Hoxha v. Ashcroft

• Decision Date: 18 February 2003
• Docket Number: No. 01-71636.,01-71636.
• Citation: 319 F.3d 1179
• Parties: Shpetim HOXHA, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

319 F.3d 1179

Shpetim HOXHA, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 01-71636.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 5, 2002.

Filed February 18, 2003.

Curtis F. Pierce, Los Angeles, CA, for the petitioner.

Norah Ascoli Schwarz, Michele Y.F. Sarko, United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. INS. No. A75-601-538.

Before CANBY, GOULD and BERZON, Circuit Judges.

CANBY, Circuit Judge:

Petitioner Shpetim Hoxha, an ethnic Albanian male from what used to be the Kosovo region of Serbia,¹ entered this country as a student and overstayed his visa. In deportation proceedings he applied for asylum, 8 U.S.C. § 1158, and withholding of deportation, 8 U.S.C. § 1231(b)(3), but the Board of Immigration Appeals ("BIA") held that he was not eligible for either. Hoxha petitions for review. We conclude that substantial evidence does not support the BIA's denial of eligibility for asylum but does support the denial of withholding of deportation. We accordingly grant the petition for review, reverse the decision of the BIA holding Hoxha ineligible for asylum, and remand to the BIA so that it may exercise its discretion whether to grant asylum.²

I

Ethnic Albanians make up about ninety percent of Kosovo's population of two million people, but, at the time of Hoxha's asylum hearing in February 1999, they were still a minority within Serbia as a whole. Because many Serbs, as well as the Serbian government, considered Kosovo to be a traditional part of Serbia, the existence of a substantial Albanian population sparked widespread violence and bloodshed between Albanians seeking independence from the Serbian-dominated government and a Serbian civilian and leadership bent on asserting its political and ethnic dominance over the region.

Hoxha's case reflected these realities. At his deportation hearing in February 1999, Hoxha testified about past mistreatment that he and other ethnic Albanians routinely received at the hands of Serbs. Hoxha testified that he had been subjected to harassment, threats and mistreatment since early childhood. He testified that he was repeatedly told to leave the country because it belonged to the Serbs and that he would be harmed or killed if he chose to stay. Hoxha testified that, on one occasion, he and a friend were set upon and beaten by a group of Serbs who overheard them speaking Albanian. Hoxha was treated for extensive facial bruises and two broken ribs. He testified that he did not report the incident to the police because he believed that the police would not take action to stop violence against ethnic Albanians.

While in the United States in 1998, Hoxha received a summons from the Serbian government to report for an "informative conversation," with no reason stated. Hoxha did not respond to the summons. Ilir Zymberi, a longtime friend of Hoxha who is also ethnic Albanian, testified that he received a similar summons, but that nothing out of the ordinary occurred when he responded in person.

Hoxha further testified that his father was a member of an opposition political party, but that his own political activity was limited to translating signs from Albanian into English for a planned demonstration that never took place.

Hoxha stated that he feared persecution should he return to Kosovo. He testified that adults of his age — he is in his early twenties — are particularly prone to abuse and stated that because he is an ethnic Albanian, he thought he would likely be killed should he return to the region. He submitted substantial documentary evidence detailing the various and extensive human rights violations committed against ethnic Albanians in Kosovo.

The Immigration Judge ("IJ") found Hoxha's testimony credible, but ruled that the lifetime of insults and one-time beating Hoxha experienced did not amount to past persecution, and that Hoxha had not established a well-founded fear of future persecution. In finding Hoxha's fear unfounded, the IJ noted that Hoxha's family has continued to live in Kosovo and has not experienced any mistreatment. Because Hoxha was found ineligible for asylum, he also failed to meet the higher standard required for withholding of deportation.

Hoxha appealed to the BIA. The BIA affirmed the IJ's decision and also found that the evidence presented by Hoxha did not demonstrate a pattern or practice of persecution.³ Hoxha then filed a timely petition for review with this court.

II

To be eligible for a discretionary grant of asylum, Hoxha must demonstrate that he is unwilling to return to Kosovo "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular group, or political opinion."⁴ 8 U.S.C § 1101(a)(42). Persecution because of his ethnicity as an Albanian can qualify. See Duarte de Guinac v. INS, 179 F.3d 1156, 1160 n. 5 (9th Cir.1999).

A. Past persecution

Substantial evidence supports the BIA's finding that Hoxha had not suffered past persecution, which would have raised a rebuttable presumption of a well-founded fear of future persecution. See Avetova-Elisseva v. INS, 213 F.3d 1192, 1197 (9th Cir.2000). Persecution is "the infliction of suffering or harm upon those who differ (in race, religion, or political opinion) in a way regarded as offensive." Desir v. Ilchert, 840 F.2d 723, 727 (9th Cir.1988) (quoting Kovac v. INS, 407 F.2d 102, 107 (9th Cir.1969)). Although Hoxha's experiences are disturbing and regrettable, they do not evince actions so severe as to compel a finding of past persecution. The unfulfilled threats by various Serbs against Hoxha constitute harassment rather than persecution. See Lim v. INS, 224 F.3d 929, 936 (9th Cir.2000) ("Threats themselves are sometimes hollow and, while uniformly unpleasant, often do not effect significant actual suffering or harm."). The one incident of physical violence against Hoxha was not connected with any particular threat and there is no evidence indicating that the incident was officially sponsored.⁵ There is no evidence that the attackers knew who Hoxha was or that they showed any continuing interest in him; Hoxha lived in Kosovo for another six months following the attack without experiencing any additional harm. See id. (considering the fact that the petitioner stayed in his native country after the attack without experiencing any future mistreatment in denying petitioner's asylum claim); Lata v. INS, 204 F.3d 1241, 1245 (9th Cir.2000) (same); see also Kamla Prasad v. INS, 47 F.3d 336, 339 (9th Cir.1995) (single incident of detention and beating did not compel finding of persecution). Hoxha, therefore, failed to present evidence compelling a finding of past persecution, and the BIA accordingly was not required to give Hoxha the benefit of a rebuttable presumption that his fears of future persecution were well founded.

B. Well-founded fear of future persecution

Hoxha may establish a well-founded fear of future persecution without the benefit of a presumption, however, and we conclude that he has done so by evidence that compels a finding in his favor.

In order to render Hoxha eligible for asylum, his fear of persecution must be both "subjectively [genuine] and objectively reasonable." Arriaga-Barrientos v. INS, 925 F.2d 1177, 1178 (9th Cir.1991). The parties agree that Hoxha met the subjective requirement by testifying credibly as to his fear of persecution. See id. The disputed issue is whether he provided evidence that compels a finding that his fear was objectively reasonable.

On this question, the general level of mistreatment of ethnic Albanians by the dominant Serbian majority set forth in the record helps to support Hoxha's position. Although Hoxha's fear must be based on an individualized rather than generalized risk of persecution, the level of individualized targeting that he must show is inversely related to the degree of persecution directed toward ethnic Albanians generally. See Kotasz v. INS, 31 F.3d 847, 852-54 (9th Cir.1994). "[T]he more egregious the showing of group persecution — the greater the risk to all members of the group — the less evidence of individualized persecution must be adduced," because of the increased likelihood that the applicant will face persecution simply on account of his or her membership in the group.⁶ Id. at 853. Thus, the determination whether Hoxha has a reasonable fear of future persecution depends on both Hoxha's own personal experience and the degree of persecution that faced ethnic Albanians generally.

The record evidence presented by Hoxha would compel any reasonable factfinder to conclude that his fear of future persecution was objectively reasonable at the time of his hearing in February 1999. The record provides a lengthy and grisly documentation of the numerous atrocities committed against ethnic Albanians. The 1997 State Department Profile of Asylum Claims and Country Conditions for Serbia—Montenegro notes that ethnic Albanians were subject to vigilantism, human rights abuses, discrimination, and shooting and bombing incidents. Furthermore, of all the areas in Serbia—Montenegro, the worst abuses occurred, and greatest risk existed, in Kosovo. Other evidence submitted by Hoxha identifies systematic oppression and flagrant violation of basic rights, as well as numerous cases in which ethnic Albanians were threatened, arrested and beaten. Also in the record are media reports indicating the United States government's displeasure with the Serbian policy of "shelling villages, burning houses, and murdering innocent men, women, and children." This statement by the American government is corroborated by reports of indiscriminate and bloody massacres of Kosovar villages on at least two separate occasions, resulting in the slaughter of scores of ethnic Albanians,...