Vasili v. Holder

United States Court of Appeals
For the First Circuit

No. 13-1273

KOSTA VASILI; ANDRONIQI VASILI;
KLEOPATRA VASILI; ALEKSANDROS VASILI,

Petitioners,

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS

Before

Torruella, Ripple,* and Thompson
Circuit Judges.

Saher J. Macarius and Audrey Botros on brief, for petitioners.
Deitz P. Lefort, Trial Attorney, Office of Immigration
Litigation, Stuart F. Delery, Acting Assistant Attorney General,
Civil Division, and Derek C. Julius, Senior Litigation Counsel, on
brief, for respondent.

October 16, 2013

*
Of the Seventh Circuit, sitting by designation.
 THOMPSON, Circuit Judge. Petitioner Kosta Vasili, a

native and citizen of Albania, seeks review of a final removal

order requiring him and his wife, Androniqi, and their two

children, Kleopatra and Aleksandros, to return to Albania.1 The

petitioners say their application for asylum should have been

granted on the basis of past persecution and their well-founded

fear of future persecution if they are returned to their homeland.

We affirm the final removal order.

I. BACKGROUND

Kosta was born in Finiq, Albania in September of 1961 and

he and Androniqi married in 1992. Kosta did not have a good life

under Communist2 rule, and in March of 1992 he became involved with

the founding of Albania's Democratic Party. Kosta assisted the

fledgling political party by traveling to various villages handing

out flyers, "pretty much advertising for the new party." Some time

later, he and his wife relocated to Greece, where Kosta found

occasional work as an auto mechanic. He did not have a right to

permanently remain in Greece, and he returned to Albania on

1
Androniqi, Kleopatra, and Aleksandros are derivatives of
Kosta Vasili's application for asylum. We refer to the individual
petitioners by their first names for the sake of clarity, and we
utilize the spellings set forth in their applications for asylum
and for withholding of removal.
2
Kosta used the term "communists" to refer to communists,
socialists, and members of the Socialist Party. As the
distinctions between these groups are not material here, we follow
this convention and use the terms interchangeably.

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multiple occasions to visit his mother, brother, and sister. Kosta

and Androniqi's daughter, Kleopatra, was born in Greece in 1993.3

Kosta and his family returned to Albania in June of 2001 and moved

in with his mother. While there he resumed his political

involvement, which once again consisted of passing out flyers and

advocating for the Democratic Party. It was not long after the

family's return to Albania that the two incidents upon which the

petitioners base their claim for asylum occurred.

One day, Kleopatra was playing alone outside when she was

seriously injured after strangers threw something into their home's

courtyard. Kosta did not specify what this "something" was in his

testimony before an immigration judge ("IJ"), but in his written

declaration in support of his application for asylum, he stated

masked men threw a grenade into the yard. According to the written

application, the blast knocked Kleopatra off a set of stairs where

she had been sitting.

Androniqi was inside the home at the time of the incident

and did not see what happened. She heard a "big noise" while their

daughter was outside, and when she went to investigate she saw

3
Kosta testified before an immigration judge ("IJ") that
Kleopatra was born in 1997. However, he listed Kleopatra's date of
birth as July 22, 1993, on his application for asylum and indicated
in his declaration in support thereof that she was eight years old
at the time of an incident in 2001. The IJ also found that
Kleopatra was eight years old at the time of the incident. While
we note the discrepancy in age, the IJ found Kosta generally
credible, and it is immaterial to the outcome at any rate.

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Kleopatra on the ground. She surmised that Kleopatra fell off the

stairs and hurt herself. Androniqi believes the noise she heard

was the sound of a grenade because Kleopatra told her later that

she heard a loud sound before she fell.

Kleopatra suffered a serious head injury from her fall.

The Vasilis took their daughter to the hospital, where she

immediately underwent surgery. Kleopatra remained hospitalized for

ten to twelve days.

Kosta does not know who was behind this incident, but he

suspects it was perpetrated by members of the Socialist Party

because of his involvement with the Democratic Party. He believes

this is so because his entire family had problems with the

communists in the past, particularly his grandfather (who was

jailed) and his uncle. He himself indicated that he was not

permitted to attend school or to carry a gun when he served in the

army. Androniqi does not know who was behind the incident either,

but like her husband she suspects it was "people that were against

[her] husband because he was working for the new democracy, the

party."

The second incident occurred in July of 2001. Three men

wearing helmets and carrying guns stopped Kosta while he was

driving. The men beat Kosta with their guns and warned him to stop

working with the Democratic Party. There is no evidence in the

record as to the nature and extent of any injuries Kosta suffered

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or whether he sought medical treatment as a result of this beating.

Kosta did not report either of these two incidents to the

police because he did not believe they would help him or even

investigate what had happened. Instead, Kosta and his family left

Albania and traveled to Greece, where they obtained visas

permitting entry into the United States. They entered the country

in August of 2001 and ultimately overstayed their visas. Conceding

their removability, the petitioners filed applications for asylum,

withholding of removal, and protection under the Convention Against

Torture ("CAT").

Kosta testified before an IJ, expressing fears of

returning to Albania because of what happened to him and his family

in the past. If he goes back, he believes he will once again

become a target as a result of his political beliefs and

activities. While he admitted the Democratic Party has won

elections in Albania in recent years, he also stated that the

people who harmed him and his family remain in his village. Kosta

conceded, however, that no one has harmed his mother, brother, or

sister in any way since he left Albania in 2001.

The IJ also considered the Department of State's 2009

Country Report on Albania ("Country Report"). The Country Report

indicates the Albanian constitution gives its citizens the right to

peacefully change their government, and this right is in fact

exercised through periodic elections. Although the most recent (as

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of the date of the Country Report) parliamentary elections occurred

in a polarized environment in which media coverage was biased in

favor of the Socialist Party and Democratic Party (which, we note,

Kosta supports), a total of thirty-two political parties campaigned

freely across the country. Political parties operated without

outside influence and there were no major disputes or violence

throughout the election. The Country Report does not indicate

there has been any politically-motivated violence between

supporters of the Democratic and Socialist Parties or, for that

matter, that politically-motivated violence is a problem anywhere

in Albania.

The IJ denied the petitioners' requests for asylum,

withholding of removal, and protection under CAT. She found that

both Kosta and Androniqi were credible witnesses, but failed to

show they were eligible for asylum. While the IJ characterized the

injury to Kleopatra as a "very serious and unfortunate incident,"

she determined that the petitioners did not prove any connection

between the incident and Kosta's political beliefs. According to

the IJ, Kosta and Androniqi's suspicions, standing alone, were

insufficient to meet their burden of proof. She also determined

the second incident did not rise to the level of persecution

because Kosta did not show he experienced something more than

unpleasantness, harassment, or even basic suffering. As such, the

IJ concluded the petitioners were not eligible for asylum because

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they failed to sustain their burden of demonstrating they had been

persecuted in the past on account of Kosta's political views.

The IJ continued. Even if the petitioners had been able

to establish past persecution, any presumption of a well-founded

fear of future persecution had been rebutted by fundamental changes

chronicled in the Country Report. She specifically relied on the

Report's conclusion that there had been no major disputes or

violence during the last elections, along with the lack of any

reports of politically-motivated violence between members of the

Socialist Party and the Democratic Party. The IJ also found it

significant that Kosta's mother and siblings have remained in

Albania since the summer of 2001 and have not been harmed in any

way. Wrapping things up, the IJ found the petitioners did not have

a well-founded fear of future persecution and denied their request

for asylum.

The petitioners appealed to the Board of Immigration

Appeals ("BIA"), which issued a written decision on January 29,

2013. Without disturbing the IJ's credibility determination, the

BIA agreed that the petitioners failed to meet their burden of

proof. The BIA found the petitioners did not establish past

persecution because there was no evidence Kleopatra's injuries were

caused by the Socialist Party instead of "an unusual accident." As

for the incident involving the three men with guns, the BIA

determined it did not result in injuries severe enough to qualify

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as "persecution." The BIA concurred that the Country Report

demonstrated a fundamental change in circumstances sufficient to

rebut any presumption of a well-founded fear of future persecution.

Thus, the BIA concluded the petitioners failed to demonstrate

eligibility for asylum, withholding of removal, or protection under

CAT, and dismissed their appeal.

The petitioners' timely appeal to this Court followed.

II. DISCUSSION

Our review of the proceedings below "is limited to

determining whether substantial evidence in the administrative

record supports the IJ's findings that petitioner[s] neither

suffered from cognizable past persecution nor demonstrated a well-

founded fear of future persecution." Lumaj v. Gonzales, 446 F.3d

194, 198 (1st Cir. 2006). The standard of review is "deferential,"

and we must uphold the BIA's decision "so long as its decision is

supported by substantial evidence in the record." Topalli v.

Gonzales, 417 F.3d 128, 131 (1st Cir. 2005) (quoting Rodriguez-

Ramirez v. Ashcroft, 398 F.3d 120, 123 (1st Cir. 2005)).

Determinations as to witness credibility are to be accorded "great

respect" when supported by specific findings. Lumaj, 446 F.3d at

198.

Here, the IJ rendered a decision from the bench and the

BIA released a detailed written opinion affirming the IJ's decision

and providing its own analysis. Accordingly, we review both

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decisions. Rashad v. Mukasey, 554 F.3d 1, 4 (1st Cir. 2009).

Questions of law, of course, are reviewed de novo. López-Castro v.

Holder, 577 F.3d 49, 52 (1st Cir. 2009). And, barring an error of

law, we reverse "only if the record is such as to compel a

reasonable factfinder to reach a contrary determination." Chhay v.

Mukasey, 540 F.3d 1, 5 (1st Cir. 2008).

A. Request for Asylum

Pursuant to 8 U.S.C. § 1158(b)(1) and 8 C.F.R. § 208.13,

an applicant for asylum bears the burden of proof and "must show

either past persecution or well-founded fear of future

persecution." Albathani v. Immigration & Naturalization Serv., 318

F.3d 365, 373 (1st Cir. 2003). To establish past persecution, the

applicant must demonstrate such persecution was "on account of

race, religion, nationality, membership in a particular social

group, or political opinion." 8 C.F.R. § 208.13(b)(1); see also

8 U.S.C. § 1158(b)(1)(B)(i). We have previously held that to

qualify as "persecution" within the meaning of the statutory

definition, the complained-of acts must be "the direct result of

government action, government-supported action, or government's

unwillingness or inability to control private conduct." Nikijuluw

v. Gonzales, 427 F.3d 115, 120-21 (1st Cir. 2005).

An applicant's successful showing of past persecution

"establishes a rebuttable presumption of a well-founded fear of

future persecution." Harutyunyan v. Gonzales, 421 F.3d 64, 67 (1st

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Cir. 2005); see also 8 C.F.R. § 208.13(b)(1). The presumption of

well-founded fear may be rebutted if the government is able to

establish, by a preponderance of the evidence, that "[t]here has

been a fundamental change in circumstances such that the applicant

no longer has a well-founded fear of persecution." 8 C.F.R.

§ 208.13(b)(1)(i). Information appearing in a country report

showing "fundamental changes in the specific circumstances that

form the basis of a petitioner's presumptive fear of future

persecution" may be sufficient to rebut any well-founded fear of

future persecution. Uruci v. Holder, 558 F.3d 14, 19-20 (1st Cir.

2009) (quoting Chreng v. Gonzales, 471 F.3d 14, 22 (1st Cir.

2006)).

1. Past Persecution

An individual seeking asylum "'bears a heavy burden,'"

and faces a "'daunting task'" in establishing subjection to past

persecution. Alibeaj v. Gonzales, 469 F.3d 188, 191 (1st Cir.

2006) (quoting Guzman v. Immigration & Naturalization Serv., 327

F.3d 11, 15 (1st Cir. 2003)). To meet this standard, "the

discriminatory experiences must have reached a fairly high

threshold of seriousness, as well as [occurred with] some

regularity and frequency." Id. Infrequent beatings, threats, or

periodic detention, we have said, do not rise to the level of

persecution, and the nature and extent of an applicant's injuries

are relevant to the ultimate determination. See Attia v. Gonzales,

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477 F.3d 21, 23-24 (1st Cir. 2007) (no persecution where the

applicant was beaten twice over a nine year period and experienced

a "general climate of discrimination"); Topalli, 417 F.3d at 132

(seven arrests accompanied by short periods of detention and

physical beatings over the span of two years found not to

constitute past persecution); Bocova v. Gonzales, 412 F.3d 257,

263-64 (1st Cir. 2005) (no past persecution where the petitioner

was arrested, beaten, and threatened with death twice in an eight

year period, even though one of those incidents resulted in a loss

of consciousness and subsequent hospital treatment); Nelson v.

Immigration & Naturalization Serv., 232 F.3d 258, 263-64 (1st Cir.

2000) (no persecution where the petitioner had been subjected to

physical abuse and placed in solitary confinement for less than

seventy-two hours on three different occasions). Thus,

"persecution requires 'more than mere discomfiture, unpleasantness,

harassment, or unfair treatment'" and "'implies some connection to

government action or inaction.'" López-Castro, 577 F.3d at 54

(quoting Nikijuluw, 427 F.3d at 120-22).

Here, the IJ found that the petitioners submitted

credible evidence regarding two incidents: the injury to Kleopatra

and the "traffic stop incident" in which Kosta was beaten by three

men with guns. However, the IJ found--and the BIA agreed--that the

testimony as to these incidents was not sufficient to establish

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past persecution. We are satisfied that these decisions were

supported by substantial evidence in the record.

With respect to the first incident, both Kosta and

Androniqi admitted they did not witness what happened--in fact, it

is not clear from the record what actually occurred that day--nor

do they know who was responsible. While they both suspect they

were targeted because of Kosta's political activities, this is

nothing more than sheer speculation and supposition. There was no

evidence whatsoever of a connection between the incident and

government action or inaction. Without any evidence of who was

responsible or what prompted the incident, "it is no more than a

guess that a nexus existed between the [incident] and a statutorily

protected ground." See López-Castro, 577 F.3d at 53. The

petitioners' hypothesis as to the identity and motivation of the

perpetrators is insufficient to meet their burden of proof. See

id.

Substantial evidence also supported the conclusion that

the "traffic stop incident" did not rise to the level of

persecution. While the IJ credited Kosta's testimony that members

or supporters of the Socialist Party administered the beating and

were motivated by Kosta's political activities, the record is

wholly devoid of evidence as to the nature and extent of Kosta's

injuries, if any. There is no evidence as to whether he sought

medical attention as a result of the incident. Furthermore, there

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is no evidence Kosta was detained or imprisoned in connection with

that incident or at any point after his return to Albania in 2001.

We have previously determined that much more egregious acts of

violence and imprisonment, including attacks resulting in a loss of

consciousness and repeated detentions, are not sufficiently severe

as to constitute persecution.

Summing up, while Kleopatra certainly suffered a tragic

and serious injury in 2001, the evidence in the record does not

compel us to find the incident was "on account of" Kosta's

political opinions or activities. Similarly, the BIA and the IJ's

finding that the "traffic stop incident" did not rise to the level

of persecution is supported by substantial evidence. Thus,

substantial evidence supported the BIA and the IJ's determination

that the petitioners failed to demonstrate they experienced past

persecution.

2. Fundamental Change in Albania

The BIA and the IJ proceeded to analyze Kosta's

application with the assumption that past persecution had been

shown. Both concluded the petitioners do not have a well-founded

fear of future persecution should they be returned to Albania.

Having carefully reviewed the entire record, we are not "compelled"

to disagree.

Noting Kosta's mother, sister, and brother's ongoing

residence in Albania since his 2001 departure, the IJ found it

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significant that none of them have had any problems with the

Socialists or the government, even though Kosta's own testimony

indicated that his entire family had a generations-long history of

difficulty with both. Under such circumstances, where the record

does not "provide[] a satisfactory differentiation" between a

petitioner and similarly-situated family members, Aguilar-Solis v.

Immigration & Naturalization Serv., 168 F.3d 565, 573 (1st Cir.

1999), the lack of harm to remaining family members is a factor

that is "entitled to weight in the decisional calculus." López-

Castro, 577 F.3d at 54 n.4. That Kosta's family members continued

to live unharmed in Albania explicitly and permissibly weighed

against the reasonableness of his fear of future persecution should

he return. Given the limited scope of our review, it is not for us

to second-guess the weight the IJ assigned to this factor.

The BIA and the IJ also found that the Country Report

showed a fundamental change in Albania's political climate since

the petitioners' departure. They concluded these changes rebut any

presumption that the petitioners could have a well-founded fear of

future political persecution. This finding is supported by

substantial evidence in the administrative record.

According to the Country Report, Albanian citizens

exercise their right to change their government peacefully through

periodic elections. The most recent election prior to the IJ's

decision took place in a "highly polarized environment" in which

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thirty-two parties campaigned freely, there was no major violence,

and the parties operated without restriction or outside

interference. There were no reports of political violence between

Socialist and Democratic Party members or, for that matter, of any

politically-motivated violence.

Nevertheless, the petitioners argue the BIA and the IJ

erred because the Country Report also points out the presence of

criminal violence in Albania, as well as some corruption and

incompetence within the police force. This argument is wholly

without merit. General criminal activity is not evidence of a

well-founded fear of political persecution. See, e.g., id. at 53

("[A]lthough crime is an unpleasant consequence of life in many

modern societies, victimization by a criminal element, without

more, is not probative of ethnic persecution."). Simply put, the

Country Report does not reflect any political persecution in the

recent past.

Indeed, our decisions over the last several years

recognize the "fundamental change" in Albania's political climate.

In 2009 we affirmed the denial of an Albanian national's

application for asylum. Uruci 558 F.3d at 16. Uruci involved a

member of the Democratic Party who alleged he would be persecuted

if returned to Albania. Id. In affirming the immigration judge's

denial of the application we relied upon our 2006 opinion in Tota

v. Gonzales, 457 F.3d 161 (1st Cir. 2006), where we found "that

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'substantial evidence culled from the [2004] State Department

asylum claims report, specifically tailored to the discussion of

political persecution of [Democratic Party] members by the

Socialist government, supports [a] finding that the government met

its burden of rebutting [a] . . . presumptive well-founded fear of

persecution.'" Uruci, 558 F.3d at 20 (quoting Tota, 457 F.3d at

168 (bracketed text and ellipses in original)). We then proceeded

to uphold several administrative findings: violence in Albania

peaked in 1997 and 1998 and subsequently declined, the government

and political parties do not engage in policies of abuse or

coercion against political opponents, and there are no indications

that the Socialist Party engages in a pattern of repression or

violent behavior against its opponents. Id.

And in 2010 we determined that another Albanian citizen

did not have a well-founded fear of future persecution at the hands

of the Socialist Party. Nako v. Holder, 611 F.3d 45, 50 (1st Cir.

2010). The Department of State's 2006 Country Report and 2006

Profile of Asylum Claims and Country Conditions for Albania

established that "there were no major outbreaks of political

violence in Albania since 1998," the Democratic Party was in power

after peaceful elections in 2005, and "the political parties had

ceased abuse or coercion of political opponents." Id. at 48. Of

particular import here is the following observation:

Those reports not only indicated that the
Democratic Party now controls Albania, but

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 also thoroughly documented the cessation of
politically motivated violence and persecution
by either party as well as a decline in police
misconduct. This court has previously deemed
these particular facts fatal to nearly
identical petitions for review by other
Albanian Democratic Party members who have
claimed a fear of political persecution by the
Socialist Party.

Id. at 49 (emphasis added) (citing Uruci, 558 F.3d at 19-20;

Alibeaj, 469 F.3d at 193; Bollanos v. Gonzales, 461 F.3d 82, 86

(1st Cir. 2006); Tota, 457 F.3d at 166-68). The petitioner in Nako

had "not pointed to any concrete acts of political violence" to

call the conclusions of the 2006 Country Report into question, nor

did he present any evidence that he would likely be singled out for

political persecution by the Socialist Party. Id. at 50.

Here, as in Nako, the BIA and the IJ relied on the

Country Report to support their finding of fundamental change in

Albania. There is not even a scintilla of evidence in the record

contradicting or calling into question any of the findings

contained within the Country Report. The petitioners did not

present any evidence showing the resumption or likely resumption of

political violence in Albania, nor did they come forward with any

evidence showing Kosta is likely to be singled out and subjected to

political persecution should he return there. As no reason has

been presented to us as to why we should depart from our holdings

in Nako, Uruci, and Tota, we affirm the BIA and the IJ's

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determination that the petitioners do not have a well-founded fear

of future persecution and are, therefore ineligible for asylum.

B. Alternative Requests

Although the petitioners initially sought withholding of

removal and/or protection under CAT, they do not press these claims

on appeal. Their brief only addresses Kosta's request for asylum,

and alternative forms of relief are not mentioned at all until the

final page. Even there, however, withholding of removal and

protection under CAT merely appear as part of their boilerplate

prayer for relief. Therefore, we find the petitioners have waived

any request for withholding of removal or protection under CAT.

See Nikijuluw, 427 F.3d at 120 n.3 (petitioner waived claims for

withholding of removal and protection under CAT by failing to

address them in his brief).

Assuming such claims were not waived, our conclusion that

the BIA and the IJ's determinations were supported by substantial

evidence is fatal. This is because a petitioner bears a heavier

burden of proof in an application for withholding of removal or

protection pursuant to CAT than he does in an application for

asylum. Lumaj, 446 F.3d at 198 (a request for withholding of

removal "cannot succeed when an asylum claim fails"); Settenda v.

Ashcroft, 377 F.3d 89, 94 (1st Cir. 2004) ("[A] CAT claim . . .

establishes a higher burden of proof than an asylum claim . . .

."). Because the petitioners did not meet their burden to show

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eligibility for asylum, it inevitably follows that their requests

for withholding of removal and protection under CAT must fail.

III. CONCLUSION

The BIA and the IJ's denial of the petitioners'

application for asylum was supported by substantial evidence in the

record, including evidence of a fundamental change in Albania such

that the petitioners do not have a well-founded fear of future

persecution. Because nothing in the record compels us to reach a

contrary conclusion, we affirm the BIA and the IJ's denial of the

asylum claim. As the petitioners failed to show they are eligible

for asylum, they are similarly ineligible for withholding of

removal and protection under CAT.

We, therefore, deny the petition for review and affirm

the final order of removal.

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