Halo v. Gonzales

United States Court of Appeals
For the First Circuit

No. 05-1076

ALTIN HALO; ESMERALDA HYSENAJ,

Petitioners,

v.

ALBERTO GONZALES,
Attorney General of the United States,

Respondent.

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

Before
Selya, Lynch and Lipez, Circuit Judges.

Charles Christophe and Christophe & Associates, P.C., on brief
for petitioners.
William J. Schneider, Assistant United States Attorney, and
Paula D. Silsby, United States Attorney, on brief for respondent.

August 17, 2005
 LYNCH, Circuit Judge. Altin Halo and Esmeralda Hysenaj

are Albanian nationals whose applications for asylum, withholding

of removal, and relief under the Convention Against Torture (CAT)

were denied by the Immigration Judge (IJ). That denial was

affirmed by the Board of Immigration Appeals (BIA). The two

decisionmakers rested their conclusions on different grounds. The

IJ denied asylum on the basis that Halo, the lead applicant, was

not credible.

The BIA noted the IJ's lack-of-credibility finding;

however, it did not purport to adopt it. Rather, the BIA found

that

even assuming the credibility of the
testimony, the lead respondent would have
failed to establish that the harms he claims
to have suffered amounted to persecution on
account of his political opinion (actual or
imputed) or any other statutory basis for
asylum and withholding of removal. We further
find that background evidence in the record
fails to show that a person such as the
respondent would face a reasonable possibility
of persecution, or a clear probability of
persecution or torture if he were to return to
Albania.

The BIA offered no further explanation for its conclusions.

Lacking such explanation, and given that the final agency decision

does not rest on a lack-of-credibility determination, we are left

with significant questions about the justifications for the denial.

We therefore vacate the BIA's order and remand.

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 I.

Halo entered the United States via Canada in December

1999. On December 26, 2000, he filed an Application for Asylum and

for Withholding of Removal.

The second petitioner, Hysenaj, entered the United States

via Canada in November 2001. She and Halo were married at the

Albanian Embassy in Washington, D.C., on April 16, 2002. On

December 12, 2002, she presented herself to the INS1 in Boston and

was served with a Notice to Appear. The IJ granted Hysenaj's

motion to consolidate her proceedings with Halo's, and the couple

appeared jointly before the IJ on November 12, 2003.

What follows is a summary of Halo's testimony at the

hearing: Halo's father and uncle were members of the Democratic

Party in his hometown of Fier, and his uncle contributed

significant amounts of money to the party. In February 1995, Halo

-- who had been attending party meetings and demonstrations with

his father and uncle since 1990 -- formally joined the party. He

continued attending party rallies at least once a week. He also

drove trucks for his uncle's business and served as his personal

driver.

1
On March 1, 2003, the relevant functions of the INS were
transferred to the Department of Homeland Security, and the INS
subsequently ceased to exist. See Homeland Security Act of 2002,
Pub. L. No. 107-296, § 471, 116 Stat. 2135, 2205 (codified as
amended at 6 U.S.C. § 291(a)).

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 From 1995 to 1997, the Democratic Party was in power and

the demonstrations Halo attended were peaceful. But in June 1997,

the Socialist Party was elected to power, and the Democrats began

holding rallies to protest the Socialist victory. By 1998, Halo

testified, baton-wielding government officials had begun coming to

the Democratic rallies and breaking them up.

In 1998, Halo's uncle began to receive phone calls from

Socialists asking him to drop his support for the Democrats and

become a Socialist instead. Unidentified callers also called

Halo's home at night and sought answers about what his uncle's

political affiliations would be. Halo's father and uncle decided

not to join the Socialists, but they talked to Halo about the

possibility of switching his allegiance because he was the future

of the family and they did not want him to have to suffer

persecution. Halo rejected the idea of joining the Socialists and

remained a Democrat.

In June 1998, several individuals wearing masks came to

Halo's home. When his mother answered the door, they shoved her

against a wall, entered the home, and grabbed Halo, telling his

mother they were taking him to "verify some documents." They took

Halo to the local police station, where he was held in a cell for

three days. Halo was not given food during this time. On at least

one occasion, his captors came into his cell, kicked him, and said

"you don't like the Socialist Party." Halo offered few details on

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the extent of his injuries from the beating, but he did say that

when he was released, his family members were waiting for him

outside the police station and they wept when they saw his

condition.

Three months later, in September 1998, Halo participated

in a Democratic Party demonstration in Fier. After party leaders

left, police came to try to break up the demonstration. The

police, who were wielding "sticks," arrested ten demonstrators,

Halo among them. He was held for a week in a jail cell and given

only small amounts of food. He testified that the arrests occurred

because a Democratic Party leader had been assassinated and the

government said it wanted to investigate whether the assassination

plot had been "prepared in Fier."

Halo was arrested again in December 1998. He testified

that the arrest was associated with the pressure the Socialist

Party was putting on his uncle to publicly convert to Socialist

membership. In fact, as part of the pressure tactics, the

Socialists made calls to Halo's uncle while Halo sat in jail,

threatening to kill Halo and all the members of the uncle's family.

After Halo was released, his uncle continued receiving

threatening phone calls; the callers insulted him and again

threatened to kill his family. Finally, in July 1999, Halo and his

father and uncle decided Halo needed to flee the country to avoid

harm. He fled to Italy, France, England, Canada, and then the

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United States. After Halo left Albania, his uncle was

assassinated. Halo claimed the Socialist Party was behind the

killing. He also testified that the Socialists are still in power

in Albania, that his relatives in Albania fear for their safety in

the wake of his uncle's death, and that he believes he too will be

killed if he returns to the country.

After hearing Halo's testimony, the IJ issued an oral

decision rejecting Halo and Hysenaj's application for relief. The

IJ's main rationale was an adverse credibility finding. The IJ

noted, inter alia, that (1) Halo's original asylum application did

not mention that he had been a member of the Democratic Party or

that he had been detained or beaten; (2) there was conflicting

evidence about how, when, and even whether Halo's uncle was killed,

and no corroborating evidence that the uncle had been politically

active; and (3) it did not seem logical that Halo would wait more

than six months after his last arrest before fleeing Albania.

Given those findings, the IJ concluded that Halo's claim was

"simply a preconceived idea of coming to the United States and

starting a better life." The IJ also stated that even if Halo was

detained on the three occasions he identified, that did not

constitute a pattern of mistreatment and thus he had not

established that he had been persecuted in the past or that he

harbored a well-founded fear of future persecution.

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 The BIA affirmed, but on different grounds. As explained

above, the BIA assumed Halo's credibility and wrote, without

explanation, that he had not made a showing of persecution

sufficient to justify relief.

II.

In evaluating a BIA denial of asylum, our review is aimed

at determining whether the decision is supported by substantial

evidence in the record. Bocova v. Gonzales, 412 F.3d 257, 262 (1st

Cir. 2005) (citing Da Silva v. Ashcroft, 394 F.3d 1, 4 (1st Cir.

2005)); see also INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992).

Under that standard of review, we must uphold the BIA's fact-based

determination of whether an alien is eligible for asylum "unless

any reasonable adjudicator would be compelled to conclude to the

contrary." Bocova, 412 F.3d at 262 (quoting 8 U.S.C. §

1252(b)(4)(B)). We may remand, however, if the BIA's opinion fails

to "state with sufficient particularity and clarity the reasons for

denial of asylum." Gailius v. INS, 147 F.3d 34, 46 (1st Cir. 1998)

(internal quotation marks omitted). This is because we apply to

the BIA "normal principles of administrative law governing the role

of courts of appeals when reviewing agency decisions for

substantial evidence," Cordero-Trejo v. INS, 40 F.3d 482, 487 (1st

Cir. 1994), and under those principles, "a reviewing court . . .

must judge the propriety of [administrative] action solely by the

grounds invoked by the agency," and "that basis must be set forth

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with such clarity as to be understandable." Gailius, 147 F.3d at

44 (quoting SEC v. Chenery Corp., 332 U.S. 194, 196 (1947))

(omission and alteration in Gailius).

In this case, assuming Halo's testimony to be true, he

was an active member of the Democratic Party and worked at the

right hand of his uncle, a leading member of, and significant

source of funding for, the party. He was hauled in three times by

the Albanian police after the rival Socialists took power, at least

once because of his and/or his uncle's political affiliations and

another time as part of an effort to force his uncle to switch

party loyalties. He was beaten and denied food while in custody.

Most importantly, if Halo's testimony is truthful, (1) government

officials threatened to kill his uncle to pressure him to change

his party affiliation and join the Socialists, (2) those same

government officials also threatened to kill Halo if his uncle did

not acquiesce, (3) Halo was known to be his uncle's right-hand man

and a Democratic supporter, (4) Halo's uncle was eventually

assassinated for his political activity and refusal to join the

Socialists, and (5) Halo fears that if he were to return to

Albania, he would be killed for the same reasons.

It is not clear to us why this does not establish past

persecution, or even reasonable fear of future persecution, on

account of Halo's political opinion and his and his family's

affiliation with the Democratic party. The BIA may well have had

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valid reasons for its conclusion, see Topalli v. Gonzales, No. 04-

2514, 2005 U.S. App. LEXIS 15825, at *11-12 (1st Cir. Aug. 2, 2005)

(distinguishing "isolated incidents" of maltreatment from

"systematic maltreatment rising to the level of persecution"), but

if so those reasons have not been articulated "with sufficient

particularity and clarity." Gailius, 147 F.3d at 46.2

Second, if Halo had demonstrated past persecution based

on political opinion, then the burden would shift to the

government: the BIA could still find Halo ineligible for asylum,

but only if the government established that "[t]here has been a

fundamental change in circumstances such that the applicant no

longer has a well-founded fear of persecution in the applicant's

country of nationality," or that "[t]he applicant could avoid

future persecution by relocating to another part of the applicant's

country." El Moraghy v. Ashcroft, 331 F.3d 195, 203 (1st Cir.

2003) (quoting 8 C.F.R. §§ 1208.13(b)(1)(i)(A)-(B)) (alterations in

original). Here the BIA stated that Halo would not face a

reasonable possibility of persecution if returned to Albania, but

its statement was conclusory; it offered no explanation of why this

was so and did not account for the presumption arising from past

persecution. As such, we cannot rely on that ground for an

2
The BIA here chose not to use its adoption and affirmance
procedure, under which it indicates that its "conclusions upon
review of the record coincide with those which the immigration
judge articulated in his or her decision." Matter of Burbano, 20
I. & N. Dec. 872, 874 (BIA 1994).

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affirmance. Under these circumstances we think the best outcome is

to remand to the agency.3

Of course, this would be a different (and, from the

government's standpoint, much easier) case if the IJ's adverse

credibility determination were to be given effect. The BIA,

however, chose not to review that determination, but, rather, to

assume arguendo Halo's credibility. On remand, the BIA is free, if

it so elects, to reevaluate that decision and pass upon the IJ's

adverse credibility determination.

III.

The order of the BIA is vacated, and the case is remanded

to the BIA for further proceedings consistent with this opinion.

3
Because of our disposition, we need not address the BIA's
decision denying withholding of removal or CAT relief.

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