United States Court of Appeals
For the First Circuit
No. 06-1338
VIOLETA ALIBEAJ,
Petitioner,
v.
ALBERTO GONZALES, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lipez, Circuit Judge,
Cyr, Senior Circuit Judge,
and Singal,* District Judge.
Carlos E. Estrada, on brief for petitioner.
Peter D. Keisler, Assistant Attorney General, Greg D. Mack,
Senior Litigation Counsel, and Patricia M. Bowman, Attorney, Tax
Division, U.S. Department of Justice, on brief for respondent.
November 22, 2006
*
Of the District of Maine, sitting by designation.
CYR, Senior Circuit Judge. Violeta Alibeaj petitions
for review of a decision by the Board of Immigration Appeals
("BIA") which affirmed an immigration judge’s denial of her asylum
application. We deny the petition.
I
BACKGROUND
In February 2001, Alibeaj, a native and citizen of
Albania, entered the United States illegally. During her removal
proceedings, Alibeaj submitted an application for asylum, claiming
that the Albanian Communist and Socialist Parties had persecuted
her and her family for the last fifty-eight years, as follows: In
1943, the communist government arrested and executed her
grandfather and an uncle, both leaders of the anti-communist
National Party. During the 1980s, the government arrested and
tortured her future husband and a brother-in-law. In 1990, Alibeaj
attended a pro-democracy demonstration in the capital city of
Tirana, at which anti-riot police struck her in the head. In 1991,
following the fall of the communist regime in Albania and a
transfer of governmental power to the Democratic Party, Alibeaj
joined a support group for persons who had been victims of
political persecution by the communist government.
In 1997, the Socialist Party, which included many former
communists, won the national election and regained control of the
government. When Alibeaj went into labor with her first child that
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year, the hospital did not dispatch an ambulance to her home, and
refused to attend to her medical needs or treat her pain during
sixteen hours of labor. Consequently, her baby was born with
serious mental defects. Alibeaj contends that her government-
appointed gynecologist – the daughter of a political opponent of
her husband’s family whose father had raped Alibeaj’s mother-in-law
– was the instigator of this denial of adequate medical treatment.
Thereafter, Alibeaj sought medical assistance for her ailing son,
but was refused treatment when she informed the doctors and
hospitals that she was a supporter of the Democratic Party.
Alibeaj traveled to Italy for two years to obtain medical treatment
for her son, while her husband remained in Albania. Alibeaj’s son
subsequently died of birth defects while in Italy.
In 1997, members of SHIK, the Albanian secret police
organization, arrested and tortured Alibeaj’s sister-in-law after
she wrote a history of Alibeaj’s husband’s family, which was
critical of the former communist regime’s repressive tactics
against its political opponents. When the sister-in-law was
released after five days, she was so psychologically shell-shocked
that she was unable to speak. Eventually, she emigrated to Italy,
where she committed suicide. The government unsuccessfully
continued its search for copies of the sister-in-law’s book, at
Alibeaj’s residence and elsewhere.
In 2000, following two years in Italy, Alibeaj returned
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to Albania, whereupon SHIK agents stalked Alibeaj and threatened to
kill her and her family if they did not leave Albania. On one
occasion, SHIK agents physically assaulted her husband and stole
all of his construction tools, thereby depriving him of his
livelihood. Thereafter, Alibeaj left Albania for the United
States.
In September 2004, an immigration judge ("IJ") orally
rejected her asylum application, stating as follows:
I’m going to deny the application [for
asylum] because I’m just not seeing any
connection here between any of the five
enumerated grounds in what she’s related. And
I’m not sure that what she’s related amounts
to past persecution to her. And I don’t see
that she has a well-founded fear of future
persecution on account of any of the five
enumerated grounds if she returns to Albania.
Alibeaj filed a timely appeal of the IJ’s decision to the
BIA. The BIA adopted and affirmed, thus signifying that its
“conclusions upon review of the record coincide with those which
the [IJ] articulated in his or her decision.” The BIA added:
We agree with the [IJ] that the
respondent failed to establish that she
suffered persecution. Despite the regrettable
actions that have befallen the respondent and
her family, we cannot find that the incidents
described rise to the severity to constitute
persecution. We further are unable to find
that the respondent has a well-founded fear of
persecution if she returns to Albania. We
cannot identify any particular factors that
would cause us to conclude that the
respondent’s fear of persecution on account of
an enumerated ground is well–founded based on
current political conditions in Albania. In
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addition, an asylum applicant does not have a
well-founded fear of persecution if the
applicant could avoid persecution by
relocating to another part of the applicant’s
country of nationality or, if stateless,
another part of the applicant’s country of
last habitual residence, if under all the
circumstances, it would be reasonable to
expect the applicant to do so. The respondent
has not established that internal relocation
is not a viable option. The decision of the
[IJ] is also affirmed for the reasons provided
herein.
Alibeaj petitions for review of the BIA decision.
II
DISCUSSION
Alibeaj contends that the IJ’s and BIA’s finding that she
did not suffer past persecution in Albania was not supported by the
evidence, which showed serious political retribution by the
communists and socialists in the form of executions, torture,
beatings, death threats, and denials of essential medical care.
Eligibility for asylum requires that the alien prove her
status as a “refugee,” 8 U.S.C. § 1158(b)(1)(A), (b)(1)(B)(i); see
Mehilli v. Gonzales, 433 F.3d 86, 90 n.5 (1st Cir. 2005), in that
she suffered past persecution or has a well-founded fear of future
persecution based on race, religion, nationality, membership in a
particular social group, or political opinion if she were to return
to her country of nationality, see id. (citing § 1101(a)(42)(A)).
The Alibeaj asylum claim alleges persecution on account of
“political opinion.” If the alien cannot meet her burden to
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establish past persecution, she will be entitled to asylum only if
she can establish that she harbors a fear of future persecution
that is both subjectively genuine and objectively reasonable. See
Palma-Mazaiegos v. Gonzales, 428 F.3d 30, 34-35 (1st Cir. 2005).
Should the alien meet her burden of establishing past
persecution, however, a presumption arises that her fear of future
persecution is well-founded. See Bollanos v. Gonzales, 461 F.3d
82, 85 (1st Cir. 2006). In order to rebut that presumption, the
government must demonstrate by a preponderance of the evidence that
(i) the country of origin has experienced a “fundamental change in
circumstances” since the alien’s departure which obviates her
previously well-founded fear of persecution, or (ii) the alien
reasonably could avoid future persecution by relocating to another
part of the country. 8 C.F.R. § 208.13(b)(1)(i). We review the
IJ’s and the BIA’s findings under the “substantial evidence”
standard, and will reverse only if we conclude that the record
evidence would compel a contrary finding. See Dhima v. Gonzales,
416 F.3d 92, 95 (1st Cir. 2005); see also Berrio-Barrera v.
Gonzales, 460 F.3d 163, 167 (1st Cir. 2006) (noting that whether
applicant has proved that persecution was motivated by one of the
five statutorily protected grounds is a question of fact).
A. "Past Persecution"
“[E]stablishing past persecution in a daunting task,” and
Alibeaj “bears a heavy burden.” Guzman v. INS, 327 F.3d 11, 15
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(1st Cir. 2003). Although her experiences of political
discrimination in Albania certainly are regrettable, Alibeaj cannot
surmount the deferential standard of review. First, for purposes
of establishing the right to asylum, the discriminatory experiences
must have reached a fairly high threshold of seriousness, as well
as some regularity and frequency. See Susanto v. Gonzales, 439
F.3d 57, 59-60 (1st Cir. 2006) (noting that “[t]he baseline rule is
that past persecution requires ‘more than mere discomfiture,
unpleasantness, harassment, or unfair treatment’” (citation
omitted)). The more serious episodes of anti-communist persecution
against the Alibeaj family and her husband’s family occurred either
in the remote past (e.g., the 1943 execution of her grandfather and
uncle), or predated the fall of the communist regime in 1992 (e.g.,
the arrest and torture of her future husband). Similarly, although
the police beat Alibeaj during a pro-democracy demonstration in
1990, this occurred prior to the fall of the communist regime, and
Alibeaj never testified to any permanent or serious physical
injuries. See id. at 60 (noting that asylum applicant failed to
prove “persecution” when “no physical confinement and no serious
physical injuries resulted”).
Moreover, the post-1992 incidences were too sporadic or
causally tenuous to compel the IJ to find politically-motivated
persecution. Although Alibeaj suspected that her gynecologist
sabotaged her 1997 delivery, she herself noted also that the
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hospital staff neglected her need for pain medication because they
were watching the television reports regarding Princess Diana’s
death. See Toloza-Jimenez v. Gonzales, 457 F.3d 155, 160 (1st Cir.
2005) (observing that an asylum applicant has the burden to show
the “causal connection between her experiences and . . . the
statutory grounds for persecution”). Similarly, Alibeaj noted
that the medical personnel at other facilities subsequently refused
to treat her newborn son’s condition, yet she failed to provide any
specific facts from which the IJ might evaluate whether Alibeaj
made a reasonably exhaustive search for medical treatment prior to
leaving for Italy. Absent evidence to the contrary, it would seem
entirely reasonable that some physicians in Albania support the
Democratic Party. Thus, if Alibeaj experienced but a couple of
politically-motivated refusals of medical treatment before she
abandoned her efforts, this limited impediment might not suffice
alone to establish “persecution.”
Although the 1997 arrest and torture of Alibeaj’s sister-
in-law arguably shows that the sister-in-law was persecuted,
Socialist Party sympathizers targeted the sister-in-law for a
reason that does not pertain to Alibeaj: she wrote and threatened
to publish a "tell-all" book critical of the former communist
regime. Alibeaj acknowledges that she has never been a member of
the Democratic Party, nor taken any concrete political actions
comparable to those of her sister-in-law which unduly might
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antagonize Communist or Socialist Party sympathizers.
The nature of the death threats, beating, and
misappropriation of property that Alibeaj and her husband suffered
upon her return from Italy in 2000 is also plainly insufficient to
compel a finding of persecution. The allegations are serious
indeed, but police misdeeds even more egregious or sustained have
failed to clear the persecution hurdle. See, e.g., Susanto, 439
F.3d at 59-60 (observing that even physical abuse does not
necessarily prove persecution, and collecting cases); Zui v.
Gonzales, 412 F.3d 202, 204-05 (1st Cir. 2005) (same, concerning
threats to life or health).
B. Changed Circumstances
Even if we were to conclude that the IJ and BIA erred in
finding that the experiences described by Alibeaj did not rise to
the level of past “persecution,” and that Alibeaj therefore met her
burden to establish past persecution, the government had the
opportunity to rebut the presumption of a well-founded fear of
future persecution by proving by a preponderance of the evidence
that the circumstances in Albania had changed so fundamentally
since Alibeaj left in 2001 as to obviate her otherwise well-founded
fear of future persecution. See 8 C.F.R. § 208.13(b)(1)(i).
Indeed, the BIA specifically held that the government had met its
burden, stating that it could not “identify any particular factors
that would cause us to conclude that the respondent’s fear of
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persecution on account of an enumerated ground is well–founded
based on current political conditions in Albania.” (Emphasis
added.) The record amply supports this factual finding.
The agency adduced the 2003 United States State
Department Country Report on Human Rights Practices for Albania
(dated 2/25/04), which discloses that the climate for political
oppositionists in Albania has fundamentally improved since 2001.
See Tota v. Gonzales, 457 F.3d 161, 166 (1st Cir. 2006) (“[W]here
a [State Department] report demonstrates fundamental changes in the
specific circumstances that form the basis of a petitioner's
presumptive fear of future persecution, it ‘may be sufficient, in
and of itself,’ to rebut that presumption.”); Palma-Mazariegos, 428
F.3d at 36 (noting that State Department reports are “generally
probative of country conditions”). For example, Albania held
multi-party parliamentary elections in 2003 under a reformed
electoral code with almost no reported incidences of the type of
politically-motivated violence that had plagued its earlier post-
communist elections. The Socialist Party failed to win a majority,
and was forced to form a coalition government with two other minor
parties, with the Democratic Party as the second largest vote-
getter sitting in opposition. In 2003, there were no reports of
politically-motivated killings, disappearances, or detainees held
strictly for political reasons, and Albania ratified the Convention
Against Torture.
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Alibeaj cites only one report that police used excessive
force: at a May 2003 rally in Tirana of former political prisoners
seeking government compensation for their enforced hard labor under
the former communist regime. However, this isolated reference
would not compel the IJ’s factfinding, given that (i) Alibeaj has
never contended that she wished or intends to petition the
government for redress, and/or that she is even eligible for such
compensation; and (ii) the Report simultaneously states that the
Albanian government condemned this police malfeasance and took
immediate legislative steps to prevent its recurrence.
Thus, the BIA’s conclusion that the political
circumstances in Albania have changed fundamentally in Albania over
the past six years is entirely consistent with its recent
precedent. See Bollanos v. Gonzales, 461 F.3d 82, 86 (1st Cir.
2006) (noting significance of changed circumstances in Albania and
remedial measures taken by new government in 2003 to reduce police
misconduct); Tota, 457 F.3d at 167 (observing that “‘[t]hough
serious political repression existed in the past, there are no
indications of systemic political persecution in Albania at the
present time’”); cf. Susanto, 439 F.3d at 60-61 (observing that
Indonesian government “has taken serious remedial measures” in
response to intense international condemnation of 1998 anti-Chinese
riots); Nikijuluw v. Gonzales, 427 F.3d 115, 122 (1st Cir. 2005)
(citing a State Department Country Report’s observation of a
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significant decline in violence against Christians in Indonesia).1
As the agency record does not compel a finding that
Alibeaj would suffer politically-motivated persecution if removed
to Albania, the BIA decision must stand.
The petition for review is denied.
1
In her petition for review, Alibeaj does not challenge the
alternative BIA holding that she failed to prove that she could not
reasonably have located to another part of Albania to avoid future
persecution, and therefore, we neither review nor comment on that
aspect of its holding.
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