Mark v. Holder

• Citation: 649 F.3d 72
• Decision Date: 11 August 2011
• Docket Number: No. 10–1109.,10–1109.
• Parties: Mark and Nilda PRECETAJ, Petitioners,v.Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

649 F.3d 72

Mark and Nilda PRECETAJ, Petitioners,
v.
Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 10–1109.

United States Court of Appeals, First Circuit.

Heard Feb. 10, 2011.Decided Aug. 11, 2011.

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Jeffrey B. Rubin with whom Law Offices of Jeffrey B. Rubin, P.C. was on brief for petitioners.Andrea N. Gevas, Civil Division, Department of Justice, with whom Tony West, Assistant Attorney General, David M. McConnell, Deputy Director, and Stacy S. Paddack, Senior Litigation Counsel, were on brief for respondent.Before LYNCH, Chief Judge, BOUDIN and THOMPSON, Circuit Judges.BOUDIN, Circuit Judge.

Mark and Nilda Precetaj—husband and wife—are citizens of Albania and seek review of administrative decisions denying their application for asylum and ordering their removal. Nilda Precetaj entered the United States on May 5, 2002, on a temporary tourist visa that expired on November 4, 2002. Mark Precetaj entered the United States on July 26, 2002, using a false Italian passport.

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In January 2003, Mark Precetaj filed an application for asylum and withholding of removal that listed Nilda Precetaj as a derivative beneficiary. Later, Nilda Precetaj applied for asylum, withholding of removal, and protection under the United Nations Convention Against Torture. See 8 C.F.R. §§ 1208.16–18 (2011). A series of hearings were held between 2005 and 2008, and Mark Precetaj provided evidence of the family's experience in Albania in the 1990s and up to 2002.

Albania is a former communist country in the Balkans whose dictatorial regime collapsed in the early 1990s; the collapse was followed by a long period of economic crisis and political upheaval. In the late 1990s, the situation began to stabilize and today the country has a democratic constitution and holds regular elections.

In the past decade or so, the Socialist Party and the Democratic Party have dominated politics in Albania. After a reconciliation in 1997, new elections were held and the Socialist Party established control through a coalition. Then, in 2005, the Democratic Party leader became Prime Minister after his party won new elections held with what the State Department Asylum Profile called “a noticeably improved environment with little of the violence or intimidation that marred previous elections.”

The experiences to which Mark Precetaj testified began over a decade before this 2005 election. After reporting the presence of state agents at a student Democratic Party demonstration in 1991, Mark Precetaj suffered threats and physical assaults. He attributed this in part to his support for the party—he was not a member of it—but also to fear that he might reveal crimes by Socialist Party members then in power that he learned of through his employment at the Albanian Supreme Court.

Initially, Mark Precetaj was merely threatened in telephone calls and told to keep his mouth shut. Thereafter, he was threatened and then beaten in 1993 by three men wearing masks. Although badly bruised, he did not report the incident to the police, knowing that they were infiltrated by Socialist Party members. In June 1997, he was threatened outside his home and told to expect retribution when the Socialist Party won the election, which it did.

In 1998, on the fifth anniversary of his beating, his car was set on fire in front of his home. In 1999, both of his children were targeted; his son was kidnapped once and beaten twice, and his daughter was kidnapped and held for three days, during which time she was assaulted and raped. After his daughter's abduction, state security agents beat up Mark Precetaj again. With his encouragement, his children fled to the United States and have since been granted asylum.

In June 2001, Mark Precetaj was attacked and beaten by a man who repeated the same threats. When he reported this to the Democratic Party, he received another telephonic threat. In May 2002, he received a further telephone call to look outside for a present; doing so, he found at the door an envelope containing two bullets. His wife then fled to the United States; lacking a visa, he stayed behind but joined her later.

At the end of a series of hearings, the Immigration Judge (“IJ”) on July 7, 2008, delivered an oral decision denying Mark and Nilda Precetaj relief. The IJ said that Mark Precetaj's testimony was credible and internally consistent, but described the incidents only in general terms: the IJ said that Mark Precetaj was “beaten on at least two occasions” and pointed out that he did not seek medical treatment or report

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the incidents to the police. The IJ also noted that (as of 2008) the Democratic Party had regained power in Albania.

There follow two sentences of analysis that comprise the heart of the decision:

[T]he Court will and hereby does deny his application for asylum as the harm suffered by the respondent himself does not, in the Court's opinion, rise to the level of past persecution. Even if the Court were to find otherwise, alternatively, the Court finds that circumstances in Albania have changed to the extent that the respondent would no longer have a well-founded fear of future persecution due to the fact that Democratic party is now the party in power in the country of Albania.

The IJ then said that any request for withholding of removal also failed because this relief requires an even higher probability of future persecution than the asylum standard; and any claim under the Convention Against Torture also failed, there being no evidence that Mark Precetaj would be tortured. In the hearings the IJ had taken note of an alternative form of relief available even where future persecution is not a threat—discretionary “humanitarian asylum” based on past persecution alone—but this was not separately discussed in the IJ's decision.

On review, the Board of Immigration Appeals (“the Board”) affirmed. It upheld the finding of no past...