Hasalla v. Ashcroft, 03-2224.

• Decision Date: 12 May 2004
• Docket Number: No. 03-2224.,03-2224.
• Citation: 367 F.3d 799
• Parties: Besnik HASALLA; Floresha Hasalla; Aida Hasalla, Petitioners, v. John ASHCROFT, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

367 F.3d 799

Besnik HASALLA; Floresha Hasalla; Aida Hasalla, Petitioners, v. John ASHCROFT, Attorney General of the United States, Respondent.

No. 03-2224.

United States Court of Appeals, Eighth Circuit.

Submitted: April 15, 2004.

Filed: May 12, 2004.

COPYRIGHT MATERIAL OMITTED

Timothy E. Wichmer, argued, St. Louis, MO, for petitioner.

Shelley R. Goad, argued, Office of Immigration Litigation, Department of Justice, Washington, D.C., for respondent.

Before MORRIS SHEPPARD ARNOLD, MAGILL, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Besnik and Floresha Hasalla seek political asylum, withholding of removal, and relief under the Convention Against Torture (Convention). The Immigration Judge (IJ) denied relief on the grounds that they failed to prove a well founded fear of persecution because of political opinion, religion, or membership in a protected social group or entitlement to relief under the Convention. The Board of Immigration Appeals (Board) affirmed the IJ's order without opinion. The Hasallas petition for review.

Besnik and Floresha Hasalla, husband and wife, are citizens of Albania. They are members of the Christian Orthodox religion and the Democratic Party. The Hasallas have two daughters, Gentiana, who was granted asylum in 1998, and Aida, who is presently seeking asylum but whose claim has been remanded to the Board.¹

Besnik Hasalla was imprisoned from 1982 to 1986 by the Communist government in Albania because of his political beliefs and activities. During those years he was required to perform hard labor. He was also physically abused and denied contact with his family. Although he had been trained as an economist, Besnik only found work as a driver after leaving prison. When Communist rule ended in 1991, both Besnik and Floresha became active in the Democratic Party. The Democratic Party came to power nationally in 1992, and Besnik was named commissioner of a land redistribution board. The Socialist Party controlled the local government in Peqin where the Hasallas lived, however, and it won national control in late 1997.

The Hasallas' claims for relief focus principally on several incidents in 1995, 1997, and 1998. In 1995 they received threats against their daughters and their home if Besnik did not end his involvement with the Democratic Party. Besnik took steps to ensure the safety of his family, and the threats were not carried out. In April 1997 Besnik had a public argument with a member of the Socialist Party. Several days later he was shot in the arm by a masked man who called him by name and yelled "dog" at him. During this period Aida Hasalla was being repeatedly harassed and threatened by a Muslim group called the Loyals of Allah who disapproved of her western dress and makeup. One of them pointed a gun at Aida in late 1997 and said that someday Allah would punish her. After that incident Aida and Floresha went to stay with Besnik's mother in Kosovo. In July 1998 three men broke into the Hasalla home and asked Besnik where his wife and daughter were, tied him to a chair, and beat him. Besnik and Floresha decided to flee to the United States.

Besnik and Floresha Hasalla arrived in the United States on October 18 and December 6, 1998, respectively. Besnik Hasalla filed an application for asylum and withholding of removal and included Floresha as a derivative applicant. They were issued notices to appear May 5, 2000 and charged with entering the United States without valid entry documents. The Hasallas conceded removability and renewed their application for asylum, withholding of removal, and relief under the Convention. Their December 5, 2000 hearing before the IJ included testimony by Besnik and Aida Hasalla and a tender of testimony on behalf of Floresha.

The IJ reviewed the testimony and evidence in the record and found the Hasallas credible. The IJ found that Besnik's arrest and incarceration under the Communist regime in Albania evidenced past persecution on account of political opinion, but that conditions in the country had changed and the Communist Party was no longer in control. The Democratic Party was in power from 1992 to December 1997, and the Socialist Party controlled the government from December 1997 through the December 2000 hearing. The IJ observed, "These are clearly not the same Governments, with the same political philosophy that were in power at the time the respondent was incarcerated from 1982 to 1986.... the country conditions are fundamentally changed." The IJ concluded from the evidence that Besnik Hasalla had not met his burden of demonstrating a well founded fear of future persecution. See In re N-M-A-, 22 I. & N. Dec. 312 (B.I.A.1998) (asylum applicant has burden to show new source if there is no longer a well founded fear of persecution from original source).

The IJ evaluated the 1995, 1997, and 1998 incidents about which Besnik had testified. The IJ observed that the threats reported in 1995 must be viewed with "some skepticism" because the political conditions at that time would have provided Besnik "alternatives in relying upon the authorities to protect him." The claim that Besnik had been shot in the arm in April 1997 because of an argument with a Socialist Party member also had to be considered "with a certain degree of skepticism." The IJ found that Besnik had not established a cause and effect relationship between the two events, for there was no evidence from which to find that the assailant was the same person with whom Besnik had a dispute or that he was shot on account of his political opinion. The IJ found that the 1998 intrusion into Besnik's house was an isolated incident. Although the government had not prevented the intrusion, Besnik had not shown that it was unwilling to protect him. The IJ stated that "the asylum laws are not meant to remedy every government deficiency" and that the circumstances did not "make out a claim of persecution because of religion or because of political opinion."

Based on these findings and conclusions, the IJ denied Besnik and Floresha Hasalla asylum and withholding of removal because they had not established a well founded fear of persecution. The IJ also found that they had not established the requisite likelihood that they would be tortured if returned to Albania so their request for protection under the Convention was denied. The IJ granted voluntary departure.

The Hasallas appealed to the Board, which affirmed without opinion on April 15, 2003. The Hasallas timely filed a petition for review. They challenge the Board's decision to streamline the case by affirming summarily without opinion, especially in light of the remand of Aida's case. They also contend that the IJ erred in finding they would not face a well founded fear of persecution in Albania based on their political beliefs, membership in a particular social group, or religion. The Attorney General counters that the Board's decision to streamline was appropriate and that substantial evidence supports the IJ's findings that the Hasallas are ineligible for relief. Since the Board affirmed without opinion, we treat the IJ's decision as the agency's final determination for review. See Dominguez v. Ashcroft, 336 F.3d 678, 679 n. 1 (8th Cir.2003).

We review the denial of asylum and withholding of removal for an abuse of discretion, and use the substantial evidence standard for underlying factual findings. See Francois v. INS, 283 F.3d 926, 931 (8th Cir.2002). The IJ's factual determinations must be upheld if supported by reasonable, substantial, and probative evidence on the record considered as a whole. Id. (citing Tang v. INS, 223 F.3d 713, 718 (8th Cir.2000)). We are not at liberty to reweigh the evidence. Feleke v. INS, 118 F.3d 594, 598 (8th Cir.1997). Reversal of the IJ's decision is warranted only if the petitioner shows the evidence was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution. See INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); Kratchmarov v. Heston, 172 F.3d 551, 554 (8th Cir.1999).

The Attorney General may confer asylum on any refugee. 8 U.S.C. § 1158(b). A refugee is defined in the statute as an alien who is unwilling to return to his or her home country because of a well founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A). If past persecution is established, an alien will be presumed to possess a well founded fear of future persecution and the burden shifts to the government to show by a preponderance of the evidence that conditions in the applicant's country have changed to such an extent that the applicant no longer has a well founded fear of being persecuted if he or she were to return. See 8 C.F.R. § 1208.13(b)(1)(i) (2003); Perinpanathan v. INS, 310 F.3d 594, 598 (8th Cir.2002). The standard for mandatory withholding of removal under 8 U.S.C. § 1231(b)(3) is more demanding than that of asylum. The alien must show a "clear probability" that he or she will face persecution in the country to which he or she will be deported. See Regalado-Garcia v. INS, 305 F.3d 784, 788 (8th Cir.2002).

The Hasallas contend that their case was impermissibly streamlined because it does not meet the...