Not for Publication in West's Federal Reporter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. 04-1438
MIHALLAQ ZIU, ET AL.,
Petitioners,
v.
ALBERTO GONZALES, Attorney General,
Respondent.*
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Lipez, and Howard, Circuit Judges.
Daniel F. Cashman, Cashman & Lovely, P.C., and Susanna L.
Shafer, on brief, for petitioners.
Peter D. Keisler, Assistant Attorney General, Civil Division,
Emily Anne Radford, Assistant Director, and Keith I Bernstein,
Attorney, Department of Justice, Civil Division, Office of
Immigration Litigation, on brief for respondent.
June 3, 2005
*
Alberto Gonzales was sworn in as United States Attorney
General on February 3, 2005. We have therefore substituted Attorney
General Gonzales for John Ashcroft as the respondent. See Fed. R.
Civ. P. 25(d)(1); Fed. R. App. P. 43(c)(2).
Per Curiam. Petitioner Mihallaq Ziu asks us to review
the decision of the Board of Immigration Appeals ("BIA") summarily
affirming the immigration court's rejection of his application for
asylum and withholding of deportation.1 Petitioner, a citizen of
Albania, sought relief on the ground that he was persecuted by the
Socialists on the basis of his political opinion.
We recite the facts in accord with petitioner's testimony
because the immigration judge ("IJ") found him largely to be
credible. Petitioner is an anti-communist supporter of Albania's
Democratic Party. He worked as a teacher/principal in Albania's
school system from 1973 until April 22, 2001. Petitioner testified
that his persecution began in 1991, after he ordered the removal of
a portrait of former dictator Enver Hoxha from the school where he
taught. As a consequence, he was threatened at gunpoint, his
students were beaten, and he was compelled to close the school for
a week. Petitioner conceded that there was general unrest in
Albania during this period, and that many schools were forced to
close.
From 1992 to 1997, Petitioner suffered no difficulties,
as the Democratic Party which he supported was in power.
Petitioner testified that "life was great," and he obtained a
favorable teaching position through the aid of a member of
1
Co-petitioner Vasilika Ziu is Petitioner's spouse, and her
claim is derivative of his.
parliament. His troubles returned in 1997, however, when the
Socialists returned to power.
Petitioner stated that, in April 1997, his teenage
daughter was threatened on her way to school by unknown armed and
masked men who said they would make her a "prostitute." They also
called petitioner at his home and told him (falsely) that his
daughter had been in an accident. Fearing that his daughter would
be abducted, petitioner kept her home from school for a month and
then started walking her to school himself. Petitioner testified
that he later sent her to America to attend college to make sure
that she would be safe. In 1998, petitioner formally joined the
Democratic Party and allowed the Democratic Party's local youth
groups to meet at his home in May and June. As a consequence of
these meetings, his home was searched and his son was arrested in
October 1999. Petitioner asserts that his son was held overnight
and beaten for "no reason," as no charges were ever filed.
In September 2000, petitioner was taunted by Socialist
supporters for his party membership and beaten when he assisted in
the local election. Although he did not require medical care after
this attack, he reported it to Democratic Party officials (but not
the police). In November 2000, petitioner was warned that he would
be fired from his job if he did not cease his political activities.
He refused to comply, but no adverse employment action was taken.
In February 2001, he was beaten by masked men on his return from a
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Democratic Party meeting. As before, he did not require medical
care and reported the incident only to party officials. Two months
later, after experiencing additional telephonic threats, petitioner
left Albania. When petitioner overstayed his visitor's visa in the
United States, he was placed in removal proceedings and sought
asylum and withholding of removal.
The IJ held that petitioner had failed to meet his burden
of establishing past persecution or a reasonable fear of future
persecution. The IJ concluded that petitioner had failed to
establish that the threats to his daughter and the arrest of his
son were due to petitioner's political activities, and that the few
incidents that were directed against petitioner based upon his
politics did not amount to persecution. The IJ found significant
evidence that petitioner regularly traveled abroad, with at least
one trip taking place shortly after one alleged attack, but that he
always returned. The IJ concluded that petitioner's motivation for
coming to the United States was for a better economic life.
Because the BIA summarily affirmed the IJ's decision, we
review the IJ's decision directly. See Katebi v. Ashcroft, 396
F.3d 463, 465-66 (1st Cir. 2005). We review the IJ's decision
under a deferential "substantial evidence" standard, and "[t]he
[IJ's] decision will be upheld if supported by reasonable,
substantial, and probative evidence on the record considered as a
whole." Carcamo-Recinos v. Ashcroft, 389 F.3d 253, 256 (1st Cir.
-4-
2004) (internal citation and quotation omitted). "To reverse the
[IJ's] finding we must find that the evidence not only supports
that conclusion, but compels it . . . ." INS v. Elias-Zacarias,
502 U.S. 478, 481 n. 1 (1992) (emphases in original); see also
Albathani v. INS, 318 F.3d 365, 372 (1st Cir. 2003) ("Merely
identifying alternative findings that could be supported by
substantial evidence is insufficient to supplant the BIA's
findings.") However, questions of law are reviewed de novo.
Romilus v. Ashcroft, 385 F.3d 1, 5 (1st Cir. 2004).
"The alien bears the burden of establishing eligibility
for asylum by showing that he qualifies as a refugee." Id. at 6.
The term "refugee" means (A) any person who is
outside any country of such person's
nationality . . . and who is unable or
unwilling to return to, and is unable or
unwilling to avail himself or herself of the
protection of, 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). An alien can show that he is entitled
to asylum in two ways: (1) establishing past persecution, which
creates a rebuttable presumption of a well-founded fear of
persecution, or (2) establishing a well-founded fear of future
persecution. Carcamo-Recinos, 389 F.3d at 257.
"To prove past persecution, an applicant must provide
'conclusive evidence' that he has suffered persecution on one of
the five protected grounds: race, religion, nationality, membership
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in a particular social group, or political opinion." Romilus, 385
F.3d at 6. "To qualify as persecution, a person's experience must
rise above unpleasantness, harassment, and even basic suffering."
Nelson v. INS, 232 F.3d 258, 263 (1st Cir. 2000). We have
described establishing past persecution as "a daunting task." See
Diab v. Ashcroft, 397 F.3d 35, 39 (1st Cir. 2005) (internal
citation and quotation omitted).
Petitioner raises the following challenges to the IJ's
decision: (1) the IJ erred in failing to consider his evidence of
past persecution in the aggregate (despite her conclusion that his
testimony was credible); (2) the IJ erred in concluding that he was
not entitled to a presumption of a well-founded fear of future
persecution; and (3) the BIA violated its regulations by utilizing
its summary affirmance procedure on an IJ opinion that was clearly
erroneous. Because the success of petitioner's second and third
argument depend on our accepting the first, our rejection of the
first (which we explain below) disposes of all three.
Petitioner begins by positing that there was sufficient
record evidence to support the conclusion that threats to his
daughter and the arrest of his son were attempts by the Socialists
to force petitioner to give up his support for the Democratic
Party. This may be true, but it is not enough to prevail; that the
record could support an alternate inference from the one drawn by
the IJ does not warrant overturning the IJ's decision. See
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Albathani, 318 F.3d at 372. Rather, as set forth above, the record
must compel the conclusion that petitioner advances for us to upset
the IJ's finding. See Elias-Zacarias, 502 U.S. at 481 n. 1.
Here, the primary evidence of a link between the
incidents and petitioner's politics was petitioner's testimony that
he believed that the threats and arrest were orchestrated by the
Socialists to discourage his political activities. But the IJ was
free to reject such speculation as to motive, see generally Khalil
v. Ashcroft, 337 F.3d 50, 55 (1st Cir. 2003), even while generally
finding petitioner credible as to historical facts, see Carcamo-
Recinos, 389 F.3d at 258-59. As to the incident involving
petitioner's son, the IJ was persuaded that the year and a half
that separated the arrest from the political meetings undermined
any inference of a link. Further, petitioner admitted that the
allegedly arbitrary arrest actually was based on suspicion that
petitioner's son was involved in a local burglary and stated in his
asylum application that the police may have been looking for a
cache of hidden arms. As to the incidents involving petitioner's
daughter, two factors led the IJ to conclude that petitioner's
political opinion played no causative role. First, trafficking in
young women and girls is regrettably widespread in Albania.
Second, the harassment stopped when petitioner began walking his
daughter to school. In the IJ's view, the harassment likely would
have continued if petitioner had been the true target of the
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unknown assailants. These inferences are not unreasonable and
therefore were within the discretion conferred upon the IJ by the
substantial evidence standard.
The remaining incidents -- two episodes of physical abuse
not requiring hospitalization, a police search, and various threats
–- do not amount to persecution under our case law. See, e.g.,
Nelson, 232 F.3d at 264 (three brief detentions coupled with
physical abuse, along with threats and surveillance, not
sufficient). Moreover, there is considerable evidence that
petitioner's true motive for coming to the United States was
economic, as the IJ found. First, petitioner obtained exit visas
and traveled abroad during the period that he was allegedly being
persecuted, but he never sought asylum in the countries that he
visited. Second, the incomes of petitioner and his spouse are
considerably higher here than in Albania. Third, Petitioner
stated, in response to a question why he was not politically active
in the United States, that "Here, I've come to relax, to work, to
find . . . work for myself and my family." In sum, substantial
evidence supports the IJ's decision to reject petitioner's
applications for asylum and withholding of removal.2
2
Petitioner's withholding of removal claim is doomed by our
rejection of his asylum claim. See Romilus, 385 F.3d at 8 (failure
to satisfy the more lenient asylum standard necessarily means that
the higher withholding of removal standard cannot be met).
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For the reasons stated above, the petition is denied.
So ordered.
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