Uruci v. Holder

• Decision Date: 20 February 2009
• Docket Number: No. 07-2044.,07-2044.
• Citation: 558 F.3d 14
• Parties: Alfred URUCI, Ariana Uruci, Xhulio Uruci, Petitioners, v. Eric H. HOLDER,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

558 F.3d 14

Alfred URUCI, Ariana Uruci, Xhulio Uruci, Petitioners, v. Eric H. HOLDER,^* Attorney General, Respondent, Appellee.

No. 07-2044.

United States Court of Appeals, First Circuit.

Submitted March 4, 2008.

Decided February 20, 2009.

Ilana Greenstein, Harvey Kaplan, Maureen O'Sullivan, Jeremiah Friedman and Kaplan, O'Sullivan & Friedman, LLP on brief for petitioners.

Jeffrey S. Bucholtz, Acting Assistant Attorney General, Civil Division, Jeffrey J. Bernstein, Senior Litigation Counsel and P. Michael Truman, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, on brief for respondent.

Before HOWARD and STAHL, Circuit Judges, and BESOSA,^** District Judge.

HOWARD, Circuit Judge.

The petitioners, Albanian nationals Alfred Uruci, his wife Ariana and their son Xhulio seek judicial review of a final order of the Board of Immigration Appeals (BIA). The order upheld an Immigration Judge's (IJ) denial of their request for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The BIA agreed with the IJ that, even assuming that Alfred Uruci suffered past persecution, the government had rebutted the presumption that Uruci held a well-founded fear of future persecution by demonstrating a change in country conditions in Albania.

The Urucis argue that the BIA's denial of their claims is not supported by substantial evidence. We disagree and deny the petition.

I. Background

The Urucis entered the United States in April 2000 without proper documentation. In January 2001, Alfred Uruci filed an application for asylum, withholding of removal, and protection under CAT, listing his spouse and son as derivative beneficiaries. In August 2002, the Immigration and Naturalization Service (INS) commenced removal proceedings against them, pursuant to 8 U.S.C. § 1227(a)(1)(A). Uruci conceded removability but pursued his applications for asylum, withholding of removal, and protection under CAT.

In support of his applications, Uruci claimed that he suffered persecution in Albania because of his political opinion and membership in a particular social group. Specifically, Uruci alleged that, as a member of the Democratic Party, he had suffered persecution by the Socialist Party and thus held a well-founded fear of future persecution.

Uruci, Ariana Uruci, and Nazo Veliu¹ all testified to the alleged persecution of Uruci. Additionally, the Urucis and the government each submitted documentation about country conditions in Albania. We summarize the evidence presented to the IJ as follows.

Alfred Uruci was born in Lushnje, Albania. His family was oppressed by Albania's communist dictatorship, and in 1991, after the fall of communism, Uruci joined the Democratic Party. He was a "simple member" who participated in rallies and meetings in his region, and served as an election monitor in 1997. Although other family members supported the Democratic Party, only Uruci formally joined. Since the fall of the government, Uruci's siblings and parents have not experienced persecution while living in Albania.

In support of his persecution claim, Uruci described five incidents that occurred in Lushnje. All of these incidents involved either physical violence, threats, or both. And, during one in particular, Uruci was beaten severely enough to require hospitalization.

During some of these incidents, persons associated with the Socialist party either scolded Uruci for his Democratic activities or warned him to cease these activities. But other attacks were motivated in part by Uruci's non-political actions. Specifically, during some of the incidents Uruci was threatened for his attempts to recover property he believed was legally his from Xhemil Bendo, a member of a former communist family with ties to Lushnje and the then-Socialist local government.

Collectively, the incidents described above led Uruci to flee to Greece with his wife and son in September 1998. Nevertheless, the Urucis did travel back to Albania three times without incident, avoiding Lushnje on each visit. In April 2000, the Urucis entered the United States and applied for asylum. Uruci and his wife each stated a belief that if they returned to Albania, regardless of location, the Socialist Party would harm Mr. Uruci.

The IJ determined that the witnesses who testified to the incidents that occurred in Albania were all credible. And the IJ assumed, arguendo, that the incidents constituted persecution and that a nexus existed between the attacks and a protected ground. Nevertheless, the IJ rejected Uruci's petition for asylum, withholding of removal, and protection under CAT. Even with a presumption of a well-founded fear of future persecution, the IJ concluded that conditions in Albania had changed to such an extent that Uruci's fear of future persecution was no longer reasonable.

In reaching this conclusion, the IJ reviewed a 2004 State Department Country Report,² a 2004 State Department Asylum Profile,³ as well as documents which evidenced the 2005 victory of the Democratic Party in the Albanian Parliament, obtaining control of 80 seats out of 140. The IJ also reviewed documents that called the two State Department reports into question, including a 2001 Amnesty International report,⁴ but concluded that they did not negate the more recent State Department reports.

Finding that the government met its burden and rebutted the presumption of a well-founded fear of future persecution, the IJ accordingly denied Uruci's claim for asylum. Moreover, since Uruci failed to meet the asylum standard, the IJ concluded that he did not meet the more stringent standard for withholding of removal. Turning to Uruci's claim for protection under CAT, the IJ found that Uruci failed to establish that "it is more likely than not" that if returned to Albania, he would be tortured by an official of the Albanian Government. Thus, the IJ denied Uruci's application for protection under CAT.

The BIA affirmed the IJ's decision on the basis of changed country conditions.

II. Discussion

We start with Uruci's asylum claim, because a failure to establish a well-founded fear of persecution necessarily forecloses a petitioner's ability to qualify for withholding of removal by showing that more likely than not he would face persecution. Mediouni v. INS, 314 F.3d 24, 27 (1st Cir.2002). "Where, as here, `the BIA has adopted and affirmed the IJ's ruling, but also discussed some of the bases for the IJ's opinion, we review both the IJ's and the BIA's opinions.'" Lin v. Gonzales, 503 F.3d 4, 6-7 (1st Cir.2007) (quoting Zheng v. Gonzales, 475 F.3d 30, 33 (1st Cir.2007)). The IJ's factual findings and decision are reviewed under the deferential "substantial evidence" standard. Carcamo-Recinos v. Ashcroft, 389 F.3d 253, 256 (1st Cir.2004). Under this standard, we will uphold the decision if it is supported by "reasonable, substantial, and probative evidence on the record considered as a whole."⁵ Aihua Chiv Wang v. Mukasey, 508 F.3d 80, 84 (1st Cir.2007).

A petitioner bears the burden of establishing eligibility for asylum by demonstrating a well-founded fear of future persecution that is based on one of five statutory grounds: race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A); Afful v. Ashcroft, 380 F.3d 1, 3 (1st Cir.2004). By showing past persecution, a petitioner creates a rebuttable presumption that his fear of future persecution is well-founded. Zarouite v. Gonzales, 424 F.3d 60, 63 (1st Cir.2005). The government can overcome this presumption by demonstrating, under a preponderance standard, that there has been a "fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution." 8 C.F.R. § 1208.13(b)(1)(i)(A).

Uruci presents four arguments in support of his contention that the IJ and BIA erred in concluding that the government rebutted the presumption that he held a well-founded fear of future persecution: (1) the 2005 Parliamentary Elections do not demonstrate a fundamental change in country conditions; (2) the State Department reports do not demonstrate a fundamental change; (3) the IJ gave credence only to the State Department reports and ignored conflicting evidence in the record; and (4) the IJ made an unsupported assumption that Uruci would not be persecuted upon return to Albania, based on an inference he drew from Veliu's testimony about her own experiences as a high-ranking Democratic Party member.

We reject Uruci's arguments because we conclude that substantial evidence supports the IJ's and BIA's determination that Uruci's well-founded fear of future persecution was rebutted by a fundamental change in Albanian country conditions.

Uruci first claims that the IJ's reliance on the 2005 elections, where the Democratic Party won a majority of seats in the National Parliament, was erroneous because it does not indicate a fundamental change which vitiates his well-founded fear. Uruci relies on Fergiste v. INS, 138 F.3d 14, 20 (1st Cir.1998), arguing that we have recognized that a change in regime from one which was responsible for the applicant's past persecution is not sufficient to automatically rebut a presumption of a well-founded fear of future persecution. Uruci thus contends that the fact that the Democratic Party gained power does not mean that the tensions with the Socialist Party, or its loyalists, were neutralized; the Socialist Party has not been rendered powerless or lost supporters, nor is there a reason to believe that its antagonism towards the Democratic Party will lessen.

In light of the other evidence in the record, this argument lacks force. While Uruci correctly states the general proposition from Fergiste—that regime change alone is insufficient to rebut the presumption at issue, 138 F.3d at 20—the IJ relied on other ample evidence in the record, including the State Department...