PRECETAJ v. Holder

United States Court of Appeals
For the First Circuit

No. 10-1109

MARK and NILDA PRECETAJ,

Petitioners,

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF

THE BOARD OF IMMIGRATION APPEALS

Before

Lynch, Chief Judge,

Boudin and Thompson, Circuit Judges.

Jeffrey B. Rubin with whom Law Offices of Jeffrey B. Rubin,
P.C. was on brief for petitioners.
Andrea N. Gevas, Civil Division, Department of Justice, with
whom Tony West, Assistant Attorney General, David M. McConnell,
Deputy Director, and Stacy S. Paddack, Senior Litigation Counsel,
were on brief for respondent.

August 11, 2011
 BOUDIN, Circuit Judge. Mark and Nilda Precetaj--husband

and wife--are citizens of Albania and seek review of administrative

decisions denying their application for asylum and ordering their

removal. Nilda Precetaj entered the United States on May 5, 2002,

on a temporary tourist visa that expired on November 4, 2002. Mark

Precetaj entered the United States on July 26, 2002, using a false

Italian passport.

In January 2003, Mark Precetaj filed an application for

asylum and withholding of removal that listed Nilda Precetaj as a

derivative beneficiary. Later, Nilda Precetaj applied for asylum,

withholding of removal, and protection under the United Nations

Convention Against Torture. See 8 C.F.R. §§ 1208.16-18 (2011). A

series of hearings were held between 2005 and 2008, and Mark

Precetaj provided evidence of the family's experience in Albania in

the 1990s and up to 2002.

Albania is a former communist country in the Balkans

whose dictatorial regime collapsed in the early 1990s; the collapse

was followed by a long period of economic crisis and political

upheaval. In the late 1990s, the situation began to stabilize and

today the country has a democratic constitution and holds regular

elections.

In the past decade or so, the Socialist Party and the

Democratic Party have dominated politics in Albania. After a

reconciliation in 1997, new elections were held and the Socialist

-2-
Party established control through a coalition. Then, in 2005, the

Democratic Party leader became Prime Minister after his party won

new elections held with what the State Department Asylum Profile

called "a noticeably improved environment with little of the

violence or intimidation that marred previous elections."

The experiences to which Mark Precetaj testified began

over a decade before this 2005 election. After reporting the

presence of state agents at a student Democratic Party

demonstration in 1991, Mark Precetaj suffered threats and physical

assaults. He attributed this in part to his support for the party-

-he was not a member of it--but also to fear that he might reveal

crimes by Socialist Party members then in power that he learned of

through his employment at the Albanian Supreme Court.

Initially, Mark Precetaj was merely threatened in

telephone calls and told to keep his mouth shut. Thereafter, he

was threatened and then beaten in 1993 by three men wearing masks.

Although badly bruised, he did not report the incident to the

police, knowing that they were infiltrated by Socialist Party

members. In June 1997, he was threatened outside his home and told

to expect retribution when the Socialist Party won the election,

which it did.

In 1998, on the fifth anniversary of his beating, his car

was set on fire in front of his home. In 1999, both of his

children were targeted; his son was kidnaped once and beaten twice,

-3-
and his daughter was kidnaped and held for three days, during which

time she was assaulted and raped. After his daughter's abduction,

state security agents beat up Mark Precetaj again. With his

encouragement, his children fled to the United States and have

since been granted asylum.

In June 2001, Mark Precetaj was attacked and beaten by a

man who repeated the same threats. When he reported this to the

Democratic Party, he received another telephonic threat. In May

2002, he received a further telephone call to look outside for a

present; doing so, he found at the door an envelope containing two

bullets. His wife then fled to the United States; lacking a visa,

he stayed behind but joined her later.

At the end of a series of hearings, the Immigration Judge

("IJ") on July 7, 2008, delivered an oral decision denying Mark and

Nilda Precetaj relief. The IJ said that Mark Precetaj's testimony

was credible and internally consistent, but described the incidents

only in general terms: the IJ said that Mark Precetaj was "beaten

on at least two occasions" and pointed out that he did not seek

medical treatment or report the incidents to the police. The IJ

also noted that (as of 2008) the Democratic Party had regained

power in Albania.

There follow two sentences of analysis that comprise the

heart of the decision:

[T]he Court will and hereby does deny his
application for asylum as the harm suffered by

-4-
 the respondent himself does not, in the
Court's opinion, rise to the level of past
persecution. Even if the Court were to find
otherwise, alternatively, the Court finds that
circumstances in Albania have changed to the
extent that the respondent would no longer
have a well-founded fear of future persecution
due to the fact that Democratic party is now
the party in power in the country of Albania.

The IJ then said that any request for withholding of

removal also failed because this relief requires an even higher

probability of future persecution than the asylum standard; and any

claim under the Convention Against Torture also failed, there being

no evidence that Mark Precetaj would be tortured. In the hearings

the IJ had taken note of an alternative form of relief available

even where future persecution is not a threat--discretionary

"humanitarian asylum" based on past persecution alone--but this was

not separately discussed in the IJ's decision.

On review, the Board of Immigration Appeals ("the Board")

affirmed. It upheld the finding of no past persecution summarily;

alternatively, it said any presumption of future persecution had

been rebutted by "a fundamental change in circumstances" in

Albania, 8 C.F.R. § 1208.13(b)(1)(i)(A). As for humanitarian

relief based on past persecution alone, the Board said Mark

Precetaj's treatment did not rise to the required level for such

discretionary relief.

On our review of a "final order of removal," Immigration

and Nationality Act ("INA") § 242(a)(1), 8 U.S.C. § 1252(a)(1)

-5-
(2006), the findings of fact by the IJ are "conclusive unless any

reasonable adjudicator would be compelled to conclude to the

contrary," INA § 242(b)(4)(B); questions of law are subject to de

novo review, McNary v. Haitian Refugee Ctr. Inc., 498 U.S. 479,

493 (1991). The substantive criteria and bases for relief are

contained in the INA and accompanying regulations.

Pertinently, asylum normally depends on a reasonable fear

of future persecution by the government (directly or because of

inaction), Orelien v. Gonzales, 467 F.3d 67, 72 (1st Cir. 2006),

due to one of a set of enumerated grounds such as political

opinion. INA § 101(a)(42); 8 C.F.R. § 1208.13(b)(2)(i)(A).

Usually, although not invariably, this is based on past persecution

because, where an applicant establishes past persecution, a

rebuttable presumption arises of a well-founded fear of future

persecution, 8 C.F.R. § 1208.13(b)(1). In turn, the government may

rebut the presumption with a showing of a fundamental change in

circumstances in the country or the opportunity to relocate safely

within it, 8 C.F.R. § 1208.13(b)(1)(i).

Where the presumption is rebutted, then absent other

evidence from the applicant, asylum must be denied, 8 C.F.R. §

1208.13(b)(1)(i), unless the applicant demonstrates severe past

persecution (or establishes a "reasonable possibility" of "other

serious harm"); if such severe persecution is established, the

immigration judge has discretion to grant asylum, 8 C.F.R. §

-6-
1208.13(b)(1)(iii)--such relief sometimes being known as

"humanitarian asylum," In re Chen, 20 I. & N. Dec. 16, 21 (BIA

1989).

In ordinary asylum cases, often the central issue turns

on whether the applicant's story of past abuse is to be believed,

and the IJ and the Board have considerable latitude in evaluating

credibility. A negative assessment gets substantial weight in this

circuit when backed by explanation including demeanor evidence,

inconsistencies, improbabilities, or failure to produce confirming

evidence that ought to be available.1 However, in this case Mark

Precetaj's testimony was accepted as true by the IJ.

"Persecution," even linked to the government and based on

a listed ground (both conditions implicitly accepted as satisfied

by the IJ here), entails something more than the casual or

occasional mistreatment that is common in many countries. "[A]

person's experience must rise above unpleasantness, harassment, and

even basic suffering," Nelson v. INS, 232 F.3d 258, 263 (1st Cir.

2000); much depends on the "severity, duration, and frequency of

1
See Sunoto v. Gonzales, 504 F.3d 56, 59-61 (1st Cir. 2007);
Shahari v. Gonzáles, 407 F.3d 467, 474-75 (1st Cir. 2005); Disu v.
Ashcroft, 338 F.3d 13, 17-18 (1st Cir. 2003); Bojorques-Villanueva
v. INS, 194 F.3d 14 (1st Cir. 1999). Cf. Sok v. Mukasey, 526 F.3d
48, 55-56 (1st Cir. 2008).

-7-
physical abuse." Topalli v. Gonzales, 417 F.3d 128, 133 (1st Cir.

2005).2

However, in this case, the IJ and the Board have not

given a persuasive explanation for rejecting the claim of past

persecution. Standing alone, the incidents of threats and violence

directed against Mark Precetaj are substantial and continued over

almost a decade; and they were arguably based on interrelated

motives: his support for the political opposition and the

derivative concern of those in power that he would reveal

information about abuses that he had garnered through his work.

True, Mark Precetaj was never jailed, none of the

violence sent him to a hospital, and if this were all we could not

casually reject the agency judgment. The case would fall within

that gray area of sporadic and limited abuse which is the lot of

many persons around the world but is not the exceptional and

sustained violence or other forms of persecution that compel the

agency to grant asylum.

But the systematic and serious abuse of the children adds

another dimension. Two kidnapings, three beatings, and an

aggravated rape of his children--specifically designed to send a

message to Mark Precetaj--were clearly part of the persecution of

2
The Board has often rejected persecution claims, and been
upheld, where only a single incident, often of a severe beating or
mistreatment, has occurred. E.g., Decky v. Holder, 587 F.3d 104,
111-12 (1st Cir. 2009); Khan v. Mukasey, 549 F.3d 573, 576-77 (1st
Cir. 2008); Guzman v. INS, 327 F.3d 11, 15-16 (1st Cir. 2003).

-8-
him. Sok v. Mukasey, 526 F.3d 48, 54-55 (1st Cir. 2008); Jorgi v.

Mukasey, 514 F.3d 53, 57 & n.3 (1st Cir. 2008). Only the IJ

mentions these further abuses, and only does so briefly ("[Mark

Precetaj] described incidents in which both of his children were

subjected to past persecution . . . .").

If there is a reason for discounting or ignoring these

incidents, it is not explained in either decision. And if they are

taken into account, it is not apparent why the sum total of the

abuse directed against Mark Precetaj would not qualify as

persecution. The discrepancy is underscored by the fact that the

persecuted family members were themselves granted asylum. Ticoalu

v. Gonzáles, 472 F.3d 8, 11-12 (1st Cir. 2006). Cf. Cendrawasih v.

Holder, 571 F.3d 128, 130 (1st Cir. 2009). On this issue a remand

is required.

The alternative ground given by both the IJ and Board is

more powerful. Notwithstanding past persecution, changed country

conditions make unreasonable any legitimate fear of future

persecution. The 2007 Country Report and the 2006 Asylum Profile

confirm a decreasing level of violence following the 1998 elections

and steadily improving since then, culminating in the 2005 victory

of the Democratic Party. Neither the IJ nor Board discussed these

changes in detail, but the two documents are part of the record and

provide pertinent evidence.

-9-
 However, "changed country conditions do not automatically

trump the applicant's specific evidence" in every case, Waweru v.

Gonzales, 437 F.3d 199, 203 (1st Cir. 2006) (internal quotation

omitted); accord Mihaylov v. Ashcroft, 379 F.3d 15, 23 (1st Cir.

2004). Here, as Mark Precetaj points out in his brief, there is

evidence that local power is still wielded by the Socialist Party;

and, logically those who feared disclosures by him have as much or

even more reason to fear disclosures of their past wrongs now that

the Democratic Party is in power. In its brief on appeal, the

government is silent as to this continuing threat.

Such a specific and colorable threat is based on a motive

for and conditions facilitating further persecution despite the

2005 takeover of the central government by the Democratic Party;

and it distinguishes cases in which the 2005 elections or a general

improvement in conditions were found adequate to refute the

likelihood of further persecution. E.g., Uruci v. Holder, 558 F.3d

14, 17 (1st Cir. 2009); Tota v. Gonzales, 457 F.3d 161, 166-67 (1st

Cir. 2006). In many cases, these changes may be enough to refute

the presumption but not necessarily in all.

Indeed, in Waweru we agreed that retention of local power

by former persecutors could favor the asylum seeker's claim and

make a simple change in central government insufficient to rebut

the presumption. 437 F.3d at 204. The claim faltered there

because the motive for past persecution--the applicant's opposition

-10-
to a one party state--had itself disappeared with the disappearance

of the party and the loss of any power by its erstwhile leader.

Id. Here, the motive for persecution of Mark Precetaj by local

officials may well remain intact.

There remains Mark Precetaj's alternative claim that

humanitarian asylum was justified--the fall-back category described

above. In Waweru, we said that this "humanitarian asylum" is

granted only in cases of "extraordinary suffering" and that

"arbitrary arrests and beatings" do not suffice. 437 F.3d at 205

(internal quotations omitted), accord Tokarska v. INS, 978 F.2d 1,

1 (1st Cir. 1992) (per curiam)("[A]n alien must show past

persecution so severe that repatriation would be inhumane."

(internal quotations omitted)).

Humanitarian asylum is available even if there is no risk

of future persecution, but the paradigm case is one in which so

much abuse has been directed against the victim that the suffering

is projected into the future and that a return of the applicant to

the place where the harm was inflicted would magnify the prior

suffering. E.g., Brucaj v. Ashcroft, 381 F.3d 602, 604 (7th Cir.

2004) (applicant brutally gang-raped in front of her parents).3

This limited discussion is sufficient for our purposes, because on

3
Accord, Sowe v. Mukasey, 538 F.3d 1281, 1287 (9th Cir. 2008);
Lal v. INS, 255 F.3d 998, 1009-10 (9th Cir. 2001); Lopez-Galarza v.
INS, 99 F.3d 954, 963 (9th Cir. 1996); Rodriguez-Matamaros v. INS,
86 F.3d 158, 160-61 (9th Cir. 1996).

-11-
these particular facts the claim plainly fails: Mark Precetaj's

simple statement that he continues to suffer hardly establishes the

necessary level of suffering.

Mark Precetaj asserts that the IJ and Board failed even

to address his claim for humanitarian asylum, but the IJ discussed

the issue in the hearing and the Board explicitly rejected the

claim. Absent a prima facie case of "extraordinary suffering" and

some reasonable prospect of a grant, it can hardly be expected that

every case should entail a detailed discussion of a last-resort

form of relief that is difficult to obtain and rarely granted. See

generally Ang v. Gonzales, 430 F.3d 50, 58 (1st Cir. 2005).

The order of the Board affirming the IJ decision is

vacated and the matter is remanded for proceedings on the past

persecution and changed country conditions issues consistent with

this decision.

It is so ordered.

-12-