Gilaj v. Gonzales

Citation408 F.3d 275
Decision Date09 May 2005
Docket NumberNo. 03-4307.,03-4307.
PartiesLuce GILAJ and Luigj Gilaj, Petitioners, v. Alberto GONZALES, Attorney General, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

ARGUED: Richard A. Kulics, Immigration Law Center, Birmingham, Michigan, for Petitioners. Alison R. Drucker, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF: Richard A. Kulics, Immigration Law Center, Birmingham, Michigan, for Petitioners. Emily A. Radford, Jennifer Keeney, Papu Sandhu, United States Department of Justice, Washington, D.C., for Respondent.

Before: MOORE and GILMAN, Circuit Judges; WEBER, District Judge.*



Mrs. Luce Gilaj and Mr. Luigj Gilaj petition this court for review of a decision by the Board of Immigration Appeals ("BIA") denying their requests for asylum, withholding of removal, and protection under the Convention Against Torture. We have jurisdiction to hear this petition pursuant to the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1252. For the reasons discussed below, we REVERSE the determination of the BIA that petitioners failed to establish eligibility for asylum on the basis of past persecution, and we REMAND the matter to the BIA for further proceedings.

I. Background
A. Petitioners' requests for relief

Petitioners are husband and wife and citizens of Albania. They entered the United States together on or about November 2, 2000, as non-immigrant visitors for pleasure with authorization to remain in the United States until May 1, 2001. Petitioners remained in the country beyond that time. The Immigration and Naturalization Service ("INS") commenced removal proceedings pursuant to § 237(a)(1)(B) of the INA, 8 U.S.C. § 1227(a)(1)(B). Petitioners conceded removability. On October 31, 2001, Luce Gilaj filed an application for asylum under § 208 of the INA, 8 U.S.C. § 1158, and for withholding of removal under § 241(b)(3) of the INA, 8 U.S.C. § 1231(b)(3). Her application is also considered by the INS to be a request for protection under the Convention Against Torture. Mrs. Gilaj bases her requests for relief on a claim of past persecution or well-founded fear of future persecution on account of religion, membership in a particular social group, and political opinion. Luigj Gilaj seeks asylum and/or withholding of removal derivatively through Mrs. Gilaj.

B. The hearing on the merits

A hearing on the merits of petitioners' claims was held before an Immigration Judge (IJ) on April 29, 2002. At the asylum hearing, Mrs. Gilaj testified to a series of events beginning in 1997 and continuing through October of 2000 that she alleges proved a well-founded fear of persecution that would allow her to obtain asylum in the United States. The IJ determined that Mrs. Gilaj was generally credible. The testimony that she gave at the hearing is set forth below.

Mrs. Gilaj was active in the Democratic Party in Albania before coming to the United States with her husband. In June of 1997, she was involved in the election campaign for the Democratic Party. She went through the villages in her region to campaign for Democratic Party candidates. She was threatened by the police during this period, as were her husband and son. Her husband was wounded in the neck with a knife during a physical confrontation with Socialists on election day, June 29, 1997.

She remained active in politics after the June 1997 election. In September of 1998, the police searched her home for weapons. She was beaten during the search but suffered no serious injury. When she and her family asked the police for a search warrant, they replied that they did not need a warrant and that they could enter the house by force because they were Socialists who were going to make all of the Democrats suffer. At this time, her son was arrested, sent to jail for two days, and beaten.

The next incident occurred in early April of 2000. Mrs. Gilaj was the co-organizer of an anti-government protest in the main plaza of the town of Shkoder. She had worked to increase the number of people who attended the demonstration by going around her village, talking to the women, and encouraging them to attend the demonstration. She spoke at the demonstration. Nobody was arrested at the demonstration, but that evening she and her family received phone calls at home from unidentified people threatening that the family would "pay dearly" for her speech at the demonstration.

Several days after the protest, on April 11, 2000, two secret police officers came to the Gilaj home to question her about her work in the Democratic Party. Mr. Gilaj was not home at the time. The police started to threaten her and to ask about her son's address in the United States. The police made "verbal threats like we gonna (sic) kill you right now, we gonna (sic) suffocate you right now." They searched the house for weapons, tore up some of her notes, and "started to provoke [her] as a woman," an apparent reference to a sexual assault or molestation. The police were touching her when two relatives came into the house. The police left after having been in the house for approximately thirty minutes. She was not arrested, jailed, or beaten as a result of this incident.

Another incident occurred on October 5, 2000. On that date, in the town of Koplik, thousands of people participated in a demonstration where Democratic Party members were protesting what they regarded as manipulation of elections by the Socialists. Mrs. Gilaj was one of the demonstrators in the crowd. She was arrested and jailed for two days. She was denied food during her detention. Mrs. Gilaj was one of twelve to fourteen people in her cell, and she heard later that fifty to sixty people had been arrested. Mrs. Gilaj was beaten by the police during this time. She sustained bruises but no serious injuries. While she was in jail, the police grabbed a cross from around her neck, threw it on the floor, told her to step on it, slapped her face when she bent over to retrieve it, and said that the Muslim majority would "disappear" all Catholics from Albania. After being released from jail, Mrs. Gilaj went to the health center in her village and received pills for the pain resulting from the beating.

At the demonstration leading to Mrs. Gilaj's detention, Mr. Gilaj sustained a leg wound when the police, who were beating the protestors, hit him with their boots. Although Mrs. Gilaj testified that her husband was not arrested at this time, Mr. Gilaj testified that he was arrested and jailed for two days.

After Mrs. Gilaj's release from jail, she went home and received a number of phone calls threatening to make her and her husband "disappear." Shortly thereafter, she arrived in the United States with her husband after obtaining a visitor's visa. Mrs. Gilaj believes that, if she were required to return to Albania, she would be persecuted, and perhaps killed, as a consequence of her activities prior to leaving Albania.

C. The IJ's decision

At the conclusion of the hearing, the IJ denied the application for asylum, withholding of removal pursuant to § 241(b)(3) of the INA, and protection under the Convention Against Torture. The IJ found petitioners' testimony to be generally credible, despite certain discrepancies. The IJ determined that there was no dispute that Mrs. Gilaj had been active with the Democratic Party in Albania. The IJ found, however, that when the incidents that had occurred as a result of her activities are considered in the aggregate, they do not rise to the level of persecution. The IJ therefore concluded that Mrs. Gilaj had not established either persecution or a well-founded fear of persecution on the basis of her political activity, and that it followed from this finding regarding asylum that Mrs. Gilaj had not met the burden of establishing eligibility for withholding of removal pursuant to § 241(b)(3). The IJ further determined that Mrs. Gilaj had not established eligibility for protection under the Convention Against Torture because she had not proved that it was "more likely than not" that she would be tortured if she were forced to return to Albania.

D. The BIA's decision

Mrs. Gilaj appealed to the BIA from the IJ's denial of her application. The BIA affirmed the IJ's decision for the reasons stated therein and dismissed the appeal. The BIA summarily stated that it concurred in the IJ's determination that Mrs. Gilaj had not demonstrated that she had suffered harm sufficiently serious as to constitute persecution within the meaning of the INA. The BIA made one specific comment in this regard, noting that Mrs Gilaj had not specified in her application, in her testimony, or on appeal how the men who came to her house on April 11, 2000, had attempted to "provoke" her as a woman. Second, the BIA addressed Mrs. Gilaj's argument that the IJ had erred in not offering her an opportunity to make a closing argument at the conclusion of the hearing on the merits. The BIA acknowledged that parties generally should be allowed to make closing arguments. The BIA found, however, that even if the IJ had erred in this regard, the error may be considered to be harmless. The BIA noted that Mrs. Gilaj had specifically rested her case, through counsel, without asking to make a closing argument. The BIA also determined that Mrs. Gilaj had not explained with any particularity what arguments she would have presented in a closing argument or how the outcome of her case might have been different had a closing argument been made.

E. Petitioners' objections

Petitioners argue in support of their petition for review that the IJ and BIA misinterpreted the definition of "persecution," improperly considered, disregarded, and/or distorted substantial evidence submitted in support of the application, and made a decision against the great weight of the evidence. P...

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