Gjetani v. Barr

• Decision Date: 30 July 2020
• Docket Number: No. 18-60827,18-60827
• Citation: 968 F.3d 393
• Parties: Xhino GJETANI, Petitioner, v. William P. BARR, U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

968 F.3d 393

Xhino GJETANI, Petitioner,

v.William P. BARR, U.S. Attorney General, Respondent.

No. 18-60827

United States Court of Appeals, Fifth Circuit.

FILED July 30, 2020

Joshua E. Bardavid, Esq., New York, NY, for Petitioner

Patricia Elia Bruckner, Trial Attorney, Yanal H. Yousef, Trial Attorney, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent

Before Dennis, Southwick, and Ho, Circuit Judges.

James C. Ho, Circuit Judge:

Xhino Gjetani, an Albanian citizen, seeks asylum on the ground that members of his country's Socialist Party threatened to kill him three times, and physically attacked him on one of those occasions, due to his support for the Albanian Democratic Party. What they did to him is repugnant. No person should have to endure what he suffered. But that does not entitle him to asylum under our laws. Our Nation's immigration policy is determined by the political branches, not the courts.

Congress has made clear that asylum is reserved for people who are the specific targets of "persecution." That means a systematic, sustained pattern of assaults or other acts of oppression—not individual or even a handful of assaults or threats. Furthermore, Congress has vested broad discretion in the Executive Branch to make asylum determinations, and instructed courts to give significant deference to Executive decisions.

That deference is required here. Gjetani suffered three threats and one attack during a short period of time. Had those incidents continued, he might very well have stated a case of persecution. But he experienced no further threats or attacks for the following six months, before he decided to leave Albania. Based on the record before them, both the Immigration Judge and the Board of Immigration Appeals concluded that these facts did not amount to persecution. Our precedents leave us no choice but to defer to that Executive Branch determination. Accordingly, we deny the petition for review in part and dismiss the petition in part.

I.

Gjetani is an Albanian national and a supporter of the Albanian Democratic Party. While in Albania, he was, according to his testimony, threatened three times and assaulted once on account of his political beliefs by members of the rival Socialist Party.¹

The first time he was threatened, on June 15, 2017, Gjetani and his friends were publicly carrying flags for the Democratic Party, when they encountered members of the Socialist Party. The Socialist contingent confiscated their flags and threatened to kill Gjetani if he carried Democratic Party flags again. Gjetani attempted to file a report with the police, but was rebuffed.

Three days later, Gjetani was at home with his family when Socialist Party members came canvassing for votes. Upon learning that Gjetani and his family supported the Democratic Party, the Socialist Party members attacked Gjetani and his father. Gjetani suffered injuries to his left knee and toe. According to Gjetani, four men assaulted him and his father using a belt and a "sharp metal object." The Socialist Party members said they would kill Gjetani if he did not vote as directed. Gjetani went to the hospital, received stitches, and was discharged that day. He was not prescribed any pain medication.

A week later, on Election Day in Albania, Gjetani and his family were traveling to vote. They were confronted by Socialist Party members who demanded they vote for the Socialists or else face death.

Six months later, on December 20, 2017, Gjetani left Albania. He filed an application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). Gjetani explained that he feared he would be persecuted, beaten, and killed because of his political opinions if he returned to Albania.

The Immigration Judge (IJ) held an evidentiary hearing on June 4, 2018. The IJ concluded that these incidents did not constitute persecution. And although Gjetani had a subjective fear of future harm, the IJ found that his fear was not objectively reasonable. The IJ also denied relief under withholding of removal and the CAT.

The Board of Immigration Appeals (BIA) adopted and affirmed the IJ's decision and dismissed the appeal. Gjetani now seeks review in federal court.

II.

We generally review only the asylum decision of the BIA, although, as here, we will consider the IJ's decision if it influenced that of the BIA. See Wang v. Holder , 569 F.3d 531, 536 (5th Cir. 2009).

Asylum is available to a "refugee" at the discretion of the government. 8 U.S.C. § 1158(b)(1). A "refugee" is "any person ... who is unable or unwilling to return to ... [his] country because of persecution or a well-founded fear of persecution on account of [a protected ground]." Id. § 1101(a)(42). To establish eligibility for asylum, Gjetani was required to demonstrate either past persecution or a well-founded fear of future persecution. See 8 C.F.R. § 208.13(b). But even proving eligibility "does not automatically entitle a refugee to asylum." Chen v. Gonzales , 470 F.3d 1131, 1135 (5th Cir. 2006). Federal law makes clear that "the Attorney General's discretionary judgment whether to grant [asylum] relief [to a refugee] shall be conclusive unless manifestly contrary to the law and an abuse of discretion." 8 U.S.C. § 1252(b)(4)(D).

As Gjetani acknowledges, "[w]e use the substantial evidence standard to review the IJ's factual conclusion that an alien is not eligible for asylum." Zhao v. Gonzales , 404 F.3d 295, 306 (5th Cir. 2005). Under this deferential standard, we will grant a petition for review only when the record evidence "compels" a conclusion contrary to the agency's determination. Id. (citing INS v. Elias–Zacarias , 502 U.S. 478, 481 n.1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) ). "The applicant has the burden of showing that the evidence is so compelling that no reasonable factfinder could reach a contrary conclusion." Chen , 470 F.3d at 1134 (emphasis added). After all, Congress has declared that "administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B).

Moreover, our circuit precedents (which we are, of course, dutybound to follow) make clear that we use the "substantial evidence" standard, even when the agency determines the alien is credible and accepts his version of the facts. See , e.g. , Tamara-Gomez v. Gonzales , 447 F.3d 343, 347 (5th Cir. 2006) ("[r]eviewing these findings under the substantial evidence standard" when an alien was deemed "credible" and " ‘accepting his account’ " of the facts).²

A.

First, some preliminary procedural issues. Gjetani argues that the IJ used the wrong legal standard in evaluating past persecution, and that the IJ's persecution finding failed to sufficiently analyze the extremity of the harm he suffered in light of the entire record. Neither of these claims was raised before the BIA. Gjetani has thus failed to exhaust his administrative remedies as to those claims. We therefore lack jurisdiction to consider them. See Omari v. Holder , 562 F.3d 314, 318 (5th Cir. 2009) ("Petitioners fail to exhaust their administrative remedies as to an issue if they do not first raise the issue before the BIA."). These claims are dismissed.³

B.

Gjetani contends that the attack and death threats against him amounted to persecution, and that the BIA erred in concluding otherwise.⁴

Persecution is often described in the negative: It is not harassment, intimidation, threats, or even assault. Persecution is a specific term that "does not encompass all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional." Majd v. Gonzales , 446 F.3d 590, 595 (5th Cir. 2006) (quoting Al–Fara v. Gonzales , 404 F.3d 733, 739 (3rd Cir. 2005) ). Persecution requires more. As our distinguished colleagues from courts of appeals across the country have elaborated, it has the quality of a sustained , systematic effort to target an individual on the basis of a protected ground. See Bocova v. Gonzales , 412 F.3d 257, 263 (1st Cir. 2005), superseded in unrelated part by 8 C.F.R. § 1240.26(i) (noting persecution is characterized as "mistreatment [that] can be said to be systematic rather than reflective of a series of isolated incidents"); Lie v. Ashcroft , 396 F.3d 530, 537 (3rd Cir. 2005), superseded in unrelated part by 8 U.S.C. § 1158(b)(1)(B)(i) (holding a "pattern or practice" of persecution requires it be "systemic, pervasive, or organized") (citation omitted); Baharon v. Holder , 588 F.3d 228, 232 (4th Cir. 2009) (finding "[a] key difference between persecution and less-severe mistreatment is that the former is ‘systematic’ while the latter consists of isolated incidents"); Wijono v. Gonzales , 439 F.3d 868, 874 (8th Cir. 2006) (holding "persecution of [a] group must be ‘systemic, pervasive, or organized’ ") (citation omitted). See also Woldeyes v. Ashcroft , 83 F. App'x 586, 588 (5th Cir. 2003) (per curiam) (finding no persecution absent "evidence of systematic persecution by the government").

So even those subject to brutal physical attack are not necessarily victims of "persecution." Courts have condemned all manner of egregious and even violent behavior while concluding they do not amount to persecution. See , e.g. , Singh v. Barr , No. 19-60150, 818 Fed.Appx. 331, 334–35 (5th Cir. June 19, 2020) (per curiam) (no persecution when an individual was twice beaten, including once until unconscious and resulting in a swollen shoulder and legs); Venturini v. Mukasey , 272 F. App'x 397, 402–03 (5th Cir. 2008) (per curiam) (no persecution when an individual was beaten twice and hospitalized for bruises, a broken rib, trouble breathing from tear gas, and overnight hospitalization); Rojas v. INS , 937 F.2d 186, 188 (5th Cir. 1991) (per curiam) (no persecution when an individual was "arrested, beaten, and tortured"); see also Reyes-Morales v. Gonzales , 435 F.3d 937, 942 (8th Cir. 2006) (no persecution when an...