Filed: Jul. 05, 2006
Latest Update: Feb. 21, 2020
Summary: The BIA held that even assuming Islami, had suffered past persecution, country conditions in Albania have, changed and Islami no longer has a well-founded fear of persecution, in Albania, and it dismissed his appeal. and human rights, groups in Albania report fewer incidents of police beatings.
Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 05-2143
GENC ISLAMI,
Petitioner,
v.
ALBERTO GONZALES, UNITED STATES ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF A
DECISION OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Circuit Judge,
Hug,* Senior Circuit Judge,
and Lynch, Circuit Judge.
James D. Christo, on brief for petitioner.
Jean B. Weld, Assistant United States Attorney, United States
Attorney's Office, and Thomas P. Colantuono, United States
Attorney, on brief for respondent.
July 5, 2006
*
Of the Ninth Circuit, sitting by designation.
Per Curiam. Genc Islami ("Islami"), an Albanian citizen who
emigrated to the United States in 2000 on a fraudulent passport,
applied for asylum, withholding of removal, and relief under the
Convention Against Torture. The BIA held that even assuming Islami
had suffered past persecution, country conditions in Albania have
changed and Islami no longer has a well-founded fear of persecution
in Albania, and it dismissed his appeal. Holding substantial
evidence supports the BIA’s decision, we DENY Islami’s petition for
review.
I. Background
Islami is a thirty year-old Albanian native who emigrated to
the United States to escape mistreatment by the Albanian police for
his expressive activities in opposition to the communist government
then in power. Islami conceded removability but applied for
political asylum under Section 208 of the Immigration and
Nationality Act, withholding of removal under Section 241(b)(3) of
the Act, and relief under Article III of the Convention Against
Torture. Claiming past persecution "at the hands of the [Albanian]
government, police and individuals it failed/refused to control,”
Islami testified to receiving two beatings by Albanian police, one
in 1991 and one in 1998; to receiving death threats from persons
who, Islami suspects, were former Secret Police officers; to
authoring letters to U.S. Congressmen criticizing the Albanian
government as abusive; and to his belief that the "Albanian
government and/or its agents" would "kill" him if he returned to
Albania because he "all the time has opposed the [communist]
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government," and to his belief that the current government of
Albania is, in fact, a communist government in disguise.1
The IJ found Islami's testimony to be credible but doubted
that the two beatings in 1991 and 1998 and subsequent threats
qualified as "persecution" on account of real or imputed
anti-government political opinion. However, the IJ did not reach
that issue because he found that Albanian country conditions had
changed, and Islami no longer had an objectively well-founded fear
of future persecution. Because the "clear probability" standard
for withholding of removal and relief under the Convention Against
Torture is more rigorous than the well-founded-fear requirement for
asylum, the IJ denied all forms of relief and ordered Islami
removed to Albania. The BIA agreed and dismissed the appeal.
II. Discussion
We have jurisdiction pursuant to 8 U.S.C. § 1252(d) because
Islami exhausted his administrative remedies. See 8 U.S.C. §
1252(d)(1). We review findings of fact and credibility by the BIA
"under a deferential 'substantial evidence' standard."
Alvarez-Flores v. INS, 909 F.2d 1, 3 (1st Cir. 1990); Novoa-Umania
v. INS,
896 F.2d 1, 2 (1st Cir. 1990) ("[W]e must uphold any
finding of fact that is supported by 'substantial evidence.'").
BIA determinations of statutory eligibility for relief from
1
The State Department has concluded that many asylum requests by
Albanians assert, as Islami does, that the present Socialist
government is really the old Communist Party reconstituted;
however, this is not borne out by Department of State documents,
including Albania – Country Report on Human Rights Practices – 2003
(issued in 2004).
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deportation, whether via asylum or withholding or removal, are
conclusive if "supported by reasonable, substantial, and probative
evidence on the record considered as a whole." Gebremichael v.
INS, 10 F.3d 28, 31 (1st Cir. 1993). Absent an error of law, the
BIA's decisions may be overruled only if the evidence "points
unerringly in the opposite direction." Laurent v. Ashcroft,
359
F.3d 59, 64 (1st Cir. 2004).
An applicant for asylum bears the burden to prove the criteria
for asylum, and the criteria for any withholding of removal
requested. Nikijuluw v. Gonzales, 427 F.3d 115, 120 (1st Cir.
2005); Matter of Acosta, 19 I & N Dec. 211 (BIA 1985), modified on
other grounds, Matter of Mogharrabi, 19 I & N Dec. 439 (BIA 1987).
A credible showing of past persecution gives rise to a regulatory
presumption that the applicant has a well-founded fear of future
persecution. See In Re H, 21 I. & N. Dec. 337, 346 (BIA 1996); 8
C.F.R. § 208.13(b)(1). Islami criticizes the BIA’s finding that
the Attorney General successfully rebutted this presumption by
showing changed country conditions in Albania.
Even if Islami had suffered past persecution, substantial
evidence supports the BIA’s finding conditions in Albania have
improved. Islami’s ordinary presumption of a well-founded fear is
rebutted by a preponderance of evidence that "[t]here has been a
fundamental change in circumstances such that [Islami] no longer
has a well-founded fear of persecution in [his] country of
nationality." 8 C.F.R. § 208.13(b)(1)(i)(A). We do not dispute
that Islami’s fear is subjectively genuine. However, his fear must
also be objectively reasonable," Aguilar-Solis v. INS, 168 F.3d
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565, 572 (1st Cir. 1999), shown "’by credible, direct, and specific
evidence, ... facts that would support a reasonable fear that the
petitioner faces persecution.’" Guzman v. INS, 327 F.3d 11, 16
(1st Cir. 2003). We hold that Islami’s fear cannot be objectively
reasonable because substantial evidence supports the BIA’s finding
that, today, Albanians need not have the same fear of significant
police harassment on account of their political opinions.
Several recent political developments offer cause for
optimism, at least on paper. Albania is now a republic comprised
of a multi-party parliament. Its constitution expressly prohibits
police and other governmental authorities from engaging in torture,
degrading or inhumane treatment, or forcibly obtaining confessions.
It provides for an independent judiciary, the right to a fair,
speedy and public trial, freedom of assembly, and peaceful change
of government. The Albanian Penal Procedures Code provides
guidelines for the detention of suspects, in addition to counsel
for indigent detainees. Moreover, Albania appears to have joined
several international human rights agreements, including the
International Covenant on Civil and Political Rights; the United
Nations Convention Against Torture; the European Convention for the
Protection of Human Rights and Fundamental Freedoms ("ECHR"); the
European Convention for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment; and Protocol No. 6 to the ECHR
abolishing the death penalty.
The Albanian Parliament has elected a national People’s
Advocate charged with investigating and prosecuting official
abuses, including police mistreatment, and successful prosecutions
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have occurred. Amnesty International reports that human rights
training is now provided to the police by international human
rights organizations at a centralized police academy. And the
latest evidence shows these steps may be having an effect:
political killings or disappearances appear to have declined;
elections have had fewer irregularities; political parties, trade
unions, and various social groups, although still facing political
pressure, may now publish their own newspapers; and human rights
groups in Albania report fewer incidents of police beatings. Where
police beatings have occurred, there have been reports of
successful prosecutions.
Although police brutality does remain a problem in Albania,
substantial evidence suggests that it is one of abuse of authority.
It does not appear to be directed at repressing political
viewpoints. Every Albanian citizen is a potential victim. Yet,
this fact does not render every Albanian citizen eligible for
political asylum in the United States. In Islami's case,
substantial evidence supports the BIA's finding that, in light of
the many changes Albania has experienced over the six years since
Islami left, there is simply no reason to believe that Islami's
return would be met with any more than indifference – and certainly
not that Islami would immediately be singled out for persecution.
Islami terminated his membership in the Albania Youth
Democratic Party Forum in 1994, he is not a member of the current
opposition Democratic Party, and Islami offered no evidence that
his political involvements since 2000 have drawn the attention of
the new Socialist government, or its supporters. Moreover,
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"[t]here is nothing in the State Department reports that indicate
that the Socialist party routinely arrests, jails, or persecutes
members of the Democratic Party." Hasalla v. Ashcroft, 367 F.3d
799, 804 (8th Cir. 2004) (holding that changed country conditions
in Albania rebutted a presumption that an Albanian Democratic Party
member persecuted under the communist regime and harassed from 1995
through 1998 had a well-founded fear that he would suffer future
persecution). To the contrary, the Democratic Party is now the
second largest party in the Albanian Parliament, with significant
representation.
III. Conclusion
Although changed country conditions will not automatically
rebut an applicant’s presumption of well-founded fear, the evidence
here negates Islami’s well-founded fear of future persecution. See
Fergiste v. INS, 138 F.3d 14, 19 (1st Cir. 1998) ("[C]hanges in
country conditions must be shown to have negated the particular
applicant's well-founded fear..."). Therefore, because substantial
evidence supports the BIA’s affirmance of the IJ’s denial of
asylum, withholding of removal, and relief under the Convention
Against Torture, we DENY Islami’s petition.
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