Ruzi v. Gonzales, 03-3146.

• Decision Date: 24 March 2006
• Docket Number: No. 03-3146.,No. 03-3147.,03-3146.,03-3147.
• Citation: 441 F.3d 611
• Parties: Mehmet Bardhyl RUZI, Petitioner, v. Alberto R. GONZALES,<SMALL><SUP>1</SUP></SMALL> Attorney General of the United States of America, Respondent. Zhaneta Ruzi; Mirta Ruzi, Petitioners, v. Alberto R. Gonzales, Attorney General of the United States of America, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 611

441 F.3d 611

Mehmet Bardhyl RUZI, Petitioner, v. Alberto R. GONZALES,¹ Attorney General of the United States of America, Respondent.

Zhaneta Ruzi; Mirta Ruzi, Petitioners, v. Alberto R. Gonzales, Attorney General of the United States of America, Respondent.

No. 03-3146.

No. 03-3147.

United States Court of Appeals, Eighth Circuit.

Submitted: December 15, 2005.

Filed: March 24, 2006.

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

Aviva L. Poczter, argued, Justice Department, Washington, DC (Mary Jo Madigan, Asst. U.S. Atty., Minneapolis, Mn, on the brief), for appellee.

Before MELLOY, COLLOTON, and BENTON, Circuit Judges.

BENTON, Circuit Judge.

Mehmet Bardhyl Ruzi, his wife, Zhaneta Ruzi, and his daughter, Mirta Ruzi petition for review of two final orders of the Board of Immigration Appeals ("BIA") denying their applications for asylum and withholding of removal. See 8 U.S.C. §§ 1158, 1231(b)(3). Having jurisdiction under 8 U.S.C. § 1252, this court affirms.

I.

A. Procedural Background

Mehmet Ruzi, a native and citizen of Albania, entered the United States with a 90-day visitor visa authorizing him to remain in the country until April 22, 1996. He overstayed the visa and lived here without authorization, eventually applying for political asylum and withholding of removal in June 1999. An Immigration Judge placed Mehmet in removal proceedings, charging him with overstaying his status.

Zhaneta and Mirta entered the United States from Albania on January 5, 1999, with fraudulent passports. They immediately requested political asylum. Mehmet is a derivative asylum applicant on Zhaneta's application. After passing credible-fear screenings, Zhaneta and Mirta were charged with entering the United States without valid entry documents and by misrepresentation. They admitted these charges before the Immigration Judge, but renewed their requests for asylum, withholding of removal, and relief under the Convention Against Torture. Mehmet's claims were later joined with Zhaneta's and Mirta's before the Immigration Judge, who determined that all three petitioners were ineligible for relief.

B. Factual Background

Mehmet Ruzi alleges that, before leaving Albania in 1995, he was persecuted by two different political groups — the Socialist Party and the Democratic Party. He testified that, in 1991, the Socialists began detaining and beating him after he became an active member of the newly-formed Democratic Party. In January, he was arrested, detained, and beaten for two days by Socialist police officers following a pro-democracy demonstration in Berat. On March 31, he was again beaten by Socialist police who used clubs and rifle butts to break up a 10-day hunger strike staged by Democrats following election of a Socialist Prime Minister. Finally, in January 1992, Mehmet was detained by Socialist police while campaigning for the special election of a Prime Minister. He testified that officers stopped his vehicle, threatened to kill him for "going beyond the limits" with the Democratic Party, and later beat him with clubs and machine gun butts until he was unconscious. Shortly thereafter, he became chairman of the local chapter of the Democratic Party in Berat.

In November 1994, at a referendum on a new constitution in Albania, Mehmet was in charge of a local polling unit in Berat. Several days before the November 6 referendum, Democrats arrived at his polling place and offered him money to buy votes. Mehmet refused the bribe, saying that he was confident the people in his area would support the referendum. On November 6, two armed men who said they represented Democratic Party "bosses" arrived at Mehmet's polling place and told him to switch voting boxes to ensure adoption of the new constitution. Mehmet refused to cooperate. The men knocked him unconscious, causing head injuries, facial and back bruises, and a fractured right leg. He was hospitalized for nine days until a friend advised him that he was targeted to be killed by Democratic leaders.

After learning that his name was on the Democratic Party's "extermination list," Mehmet fled to Greece with Zhaneta and Mirta, where they lived for approximately 11 months. Mehmet traveled to Albania to obtain a visitor's visa to the United States, but immediately returned to Greece to await his departure to the United States. In October 1995, he and his family waited in hiding at his mother-in-law's house in Albania, until he left for the United States on October 23.

Zhaneta and Mirta continued to live with her mother in a remote village in Albania. Zhaneta testified that on the night of January 24, 1996, three men broke into the home and demanded to know Mehmet's location. When she did not provide the information, the intruders beat her, causing a miscarriage of her unborn child. Zhaneta and Mirta then moved to her aunt's home in a different Albanian village. Zhaneta testified she was not harmed during the three years she lived there, but that two unknown men stared at Mirta as she played in the yard in late 1998. This incident caused her to believe that Mirta would be kidnapped and sold into the Albanian sex trade (according to her application), or (as she testified later) taken in retribution for Mehmet's disappearance. Additionally, both Zhaneta and Mehmet testified that Mehmet's "political enemies" retaliated in 1994 against his family by beating his father, and in 1997 by shooting his father in the leg and leaving a note in his father's house saying the whole family would be annihilated. Concerned about further retribution, Zhaneta obtained fraudulent passports for herself and Mirta and entered the United States on January 5, 1999.

C. Agency Proceedings

Reviewing the testimony, the Immigration Judge concluded that Mehmet was barred from political asylum because his application was untimely, as it was not filed within one year of his arrival in the United States.² See 8 U.S.C. § 1158(a)(2)(B). Because Zhaneta and Mirta were dependent asylum applicants on Mehmet's application, their requests for political asylum were also denied. The Judge then held that none of the three was entitled to withholding of removal or relief under the Convention Against Torture, as they had not established a clear probability of persecution if returned to Albania. The Judge granted Mehmet voluntary departure, but ordered Zhaneta and Mirta immediately removed.

All three appealed to the BIA, which issued two opinions. In the first, the BIA determined that Mehmet was not entitled to withholding of removal, because he did not show a clear probability of persecution if removed to Albania. In the second, the BIA concluded that the Immigration Judge erred in treating Zhaneta and Mirta as dependent asylum applicants, as they had filed their own petitions. By a de novo review, the BIA held that Zhaneta and Mirta were not entitled to political asylum because they did not establish persecution on account of any statutorily-protected ground. Similarly, the BIA determined that Zhaneta and Mirta were not entitled to withholding of removal. All three petitioners appeal.

II.

Mehmet argues that the BIA erred as a matter of law in holding that he failed to establish a "clear probability of persecution" by either the Democrats or Socialists on account of his political opinions if returned to Albania. This court reviews for abuse of discretion, and analyzes the underlying factual findings using the substantial evidence standard. See Hasalla v. Ashcroft, 367 F.3d 799, 803 (8th Cir.2004). The BIA's factual determinations are upheld if "supported by reasonable, substantial, and probative evidence on the record considered as a whole." INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Reversal of the BIA's decision is warranted only if the evidence is so compelling that no reasonable fact-finder could fail to find the requisite fear of persecution. See id.; 8 U.S.C. § 1252(b)(4)(B).

Withholding of removal is available only if the petitioner can show that his or her life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1231(b)(3). The standard for mandatory withholding of removal is stringent, a "clear probability that he or she will face persecution in the country to which he or she will be deported." Eta-Ndu v. Gonzales, 411 F.3d 977, 986 (8th Cir.2005), quoting Krasnopivtsev v. Ashcroft, 382 F.3d 832, 833 (8th Cir.2004). Under this standard, the petitioner must show that "more likely than not" he or she would be subjected to persecution on account of one (or more) of the statutory grounds. See INS v. Stevic, 467 U.S. 407, 429, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984).

Mehmet claims that his political opinions make it more likely than not that he will suffer persecution by members of the Socialist and/or Democratic parties if returned to Albania, as evidenced by his previous experiences. A petitioner can meet the statutory burden of proving a clear probability of future persecution by offering compelling evidence of past persecution. See 8 C.F.R. § 1208.16(b)(1)(i). Such evidence creates a presumption that the petitioner's life or freedom will be threatened if removed to the same country where persecution was previously inflicted. Id. However, the government may rebut this presumption by establishing that there has been a "fundamental change in circumstances such that the applicant's life would not be threatened . . . upon removal to that country." Id. § 1208.16(b)(1)(i)(A).

The BIA first determined that, as to Socialist persecution, the conditions in Albania had changed to such a degree that Mehmet no longer faced a clear probability of persecution by Socialists if deported. The BIA relied on the U.S. State Department's 2002 Country Report on Human Rights Practices in Albania, which reported that Albania had made progress in transitioning to a multiparty...