Mema v. Gonzales

• Decision Date: 11 January 2007
• Docket Number: No. 05-2570.,05-2570.
• Citation: 474 F.3d 412
• Parties: Ferdinant MEMA, Petitioner, v. Alberto R. GONZALES, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 412

474 F.3d 412

Ferdinant MEMA, Petitioner, v. Alberto R. GONZALES, Respondent.

No. 05-2570.

United States Court of Appeals, Seventh Circuit.

Argued February 21, 2006.

Decided January 11, 2007.

COPYRIGHT MATERIAL OMITTED

Isuf Kola (argued), Kola & Miceli, Bloomingdale, IL, for Petitioner.

Karen Lundgren, Department of Homeland Security, Office of the Chief Counsel, Chicago, IL, Hillel R. Smith (argued), Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before BAUER, KANNE, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

An immigration judge granted Spartak Mema political asylum in January 2002, and now his identical twin brother Ferdinant seeks that same protection. Ferdinant Mema (Ferdinant)¹, a native and citizen of Albania, was detained at Fort Lauderdale International Airport when he tried to enter this country with an illegitimate Italian passport. He seeks asylum claiming that he suffered persecution at the hands of Albanian authorities in retaliation for his and his family's association with the Democratic Party in Albania. After a hearing, an immigration judge denied Ferdinant asylum and withholding of removal, and the Board of Immigration Appeals (BIA) affirmed. We remand for consideration of relevant, probative evidence central to Ferdinant's claim that the immigration judge failed to consider the first time around.

Ferdinant, born in 1982, lived in Albania with his parents, his identical twin brother Spartak, his older brother Edmond, and Edmond's wife Suela. Edmond, Spartak, and Suela all fled Albania—Edmond in 1997, and the others in 1999—and later received asylum in this country based on the persecution they suffered as members of the Democratic Party of Albania and children of an activist leader with that Party. Ferdinant, on the other hand, left Albania for Greece in 1997, and lived there, without permission, doing a variety of odd jobs, before returning to Albania in 1999 and finally fleeing to this country in 2002.

At his hearing before the immigration judge, Ferdinant testified that his family members had been subject to persecution at the hands of government authorities in retaliation for their membership and participation in the Democratic Party in Albania and specifically, as retribution for activist and leadership roles assumed by Sabri Mema, Ferdinant's father.

In his supplement to his application for asylum, Ferdinant recalls several instances in which family members were singled out and harassed based on an affiliation with the Democratic Party or their relationship to Sabri Mema. For example, Ferdinant described an incident in 1998 when his identical twin brother Spartak was stopped by police officers on his way to a Democratic Party meeting. The officers detained Spartak for five or six hours, beat him and threatened him. Just a few weeks later, Sabri had a run-in with Socialist authorities while working as a poll watcher in an important election. After reporting voting irregularities, Sabri was detained, instructed to remain silent, and threatened with unspecified consequences. In defiance of the threats, Sabri reported his experiences to the Democratic Party which later filed a suit challenging the results of the election. Sabri received a summons to appear in court for the trial, but when he appeared the matter had been continued. According to Ferdinant, members of the Socialist Party had manipulated the court dates to garner time to strong-arm those who might testify against the Party in the suit. Indeed, Ferdinant explained, two days after his father, Sabri, was scheduled to testify, Albanian police arrested Sabri and brought him to the police station where officers issued threats in an attempt to influence his testimony.

Three weeks later, Spartak received a subpoena to appear at the prosecutor's office. When he arrived, he was detained, beaten, and told he would be prosecuted unless he convinced his father to alter his anticipated testimony. Spartak received a second subpoena the following month and again appeared at the prosecutor's office where officials accused him of giving false testimony on the earlier occasion. Again, officials beat him, threatened him, and accused him of disrupting the referendum vote.

Ferdinant's supplemental application also describes the events that pushed Spartak and Suela to flee for their safety. On April 23, 1999, Spartak received a summons to appear as a defendant in a criminal proceeding initiated by the Ministry of Internal Affairs. While Spartak awaited his court appearance, Suela Mema, Ferdinant and Spartak's sister-in-law, also received a subpoena to appear at the prosecutor's office. Once there, Suela refused orders to sign a document denouncing her father-in-law as a liar and troublemaker. Despite threats of criminal prosecution, Suela held firm. Although she was released on that day, a few days later, on May 10, 1999, she was arrested and taken to the prosecutor's office where officials again ordered her to sign the papers. When she refused, she was attacked, beaten, and raped.

Ferdinant, who had recently returned from Greece, went with the rest of his family to a hospital in Tirana to seek treatment for Suela. While the family was away, Albanian police destroyed the Mema home. In response to these events, the family decided that Spartak and Suela had to leave Albania. On May 19, 1999, the two left Albania, leaving Ferdinant behind to stay with their parents. Ferdinant went to stay with relatives to avoid further trouble, but Sabri's troubles continued, and it was not long before police arrested him again after speaking at a rally. This time they held him for four days.

The bulk of Ferdinant's claim of past persecution centers on the events of June 20, 2001. Ferdinant testified that on that day five masked police officers forced him into a car at gunpoint, took him to an abandoned house, and asked him why he had come back to cause trouble. According to Ferdinant, the officers repeatedly referred to him by his twin brother, Spartak's, name. When Ferdinant insisted that he was not Spartak the officers beat him. The masked men demanded that Ferdinant gather information about his father and other Democratic Party supporters and told Ferdinant to warn his father that if Sabri interfered with voting, Ferdinant would pay the price. After this, they continued to beat Ferdinant until he passed out.

Two days after the attack, Ferdinant testified, his father described his family's suffering at a pro-democratic rally. The following day, the family received word that the police were looking for Ferdinant. That news sent Ferdinant and his mother into hiding in a small town in Northern Albania. Ferdinant's father continued with his activities and even decided to run for office in the local elections, but changed his mind after March 10, 2002, when he was approached by several officers who had a warrant for Ferdinant's arrest. Meanwhile, Ferdinant and his mother, having been tipped off that the police had come looking for Ferdinant, moved to yet another small town until Ferdinant was able to secure passage out of Albania on May 25, 2002. He arrived at Fort Lauderdale International Airport on May 31, 2002.

After a hearing on November 20, 2002, the immigration judge issued an order denying Ferdinant's applications and ordering his removal to Albania. The BIA adopted and affirmed the decision of the immigration judge adding a few sentences describing why the immigration judge's credibility determination was supported by the record and noting that Ferdinant received due process of law. (R. at 2-3). Where the BIA affirms, adopts, and supplements, we review both the immigration judge's decision and any additional reasoning of the BIA. Giday v. Gonzales, 434 F.3d 543, 547 (7th Cir.2006). We must affirm the immigration judge's decision if it is supported by reasonable, substantial, and probative evidence on the record considered as a whole, and overturn it only if the record compels a contrary result. INS v. Elias-Zacarias, 502 U.S. 478, 481 & n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); Balliu v. Gonzales, 467 F.3d 609, 612 (7th Cir.2006).

In evaluating whether the record compels a contrary result, we must first determine how much attention to give to the accounts of the Mema family's struggles in Albania. Although Ferdinant's own participation in the Democratic party was not extensive, if his testimony is to be believed (more on that later), his father was an active and vocal agitator in the Democratic party, and his family suffered persecution at the hands of the Socialists as a result. On the one hand, our asylum laws ordinarily do not extend protection to persons merely because a family member has suffered persecution. Mabasa v. Gonzales, 455 F.3d 740, 746 (7th Cir.2006); Tamas-Mercea v. Reno, 222 F.3d 417, 424 (7th Cir.2000). On the other hand, asylum is available to persons who have been persecuted based on imputed political opinion, including situations where a persecutor attributes the political opinion of one or more family members to the asylum applicant. See, e.g., Nakibuka v. Gonzales, 421 F.3d 473, 478 (7th Cir.2005); Tolosa v. Ashcroft, 384 F.3d 906, 910 (7th Cir.2004); Ciorba v. Ashcroft, 323 F.3d 539, 542, 545 (7th Cir.2003); Iliev v. INS, 127 F.3d 638 642 (7th Cir.1997). To succeed on a claim of imputed political opinion, an applicant must show that her persecutors attributed a political opinion to her, Lwin v. INS, 144 F.3d 505, 509 (7th Cir.1998) and that this attributed opinion was the motive for the persecution. See Elias-Zacarias, 502 U.S. at 482-83, 112 S.Ct. 812. Sometimes this situation is described as persecution based on membership in a social group — i.e. the family group — but in either case the necessary proof is the same. Iliev, 127 F.3d at 642. Examples of persecution based on family membership abound in this circuit's case law. See, e.g., Nakibuka...