Demiraj v. Holder
| Decision Date | 11 January 2011 |
| Docket Number | No. 08–60991.,08–60991. |
| Parties | Rudina DEMIRAJ; Rediol Demiraj, Petitioners,v.Eric H. HOLDER, Jr., U.S. Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
OPINION TEXT STARTS HERE
Yvette Marie Mastin (argued), Houston, TX, for Petitioners.Jennifer Raquel Khouri (argued), Tangerlia Cox, Thomas Ward Hussey, Director, U.S. Dept. of Justice, OIL, Washington, DC, Sandra M. Heathman, U.S. Citizenship & Imm. Services, Houston, TX, for Holder.Petitions for Review of Orders of the Board of Immigration Appeals.Before BARKSDALE, DENNIS and HAYNES, Circuit Judges.HAYNES, Circuit Judge:
Rudina Demiraj and her son, Rediol Demiraj, petition for review of the decision of the Board of Immigration Appeals (“BIA”) denying their applications for asylum, withholding of removal, and protection under the Convention Against Torture. The petitioners, who are Albanian nationals, are the wife and son of Edmond Demiraj, a material witness in the United States' prosecution of Bill Bedini. While conceding removability, the petitioners contend that they reasonably fear reprisal from Bedini and his associates if they are returned to Albania.
While the petitioners have assembled competent record evidence of the risks they may face upon returning to Albania, we, like the Immigration Judge (“IJ”) and the BIA, nevertheless conclude that those concerns do not entitle them to the relief they seek under the Immigration and Nationality Act. We therefore DENY the petition for review.
Rudina Demiraj and her minor son, Rediol, entered the United States without inspection in October 2000. Mrs. Demiraj timely filed an application for asylum, withholding of removal, and protection under article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Convention Against Torture”), Dec. 10, 1984, S. Treaty Doc. No. 100–20, 1465 U.N.T.S. 85, 113. Mrs. Demiraj named Rediol as a derivative beneficiary of her application. In her application, filed on September 28, 2001, and refiled as corrected on November 19, 2001, Mrs. Demiraj asserted that she was entitled to the relief requested because of her and her family's political involvement in opposing Albania's former communist regime and current socialist party and consequent fear of reprisal and torture in Albania.1 On December 27, 2001, the Immigration and Naturalization Service issued Mrs. Demiraj and her son a notice to appear, charging her with removability; after a hearing before an IJ in 2002, Mrs. Demiraj and her son were denied all relief and ordered removed. Mrs. Demiraj appealed to the BIA, claiming that the court's interpreter was ineffective; the BIA dismissed the appeal in October 2003.
In February 2004, the BIA allowed Mrs. Demiraj to reopen her case based on changed circumstances. After the IJ's initial disposition of Mrs. Demiraj's case, Mr. Demiraj was shot in Albania by Bill Bedini, an Albanian wanted in the United States for human smuggling.2 Mr. Demiraj had been identified by the United States as a material witness against Bedini, but Mr. Demiraj never actually testified against Bedini because Bedini fled to Albania. After Mr. Demiraj was deported to Albania, Bedini kidnaped, beat, and shot Mr. Demiraj because of his cooperation with the United States' efforts to prosecute Bedini. After Mr. Demiraj recovered from the shooting, local police in Albania took his statement but intimated that they would not investigate the crime. Bedini threatened Mr. Demiraj again, and he fled to the United States. Mr. Demiraj was granted withholding of removal in a separate proceeding.3 During the same time period, two of Mr. Demiraj's nieces were also kidnaped by Bedini and his associates and trafficked to Italy. After escaping, the nieces fled to the United States and were granted asylum.
These new facts, along with evidence of the interfamilial “blood feud” culture in Albania, were presented to the IJ following the BIA's order to reopen Mrs. Demiraj's proceedings. The IJ credited all of the testimony presented by Mrs. Demiraj but found nevertheless that she was not entitled to any of the relief she sought. The IJ therefore ordered Mrs. Demiraj and her son deported to Albania. The BIA dismissed the appeal in November 2006, adopting and affirming the decision of the IJ. Mrs. Demiraj petitioned this court for review, but before we issued a decision, the Attorney General moved for voluntary remand to the BIA for reconsideration in light of the Supreme Court's intervening decision in Gonzales v. Thomas, 547 U.S. 183, 126 S.Ct. 1613, 164 L.Ed.2d 358 (2006). We granted that motion and remanded. Demiraj v. Gonzales, No. 06–61125, 2007 WL 7315791, *1 (5th Cir. June 18, 2007).
On remand, the BIA applied Thomas but again dismissed the appeal in October 2008. Mrs. Demiraj filed a second petition for review with this court and moved to reconsider before the BIA, offering additional evidence that another of Mr. Demiraj's nieces had been granted asylum in the United States after Bedini kidnaped her and told her she would “pay” for the actions of her “sisters and her uncle.” We stayed proceedings until the BIA denied the motion to reconsider in July 2009; Mrs. Demiraj also filed a third petition for review of the order denying reconsideration.
Mrs. Demiraj's petitions for review of the BIA's October 2008 decision on remand and of its July 2009 denial of reconsideration were timely filed. We have jurisdiction under 8 U.S.C. § 1252(b) and (d).
The BIA's interpretation of statutory and regulatory provisions that determine whether a petitioner is statutorily eligible for relief from removal is an issue of law that we review de novo. See Ontunez–Tursios v. Ashcroft, 303 F.3d 341, 348 (5th Cir.2002) (); Shaikh v. Holder, 588 F.3d 861, 863–64 (5th Cir.2009) (); Efe v. Ashcroft, 293 F.3d 899, 906–07 (5th Cir.2002) (). In that de novo review, we “afford considerable ‘deference to the BIA's interpretation of immigration statutes unless the record reveals compelling evidence that the BIA's interpretation is incorrect.’ ” Shaikh, 588 F.3d at 863 (quoting Mikhael v. INS, 115 F.3d 299, 302 (5th Cir.1997)).
We review the BIA's underlying findings of fact “for substantial evidence, which ‘requires only that the BIA's decisions be supported by record evidence and be substantially reasonable.’ ” Shaikh, 588 F.3d at 863 (); see also 8 U.S.C. § 1252(b)(4)(B). Where, as here, the BIA's decision depended in large part on the factual findings of the IJ, we review the IJ's findings under this same standard to the extent that they influenced or were relied upon by the BIA. See Chun v. INS, 40 F.3d 76, 78 (5th Cir.1994).
Mrs. Demiraj and her son asserted three grounds for relief from removal before the IJ and the BIA: (1) asylum, (2) withholding of removal based on a probability of persecution, and (3) protection under the Convention Against Torture. The IJ and the BIA ruled that the petitioners were ineligible for any of the three forms of relief. Asylum and withholding of removal based on a probability of persecution are closely related, and the BIA found the petitioners statutorily ineligible for relief under both for the same reason; we therefore address those claims together.4
The BIA found the petitioners ineligible for asylum or withholding of removal because, even crediting all of the petitioners' evidence, Mrs. Demiraj and her son could not demonstrate that any persecution they might suffer in Albania was “on account of” their membership in the Demiraj family within the meaning of the statute and regulation. An alien who is otherwise subject to removal is eligible for discretionary asylum if the alien demonstrates that she is a “refugee” as defined under the Immigration and Nationality Act (“INA”). 8 U.S.C. § 1158(b)(1)(A); see also 8 C.F.R. § 1208.13(b). The statute in turn defines “refugee” in relevant part as a person who is unable or unwilling to return to her home county “because of persecution or a well-founded fear of persecution on account of ... membership in a particular social group ....” 8 U.S.C. § 1101(a)(42)(A). Similarly, an alien may obtain withholding of removal if she proves that her “life or freedom would be threatened in th[e] country [to which removal is ordered] because of the alien's ... membership in a particular social group ....” 8 U.S.C. § 1231(b)(3)(A). The petitioners argue that they would be persecuted in Albania by Bedini “on account of” their membership in a particular social group, namely, the Demiraj family. The BIA, in its order after voluntary remand, agreed with the petitioners that the “Demiraj family” could constitute a “particular social group” within the meaning of the asylum and withholding of removal statutes, and the government does not dispute that conclusion.
The core of this case instead is the question of whether Mrs. Demiraj's evidence showed that she reasonably feared persecution or likely would be persecuted “on account of” her family membership.5 See Thuri v. Ashcroft, 380 F.3d 788, 792 (5th Cir.2004). The IJ and the BIA concluded that the evidence did not establish this requisite connection between her family membership and the identified persecution by Bedini and his associates. The only dispute between the parties is whether the facts as found by the IJ constitute, as a matter of law, proof of persecution “on account of” Mrs. Demiraj's membership in the Demiraj family or not.
After considering the record and the case law, the BIA explained its conclusion thus:
Nexus may be shown ... where there is a desire [by the alleged or...
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