Hysi v. Gonzales, 04-2572.

• Decision Date: 15 June 2005
• Docket Number: No. 04-2572.,04-2572.
• Citation: 411 F.3d 847
• Parties: Ermand HYSI and Mirela Hysi, Petitioners, v. Alberto R. GONZALES,<SMALL><SUP>1</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

411 F.3d 847 Ermand HYSI and Mirela Hysi, Petitioners,
v.
Alberto R. GONZALES,¹ Respondent. No. 04-2572. United States Court of Appeals, Seventh Circuit. Argued January 13, 2005. Decided June 15, 2005.

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Godfrey Y. Muwonge (argued), Milwaukee, WI, for Petitioners.

George P. Katsivalis, Department of Homeland Security Office of the District Counsel, Chicago, IL, Daniel E. Goldman (argued), Department of Justice, Washington, DC, for Respondent.

Before ROVNER, EVANS and SYKES, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

Ermand Hysi ("Hysi") and his wife, Mirela, are citizens of Albania. Hysi overstayed his visa while visiting the United States and Mirela arrived here without any valid entry documents. When the Immigration and Naturalization Service ("INS") began proceedings to remove them, Hysi sought asylum, withholding of removal under the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment ("Convention Against Torture"), and in the alternative, voluntary departure. Mirela's claims are derivative of Ermand's and thus the focus of the appeal is exclusively on Ermand Hysi's claims. An Immigration Judge ("IJ") found that Hysi lacked credible evidence to support his claims and therefore denied Hysi's applications for asylum and withholding of removal as well as his request for voluntary departure. Instead, the IJ ordered the removal of Ermand and Mirela Hysi to Albania. The Board of Immigration Appeals ("BIA") summarily affirmed the IJ's decision and we now affirm as well.

I.

Hysi arrived in the United States in late November 1996 as a non-immigrant visitor with authorization to remain here until June 14, 1997. Rather than leaving at the appointed time, Hysi remained and in July 1997, he filed an application for asylum with the INS. The INS referred the application to the immigration court and charged Hysi with removability as an alien who remained in the United States for a time longer than permitted. See 8 U.S.C. § 1227(a)(1)(B). At a preliminary hearing, Hysi admitted the factual allegations against him and conceded that he was removable. He petitioned the court for asylum, withholding of removal under the Convention Against Torture and, in the alternative, voluntary departure.

The IJ held a hearing at which Hysi presented testimony, documentary evidence and an expert witness in support of his claims. Hysi testified that his family opposed the communist regime in Albania, and that after democratically-elected President Berisha came into power, he went to work for the Berisha government. His job involved filing and archiving documents, and maintaining the personnel files of people working for the administration. He also managed employees with housekeeping, cleaning and utilities duties. Hysi believed that people who had worked for the communist regime should not be hired to work in the Berisha-led government,

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but his manager disagreed. Hysi had other conflicts with his manager and was fired from his job in 1996 due to, he claims, his outspokenness.

Hysi testified that he filed a complaint seeking to get his job back but that complaint was reviewed by the same person who had fired him and thus was denied. He then filed a complaint with the High Court of Albania that was also denied. Hysi did not retain copies of these complaints and thus had no documentary evidence to support this part of his account. In addition to his job with the Berisha administration, Hysi worked about once a month on a committee responsible for returning to the original owners land and property that had been seized by the communist regime. Hysi's job was to review claims for property, verify which claims were legitimate and then recommend to the committee chairman whether the property in question should be returned to the claimant. Hysi averred that he was unable to help anyone retrieve their property because the committee chairman would instead give the property to people who paid bribes or were high ranking government officials. After he lost his job with the Berisha administration, Hysi was also removed from the committee.

In January 1996, after losing both positions, Hysi stated that he went to work for the Right Democratic Party (known in Albania as the "PDD") and also became a member. In conjunction with the PDD, Hysi was paid to write articles for publication. Hysi claimed he wrote articles that criticized the Democratic Party and as a result he was physically attacked. In late May 1996, he testified, four men kidnaped him, took him to a mountain and beat him. He believed the men worked in the Berisha administration. According to Hysi, the men warned him that if he continued to speak or write against the Democratic Party, he would be "in a lot more trouble." Hysi testified that he was beaten into unconsciousness by these men and that passersby later helped him return home. He did not seek medical attention for his injuries.

After this attack, Hysi testified, he visited the United States. During his stay here, he wrote two political articles which discussed the manipulation of upcoming Albanian elections by the Democratic Party and the Socialist Party. He faxed these articles to Albania where they were published in two different newspapers in August 1996. Hysi testified that these two newspapers were both published by PDD members and that the publication of his articles in these newspapers proved his membership in PDD. Hysi testified that he lost all of his identification cards when he lost his wallet on the airplane during his trip to the United States in November 1996 and thus his only proof of membership in PDD was the two articles published in PDD newspapers. He submitted these articles in support of his application for asylum. He testified that, although he wrote other articles about the government, he submitted these two with his application for asylum because he thought these were "the only ones that have to do with the case." Tr. at 150. He confirmed, when asked, that none of his other articles had caused him problems with the government.

Hysi testified that he returned to Albania in September 1996 and that in October of that year, he was interrogated and held in the prosecutor's office under the pretext that he had offended President Berisha. He was beaten and then released after being held two days. He nonetheless continued his political activities after this attack, but after the November elections, the same four men who had kidnaped him earlier, kidnaped him again. He testified that this time his attackers beat him and told him that if he continued his political

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activities he would be "physically eliminated." He told the IJ that he required a one-week stay in a hospital after this beating, and he provided documentation of the hospital stay. After his release from the hospital, he and his family decided that it was best for him to return to the United States. At the end of November 1996, Hysi returned to the United States. After his departure from Albania, Hysi testified, his wife was pressured and threatened by people who told her that Hysi would be harmed if he returned to Albania. Although his wife could not say who these people were, she was frightened and decided to come to the United States as well. She arrived in the United States in August 1997.

On cross-examination, the INS questioned Hysi about the authenticity of the newspaper articles that were the center of his claim of persecution. The INS had the original prints of the articles that Hysi had submitted in support of his asylum claim, and the INS attorney pointed out that Hysi's name appeared to be in a different typeface than the rest of the article, and was printed in bold unlike other printing on the page. The IJ examined the newspapers and noted that parts of the paper containing Hysi's name were translucent but the rest of the newspaper was not. The INS attorney asked Hysi if his name had been stamped on the page after publication. Hysi's response to these discrepancies was that he was in fact the author of these articles. While the hearing proceeded, the IJ's law clerk attempted to verify the authenticity of the articles by contacting the Library of Congress and by searching the internet. At the close of evidence, the IJ returned to the issue because the clerk had been unable to verify the true author of the articles.

Hysi's counsel complained that the INS had these documents for a lengthy time without having them analyzed and suggested that the articles be submitted for evaluation. Hysi's lawyer pointed out that neither the attorneys present nor the IJ were experts who could determine the authenticity of Hysi's name on the newspapers. The IJ consequently sent both newspaper articles to the INS...