Bace v. Ashcroft
| Decision Date | 18 December 2003 |
| Docket Number | No. 02-3909.,02-3909. |
| Citation | 352 F.3d 1133 |
| Parties | Denada M. BACE, Petitioner, v. John ASHCROFT, United States Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Scott D. Pollock (argued), Pollock & Associates, Chicago, IL, for Petitioner.
George P. Katsivalis, Department of Homeland Security, Office of the District Counsel, Chicago, IL, Earle Wilson, Julia K. Doig (argued), Department of Justice, Civil Division, Immigration Litigation, Ben Franklin Station, Washington, DC, for Respondent.
Before CUDAHY, RIPPLE, and KANNE, Circuit Judges.
Denada M. Bace petitions for review of the Board of Immigration Appeals' (BIA's) rejection of her and her husband's application for asylum, withholding of removal and relief under the Convention Against Torture Act. We find that the BIA's decision to deny asylum was not supported by substantial evidence. We therefore vacate the BIA's order and remand for further proceedings.
Petitioner Denada Bace and her husband, Erion Bace, natives and citizens of Albania, entered the United States on January 16, 1999, using fake Italian passports. AR 407.1 Upon arriving in the United States, Mr. Bace indicated that he came seeking asylum for political reasons. AR 407, 409. On February 11, 1999, the Immigration and Naturalization Service (INS) initiated removal proceedings, charging them under the Immigration and Nationality Act (INA) § 212(a)(6)(C)(i) () and § 212(a)(7)(A)(i)(I) (). The Baces requested asylum under INA § 208, 8 U.S.C. § 1158, withholding of deportation under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3) and withholding of removal under the United Nations Convention Against Torture, 8 C.F.R. § 208.16(c)(3).
In 1995, Mr. Bace joined the Albanian Democratic Party. AR 350. In a national election, the Democratic Party's chairman, Sali Berisha, won the presidency and retained this position until 1997. In early 1997, the collapse of massive pyramid schemes and the resulting loss of many Albanians' life savings led to five months of chaos, violence and near anarchy. AR 425. An agreement of all the major political parties to hold early elections and the formation of a government of national reconciliation, as well as the creation of a multinational protection force, brought about sufficient public order to conduct elections. Id. In the national election, a new government led by the Socialist Party's Fatos Nano was installed. AR 426. Albania's Parliament, then dominated by the Socialist Party, proposed a new constitution, and a national constitutional referendum was conducted on November 22, 1998. AR 319, 366-67.
Mr. Bace was appointed by the Democratic Party to serve on a commission to supervise and certify the referendum. AR 319, 350. In this capacity, he observed incidents of multiple voting, voting by persons not registered and voter intimidation. AR 319, 351. While at the voting site, he complained to other members of the commission of the open fraud, but the Socialist Party representatives dismissed his complaints. AR 352, 380-82. Thus, Mr. Bace and the deputy chairman of the commission, who was also a representative of the Democratic Party, left the site without certifying the vote. AR 353, 382. Shortly after leaving, Mr. Bace was accosted by eight masked men in two cars. AR 438. They identified him as "the one who did not sign the report" and "the one who wants justice." AR 353-54, 382, 438. They then proceeded to beat Mr. Bace and cut him with a razor. AR 353-54.
Believing that those who attacked him were being protected by the state, Mr. Bace concluded that reporting the incident to the police would be futile and instead he wrote a complaint to the head of the Democratic Party. AR 354-55. However, on December 1, 1998, Mr. Bace was again beaten by a group of four masked persons on the streets of Tirana. The men said, "look at who's coming, the new politician, the hope of the country ... and be careful not to beat him very hard, because ... he might even become the president of Albania." AR 356, 438. After this second attack, Mr. Bace wrote a letter to another Democratic Party official, a former Chairman in the Albanian Parliament, again complaining of the situation and listing the names of people whom he thought were generally involved in government corruption. AR 357-58.
Two days later, on December 3, 1998, Mr. Bace was again beaten by masked persons who told him that he would "suffer the consequences" of mentioning names and becoming "too involved with the private lives of people." AR 359, 438. After this third beating, Mr. Bace wrote to the Democratic Party's new leader to complain. AR 360.
At about midnight on January 5, 1999, a number of masked and armed men dressed in black came to Mr. and Mrs. Bace's home where they lived with Mr. Bace's parents. AR 361. The intruders claimed that they "were representing the state" and sought to search for illegal weapons. Mr. Bace asked to see a search warrant but the men forced their way inside and one hit Mr. Bace in the stomach with the butt of a rifle. AR 395. Mr. Bace's father went to his aid but was struck down with a blow to the head. When Mr. Bace went to help his father, the masked men beat him. AR 396. At that point, two of the intruders set upon Mrs. Bace and raped her in front of her husband and her in-laws. AR 361-62, 396. During the rape, one of the men said to Mr. Bace, "you look for justice and we'll show you what justice is...." AR 396. Shortly after this last attack on Mr. Bace and his family, Mr. and Mrs. Bace acquired fake Italian passports, traveled to the United States and requested asylum. AR 378, 404-17, 440-46.
One month later, the INS initiated removal proceedings against the Baces. After hearing testimony from both Mr. and Mrs. Bace, the Immigration Judge (IJ) denied their requests for relief from removal and ordered them removed to Albania. AR 316-27. The IJ made only three relevant findings:
(1) The evidence does not lead to the conclusion that any of the alleged attacks were politically motivated on account of any of the letters which the male respondent sent to various Democratic Party officials after each incident, or to support his belief of complicity between the Democratic Party and the Socialist Party. Furthermore, the identities of the various alleged attackers has not been established so as to conclude that the respondents have an objectively reasonable fear of persecution from either political party.
(2) All of the alleged incidents occurred within a one-and-a-half month time frame in Tirana. The respondents have thus not addressed the issue of internal relocation elsewhere. (Citations omitted).
(3) The respondents have submitted no supporting documentation concerning present-day Albania's political landscape so as to support any of their generalized assertions concerning country conditions.
AR 324-35. The IJ's opinion also seems to rely heavily on a State Department report which indicated, in part, that in Albania "[t]he settling of accounts persist (sic), but individuals are rarely targeted for mistreatment on political grounds." App. at 8 (emphasis added). The BIA affirmed without opinion in an order dated October 4, 2002.2 On November 4, 2002, the Baces' attorney filed a petition for review of the decisions below, which omitted Mr. Bace from the petition. According to the Baces, this was an inadvertent omission. On March 19, 2003, the Baces, through a newly retained attorney, filed motions to reopen with the BIA, attaching more recent evidence of persecution against the Bace family and documentation of country conditions. AR 7-275. On March 28, 2003, the BIA denied the motions to reopen as untimely filed. AR 1-4. As the Baces do not appeal the denial of the motions to reopen, we have not considered this new evidence.
As a preliminary matter, we must decide who are the proper parties to this appeal. Due to what according to the petitioners was an inadvertent error on the part of their former counsel, Mr. Bace's name was left off their timely filed petition. Although the INS concedes that Mr. and Mrs. Bace are similarly situated, it argues that Mr. Bace has waived his right to appeal. See Brief of Respondent at 2 n. 2. Even if Mr. Bace were not a proper party to this appeal, however, the ultimate outcome would be the same because under 8 U.S.C.A. § 1158(b)(3)(A), "[a] spouse or child ... of an alien who is granted asylum under this subsection may, if not otherwise eligible for asylum under this section, be granted the same status as the alien if accompanying, or following to join, such alien." See Tsevegmid v. Ashcroft, 336 F.3d 1231, 1233 n. 2 (10th Cir.2003) (). Therefore we decline to take a formalistic view of the petition in this case, and we find that Mr. Bace's appeal is encompassed within his wife's. See, e.g., Fed.R.App.P. 3(c)(4) ().
This court has jurisdiction to review the order of the BIA to deny asylum under 8 U.S.C. § 1252(a)(1). We review the BIA's factual determinations under the highly deferential substantial evidence standard. See Tamas-Mercea v. Reno, 222 F.3d 417, 422 (7th Cir.2000); Petrovic v. INS, 198 F.3d 1034, 1037 (7th Cir.2000). We may not reverse the BIA's determination simply because we believe it was wrongly decided, but rather we must be compelled by the evidence to reach that conclusion. Tamas-Mercea, 222 F.3d at 422; Bradvica v. INS, 128 F.3d 1009, 1012 (7th Cir.1997); Anton v. INS, 50 F.3d 469, 472 (7th Cir.1995).
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