in a hard-labor camp
because Sholla preached the tenets of democratic government in a Communist state.
One of his brothers served a three-year internment for the same reason. After the Cold
War ended, Sholla and his brothers took an active role in promoting the newly-formed
Democratic Party in Albania. In the three years before Sholla fled Albania, the
Socialist-backed police threatened Sholla and his family members with death, singled
out and brutally beat Sholla on several occasions with rubber batons, beat at least one
2
The IJ stated that the country reports gave “no indication that the Socialist
Party, either through its own organization or through the government, is engaging in
any pattern of repression or violent behavior against opponents.” While we question
that reading of the record, we also note that the absence of a pattern and practice of
persecution by government officials does not determine the question of whether
Sholla suffered past persecution. See Corado v. Ashcroft, 384 F.3d 945, 947 (8th Cir.
2004) (per curiam) (“We consistently have defined persecution . . . without any
suggestion of a ‘pattern and practice’ requirement.”). A pattern and practice of
persecution in a given country becomes relevant only if an alien has not shown past
persecution or any evidence of a “reasonable possibility that he or she would be
singled out individually for persecution.” See 8 C.F.R. § 1208.13(b)(2)(iii).
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of his brothers, and ordered Sholla to cease his political activities. One brother’s
home was bombed, wounding Sholla’s nephew. Another brother’s store was bombed,
and a police officer told his brother that “next time his head would disappear.”
Masked men with assault rifles fired bullets into Sholla’s home, wounding his
youngest son. Sholla provided corroborating evidence of these events, including his
brother Milto’s consistent testimony, and the IJ specifically found Sholla credible and
gave no valid reasons for questioning the veracity of his claims.
In short, Sholla’s persecutors made numerous and credible threats to kill Sholla
and his family because of their political activities, punctuated by savage beatings,
imprisonment, bombings, and high-caliber gunfire directed at his home. This
country’s asylum statute would be quite hollow indeed if our definition of persecution
required Sholla to wait for his persecutors to finally carry out their death threats before
Sholla could seek refuge here. Our accepted definition of persecution is far less
demanding, and the numerous incidents that Sholla describes fall squarely within it.
Therefore, we find the evidence sufficient to compel a finding of past persecution.
Sholla was therefore entitled to the presumption of a well-founded fear of future
persecution, which shifts the burden to the government to prove either: (1) that there
has been a “fundamental change in circumstances” that negate his otherwise well-
founded fears of persecution, or (2) that it would be reasonable for Sholla to live in
a different part of Albania and that he could avoid persecution by doing so. 8 C.F.R.
§ 1208.13(b)(1)(i). The IJ did discuss the current country conditions in Albania and
raised the possibility of relocation, but never with the burden of proof upon the
government. On the contrary, the IJ repeatedly emphasized that the burden of proof
was upon Sholla, even when discussing changed country conditions. The IJ does not
so much as mention the possibility of shifting the burden of proof to the government.
The opinion does state that “circumstances and conditions in Albania have
changed to such an extent that . . . respondent and his family could return at this time.”
Arguably, this statement could reflect an alternative holding that the government had
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shown changed country conditions by a preponderance of the evidence. Given the
context of the opinion as a whole, however—including its constant reference to
Sholla’s burden and its general analytical infirmity—we cannot assume that this lone,
ambiguous statement constitutes a clear alternative holding upon which we may affirm
the denial of Sholla’s asylum claim. In short, the IJ has not yet considered the
question of whether the government met its burden of proving that Sholla’s
presumptively well-founded fear of future persecution is no longer sound due to a
“fundamental change in circumstances” in Albania.
We hold that the evidence would compel any reasonable factfinder to conclude
that Sholla had suffered past persecution. We remand this case to the Board for
reconsideration of Sholla’s claim, with the burden upon the government to prove that
Sholla’s fear of future persecution is no longer well-founded because of recent,
fundamental changes in Albania, or because Sholla could safely and reasonably
relocate to a different region of Albania.
III. CONCLUSION
For the foregoing reasons, we grant the petition for review.
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