Shehu v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
In the March 17, 2006
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________

m 05-60585
Summary Calendar
_______________

FLORIE SHEHU,

Petitioner,

VERSUS

ALBERTO R. GONZALES,
U.S. ATTORNEY GENERAL,

Respondent.

_________________________

Petition for Review of an Order
of the Board of Immigration Appeals

______________________________

Before SMITH, GARZA, AND PRADO, denying her petition for asylum. The IJ found
Circuit Judges. Shehu to be a credible witness and that Shehu
had established past persecution. Because she
JERRY E. SMITH, Circuit Judge: established past persecution, Shehu was en-
titled to a rebuttable presumption of a well-
Florie Shehu, a Kosovar Muslim who fled founded fear of future persecution, with the
her country during the 1998 turmoil, appeals burden on the government to prove, by a pre-
the decision of the Board of Immigration Ap- ponderance of the evidence, that circumstanc-
peals (“BIA”), which summarily affirmed the es in Kosovo had changed to such degree that
decision of the Immigration Judge (“IJ”)
Shehu’s fear was no longer “well-founded.”1 Kosovo (“UNMIK”) and Provisional Institu-
tions of Self Government (“PISG”).
The IJ found that the government has met
that burden. On appeal, Shehu argues that the The Serbian paramilitary forces have left
IJ’s findings were general and did not respond Kosovo. Moreover, we take judicial notice of
to her individualized factual statements dem- the 2003 Country Report, which states that
onstrating fear of future persecution. She also “the high level of revenge-based violence that
argues that any alleged change in Kosovo is followed Yugoslavia’s 1999 withdrawal con-
not a “fundamental” change and that she was tinued to decline significantly,” and that there
entitled to humanitarian asylum. were “several instances of Serb violence
against Kosovo Albanians, but no reported fa-
We must affirm if the decision is “supported talities.”2 Erebara v. Ashcroft, 124 Fed.
by reasonable, substantial, and probative Appx. 444 (7th Cir. 2005) (taking judicial
evidence on the record considered as a notice of the same report).
whole.” INS v. Elias-Zacarias, 502 U.S. 478,
481 (1992). We will reverse only if we de- The identity of the current Kosovar gov-
termine that the evidence compels a different ernment is therefore different from that of the
result. Id. past government that persecuted the Shehus.
The Serbian paramilitary forces have also left
I. the country. Whatever harassment or violence
This court has not considered what limi- against former KLA members and their fami-
tations should be placed on inferences that can lies still exists cannot be labeled “persecution”
be drawn from generalized evidence of absent some proof that the current UNMIK
changed country conditions. Even assuming and Albanian-controlled Kosovar government
that we would require the government to ne- “condoned it or at least demonstrated a com-
gate the applicant’s individual fear of persecu- plete helplessness to protect the victims.”
tion, the evidence effectively negates Shehu’s Galina v. INS, 213 F.3d 955, 958 (7th Cir.
individual fear of persecution. 2000).

All instances of past persecution that Shehu The record does not compel or even sup-
has cited, on behalf of herself or of her rela- port a conclusion that Mr. Shehu’s crash,
tives, were at the hands of the Serbian-domin- which petitioner labels attempted killing, was
ated police or Serbian paramilitary forces. The orchestrated or condoned by the current gov-
IJ found, howeverSSand the finding is ernment. The IJ stated that “[r]espondent
supported by substantial evidenceSSthat the does not specifically address who her
Kosovo administration (and police) are no
longer dominated by Serbs, but by the United 2
See Dobrota v. INS, 195 F.3d 970, 973 (7th
Nations Interim Administrative Mission in Cir. 1999) (taking judicial notice of most recent
Country Report to determine current country con-
ditions); United States Department of State, Coun-
1
See 8 C.F.R. § 208.13(b)(1)(i), (ii); Zhu v. try Reports on Human Rights PracticesSS2003:
Ashcroft, 382 F.3d 521, 529 & n.6 (5th Cir. 2004); Serbia and Montenegro (Feb. 25, 2004), available
Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir. at www.state.gov/g/drl/rls/hrrpt/2003-
2005). /27874pdf.htm.

2
husband’s enemies were and why she believes the record does not compel a conclusion that
they are still at large in Kosovo.” A.R. 91. the change in circumstances did not negate
Shehu’s alleged fear of persecution.
In fact, the most current country report, of
which we also take judicial notice, states that Decisions from other jurisdictions have
“[t]here were no politically motivated killings reach similar conclusions.4 The Second Circuit
by UNMIK, the PISG, KFOR, or their agents” has recently held, for instance, that where the
and that “UNMIK and the PISG generally re- past and future forms of abuse implicate
spected the human rights of Kosovo’s resi- different policies or practices, the govern-
dents” with some exceptions with respect to ment’s burden in proving changed country
violations of the rights of Kosovo Serbs.3 conditions is lighter than if the abusive prac-
That is, it is Serbs, not Albanians, who appear tices implicated the same concerns. See Islami
most of risk of potential persecution. Because v. Gonzales, 412 F.3d 391, 397 (2d Cir.
Shehu has not presented any direct or circum- 2005). Because Islami’s prospective fears
stantial evidence that would connect the gov- were not related to “institutionalized persecu-
ernment to her husband’s car crash, the IJ was tion” from the government and military, but in-
not required to believe her speculative opinion stead centered on “alleged scattered incidents
as to the origin of the crash, even if he be- of continued harassment and abuse of ethnic
lieved her factual account that there was a Albanians,” the court found that the pre-
crash. sumption of future persecution was adequately
rebutted. Id. In this case, as in Islami, the
Contrary to Shehu’s assertions, even if her past and future forms of abuse implicate
factual testimony that a car crash occur might different policies or practices because the past
not require corroboration if credible, there is persecution was institutionalized persecution
no ban on the IJ’s asking for corroboration on led by the Serbian-controlled government and
the applicant’s opinion testimony that the cur- paramilitary forces, but the current abuse, al-
rent Kosovar government condoned the crash, though attributed to Serbs, is not linked to the
especially given that there is no factual basis to UNMIK and Albanian-controlled Kosovar
make such an opinion inference. For instance,
there is no evidence that the Shehus reported 4
See, e.g., Grishaj v. I.N.S., 101 Fed. Appx.
the crash to the police or requested protection, 631 (6th Cir. 2004) (holding that the presumption
and whether that effort was in vain. Although of future persecution was rebutted by evidence that
the violence against former KLA members conditions in Kosovo had changed, because,
reported by Shehu’s expert is unfortunate, despite citing some contrary evidence, petitioner
there is no “persecution” absent proof that the has not met her burden of showing that any rea-
violence is condoned or orchestrated by the sonable adjudicator would be compelled to reach a
current Kosovar government. Therefore, the different conclusion); Jakaj v. U.S. Dep’t of
Justice, 2006 WL 166479, at *1 (2d Cir. Jan. 24,
IJ did not misapply the corroboration rule, and
2006) (finding that presumption of future perse-
cution based on political opinion was rebutted by
3
United States Department of State, Country evidence from state department reports and news-
Reports on Human Rights PracticesSS2004: Serbia paper articles that the Democratic League of Koso-
and Montenegro (Feb. 28, 2005), available at vo, the political party in which Jakaj was an active
h t t p : / / w w w . s t a t e. g o v / g / d r l / r l s / h r r p t - member, was successful in the 2001 elections).
/2004/41706.htm.

3
government. 90. The IJ noted that the Serbs became so
fearful of revenge by the ethnic Albanians that
II. 150,000 Serbs left Kosovo. Id.
We also reject Shehu’s claim that there was
no proof, by a preponderance of the evidence, The IJ also commented that murders in
of a “fundamental” change in country condi- Kosovo decreased from 136 in 2001 to 68 in
tions. Shehu asserts that reliance solely on 2002 and that most of the murders of Serbs
State Department reports was inadequate and and minorities were ethnically motivated, but
that any change that was proved is only “tem- the killings of Albanians were connected to
porary” thus by definition not fundamental. family and economic rivalries and criminal ac-
tivities. Id. The IJ noted that although there
Contrary to Shehu’s allegation that the IJ was some Serb violence against ethnic Alba-
made his determination as to changed country nians, it was primarily limited to the Serb-
conditions based solely on the State Depart- controlled north. Id. He explained that the
ment Reports, the IJ stated that “[d]ocuments Shehus lived in Junik, which was located in the
submitted by both parties, including the State South, near the border with Albania.
Department’s Country Reports on Human
Rights Practices for the Federal Republic of The IJ noted (and this finding is also sup-
Yugoslavia, articles on the current situation in ported by the most recent Country Report),
Kosovo, plus a report of an Independent Task that freedom of movement for ethnic minori-
Force in the Balkans describe the changes that ties, particularly Kosovo Serbs, continued to
have occurred in Yugoslavia since the fall of be a serious problem, so Serbs from Northern
Milosevic.” A.R. 89. From the totality of enclaves could not travel to Junik to endanger
these documents the IJ concluded that “the the Shehus’ lives. Shehu’s expert testified that
documents show that the Serbian oppression Serbs continued to move freely, but the IJ
of ethnic Albanians has been greatly reduced.” gave more weight to the State Department re-
The IJ also noted that the State Department’s ports because Shehu’s expert failed to give
reports, which show that circumstances have specific examples to corroborate her opinion.
changed, are corroborated by the report cre- The record does not compel (rather than mere-
ated by the Independent Task Force, which ly support) a contrary conclusion.
stated that “The Balkan violence of the 1990s
has run its course . . . . In Kosovo, the repres- In sum, the IJ found that fundamental
sion of the ethnic Albanians has ended and changes have occurred in Kosovo because the
work has begun to rebuild that damaged soci- paramilitary forces that persecuted Shehu in
ety.” A.R. 91. the past no longer control Kosovo. Although
Shehu cites to a 2000 article that the NATO
The IJ quoted the State Department Re- forces were unable fully to control the vio-
ports that showed that approximately 100,000 lence, later country reports plainly show that
Serbs remaining in Kosovo live primarily in the the violence has been significantly decreased,
north or in enclaves under the protection of a as noted above. Most importantly, there is no
NATO peacekeeping force and that much of evidence that the UN, NATO and Albanian
the ethnically motivated violence in the region forces controlling Kosovo are orchestrating
is now perpetrated by ethnic Albanians. A.R. and condoning violence against ethnic Alba-

4
nians for ethnic or political reasons. The rec- cur explained, “[m]ild persecution may be
ord does not compel a contrary conclusion. something of an oxymoron, but the regulation
makes clear that a refugee who has no reason-
Shehu also argues that only transitory, not able fear of future persecution must indeed
fundamental, changes occurred in Kosovo be- prove that his past persecution was a severe
cause the Serbian nationalists won a plurality rather than a mild (bordering on ‘mere’ dis-
of votes in the Serbian parliament in 2003, so crimination) form of persecution.” Bucur, 109
there was risk of backsliding in the region. F.3d at 405.
This argument is frivolous. Although Kosovo
is technically part of Serbia and Montenegro, In Bucur, the persecution suffered by a Je-
it has significant autonomy, its own parliament hovah’s Witness in Romania, where allegedly
in which ethnic Albanians have a majority of he was not allowed to practice his religion,
votes, and its own administration independent was found not to be severe enough as that out-
of Serbia. There is no indication that the lined in past cases such as Matter of Chen.
Serbian nationalists could ever gain control of Similarly, in Pergega-Gjonaj v. Gonzales, 128
the Kosovar legislative or executive branches.5 Fed. Appx. 507 (6th Cir. 2005) (per curiam),
Therefore, the record does not compel a the four months of hard labor and starvation
conclusion that the changes in Kosovo are endured by petitioners was found “undoubt-
transitory as opposed to permanent. edly terrible, and their plight was considered
even more difficult as a result of the atrocities
III. committed against their family members,” id.
The regulations, namely 8 C.F.R. § 208.13- at 512, yet, the court was “convinced that the
(b)(1)(iii)(A), nevertheless allow an alien who suffering inflicted upon these petitioners does
has been persecuted but is in no danger of not represent the type of extreme case neces-
being harmed in the future to avoid removal by sary to justify the invocation of § 208.13(b)-
showing “compelling reasons” for not being (1)(iii)(A),” id. at 513.
returned to his country. Shehu argues that she
qualifies under this provision. Like the petitioners in Bucur and Pergega-
Gjonaj, Shehu has been unable to show severe
For this regulation to be invoked, the past persecution. She argues that severe persecu-
persecution suffered by an alien must be par- tion is demonstrated by the facts (1) that her
ticularly severe, as was the case of the German father was kidnaped and executed; (2) that she
Jews, the victims of the Chinese Cultural Rev- 6
olution, survivors of the Cambodian genocide, (...continued)
and a few other such extreme cases.6 As Bu 1997); see also Gonahasa v. INS, 181 F.3d 538,
544 (4th Cir. 1999) (“Eligibility for asylum based
on severity of persecution alone is reserved for the
5
Furthermore, it is uncertain whether after the most atrocious abuse.”); Matter of Chen, 20 I. &
departure of the NATO forces, Kosovo will even N. Dec. 16, 19-20 (BIA 1989) (humanitarian asy-
continue to be part of Serbia and Montenegro, or lum justified for victim of Chinese Cultural Rev-
will be recognized as an independent state later this olution whose father was tortured for eight years
year after the conclusion of UN-led negotiations and killed, and who was interrogated, imprisoned,
that are currently taking place in Vienna. tortured, and starved for nine years, beginning
6
Bucur v. INS, 109 F.3d 399, 405 (7th Cir. when he was a child, leaving him physically de-
(continued...) bilitated).

5
was forced to watch her husband being beaten; not constitute persecution, or at least not se-
(3) being forced into exile and having to es- vere persecution.8
cape by foot; (4) having her livelihood as a
doctor destroyed; (5) being subjected to artil- Last, although the fact that Shehu and her
lery and infantry attack for a few days, village were subject to artillery and infantry
(6) having a home destroyed by Serbian troops attacks for a few days does constitute persecu-
and (7) that her husband was wounded, beat- tion, it is not as severe as that in Chen, in
en, and subject to attempted murder. which the petitioner was interrogated, impris-
oned, tortured, and starved for nine years, be-
Facts (1) and (7) do not apply because they ginning when he was a child, leaving him phy-
do not relate to persecution personally suf- sically debilitated. 20 I. & N. Dec. at 19-20.
fered by the petitioner. Similarly, facts (2), Therefore, the evidence Shehu has presented
(3), and (7) are no more severe than the expe- does not compel a conclusion that she was
rience of a vast percentage of those seeking entitled to humanitarian asylum.
asylum who suffered beatings and were forced
into exile. Although these circumstances are The petition for review is therefore
terrible, they are not severe enough to warrant DENIED.
application of humanitarian asylum. Further-
more, losing one’s type of employment (fact
(4)) is not sufficient to show entitlement to
humanitarian asylum or even persecution.7
Shehu’s short arrests in 1990 and 1994 also do

7
See Capric v. Ashcroft, 355 F.3d 1075, 1093
(7th Cir. 2004) (holding that termination from job,
even in face of other economic hardship, did not
constitute persecution, especially considering that
economic hardship existed throughout country and
petitioner never sought other work); Medhin v.
Ashcroft, 350 F.3d 685, 689 (7th Cir. 2003)
(holding that loss of job because of ethnicity was
discrimination but not persecution); Sharif v. INS,
8
87 F.3d 932, 935 (7th Cir. 1996) (finding no per- See, e.g., Prela v. Ashcroft, 394 F.3d 515,
secution where petitioner lost job and found anoth- 518 (7th Cir. 2005) (stating that being “inter-
er); Gormley v. Ashcroft, 364 F.3d 1172, 1178-80 rogated at various times by the police, detained for
(9th Cir. 2004) (holding that loss of jobs as a result twenty-four hours, harassed for money, and beaten,
of South Africa’s post-apartheid Employment causing an injury to his hands” does not compel a
Equity Act, and inability to find alternate finding of persecution); Dandan v. Ashcroft, 339
employment, not persecution); Barreto-Claro v. F.3d 567, 573-74 (7th Cir. 2003) (concluding that
United States Attorney Gen., 275 F.3d 1334, 1340 detention for three days without food and beatings
(11th Cir. 2001) (holding that losing job as taxi that caused facial swelling did not compel a finding
driver and finding only “menial work” not of past persecution); Zalega v. INS, 916 F.2d
persecution); Zalega v. I.N.S., 916 F.2d 1257, 1257, 1260 (7th Cir. 1990) (affirming finding that
1260 (7th Cir. 1990) (holding that loss of job was periodic searches, arrests, and detainments did not
“persecution” but not substantial persecution). constitute past persecution).

6