Vasili v. Holder

• Decision Date: 16 October 2013
• Docket Number: No. 13–1273.,13–1273.
• Citation: 732 F.3d 83
• Parties: Kosta VASILI; Androniqi Vasili; Kleopatra Vasili; Aleksandros Vasili, Petitioners, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

732 F.3d 83

Kosta VASILI; Androniqi Vasili; Kleopatra Vasili; Aleksandros Vasili, Petitioners,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 13–1273.

United States Court of Appeals,First Circuit.

Oct. 16, 2013.

Saher J. Macarius and Audrey Botros on brief, for petitioners.

Deitz P. Lefort, Trial Attorney, Office of Immigration Litigation, Stuart F. Delery, Acting Assistant Attorney General, Civil Division, and Derek C. Julius, Senior Litigation Counsel, on brief, for respondent.

Before TORRUELLA, RIPPLE,^* and THOMPSON Circuit Judges.

THOMPSON, Circuit Judge.

Petitioner Kosta Vasili, a native and citizen of Albania, seeks review of a final removal order requiring him and his wife, Androniqi, and their two children, Kleopatra and Aleksandros, to return to Albania.¹ The petitioners say their application for asylum should have been granted on the basis of past persecution and their well-founded fear of future persecution if they are returned to their homeland. We affirm the final removal order.

I. BACKGROUND

Kosta was born in Finiq, Albania in September of 1961 and he and Androniqi married in 1992. Kosta did not have a good life under Communist ² rule, and in March of 1992 he became involved with the founding of Albania's Democratic Party. Kosta assisted the fledgling political party by traveling to various villages handing out flyers, “pretty much advertising for the new party.” Some time later, he and his wife relocated to Greece, where Kosta found occasional work as an auto mechanic. He did not have a right to permanently remain in Greece, and he returned to Albania on multiple occasions to visit his mother, brother, and sister. Kosta and Androniqi's daughter, Kleopatra, was born in Greece in 1993.³ Kosta and his family returned to Albania in June of 2001 and moved in with his mother. While there he resumed his political involvement, which once again consisted of passing out flyers and advocating for the Democratic Party. It was not long after the family's return to Albania that the two incidents upon which the petitioners base their claim for asylum occurred.

One day, Kleopatra was playing alone outside when she was seriously injured after strangers threw something into their home's courtyard. Kosta did not specify what this “something” was in his testimony before an immigration judge (“IJ”), but in his written declaration in support of his application for asylum, he stated masked men threw a grenade into the yard. According to the written application, the blast knocked Kleopatra off a set of stairs where she had been sitting.

Androniqi was inside the home at the time of the incident and did not see what happened. She heard a “big noise” while their daughter was outside, and when she went to investigate she saw Kleopatra on the ground. She surmised that Kleopatra fell off the stairs and hurt herself. Androniqi believes the noise she heard was the sound of a grenade because Kleopatra told her later that she heard a loud sound before she fell.

Kleopatra suffered a serious head injury from her fall. The Vasilis took their daughter to the hospital, where she immediately underwent surgery. Kleopatra remained hospitalized for ten to twelve days.

Kosta does not know who was behind this incident, but he suspects it was perpetrated by members of the Socialist Party because of his involvement with the Democratic Party. He believes this is so because his entire family had problems with the communists in the past, particularly his grandfather (who was jailed) and his uncle. He himself indicated that he was not permitted to attend school or to carry a gun when he served in the army. Androniqi does not know who was behind the incident either, but like her husband she suspects it was “people that were against [her] husband because he was working for the new democracy, the party.”

The second incident occurred in July of 2001. Three men wearing helmets and carrying guns stopped Kosta while he was driving. The men beat Kosta with their guns and warned him to stop working with the Democratic Party. There is no evidence in the record as to the nature and extent of any injuries Kosta suffered or whether he sought medical treatment as a result of this beating. Kosta did not report either of these two incidents to the police because he did not believe they would help him or even investigate what had happened. Instead, Kosta and his family left Albania and traveled to Greece, where they obtained visas permitting entry into the United States. They entered the country in August of 2001 and ultimately overstayed their visas. Conceding their removability, the petitioners filed applications for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”).

Kosta testified before an IJ, expressing fears of returning to Albania because of what happened to him and his family in the past. If he goes back, he believes he will once again become a target as a result of his political beliefs and activities. While he admitted the Democratic Party has won elections in Albania in recent years, he also stated that the people who harmed him and his family remain in his village. Kosta conceded, however, that no one has harmed his mother, brother, or sister in any way since he left Albania in 2001.

The IJ also considered the Department of State's 2009 Country Report on Albania (“Country Report”). The Country Report indicates the Albanian constitution gives its citizens the right to peacefully change their government, and this right is in fact exercised through periodic elections. Although the most recent (as of the date of the Country Report) parliamentary elections occurred in a polarized environment in which media coverage was biased in favor of the Socialist Party and Democratic Party (which, we note, Kosta supports), a total of thirty-two political parties campaigned freely across the country. Political parties operated without outside influenceand there were no major disputes or violence throughout the election. The Country Report does not indicate there has been any politically-motivated violence between supporters of the Democratic and Socialist Parties or, for that matter, that politically-motivated violence is a problem anywhere in Albania.

The IJ denied the petitioners' requests for asylum, withholding of removal, and protection under CAT. She found that both Kosta and Androniqi were credible witnesses, but failed to show they were eligible for asylum. While the IJ characterized the injury to Kleopatra as a “very serious and unfortunate incident,” she determined that the petitioners did not prove any connection between the incident and Kosta's political beliefs. According to the IJ, Kosta and Androniqi's suspicions, standing alone, were insufficient to meet their burden of proof. She also determined the second incident did not rise to the level of persecution because Kosta did not show he experienced something more than unpleasantness, harassment, or even basic suffering. As such, the IJ concluded the petitioners were not eligible for asylum because they failed to sustain their burden of demonstrating they had been persecuted in the past on account of Kosta's political views.

The IJ continued. Even if the petitioners had been able to establish past persecution, any presumption of a well-founded fear of future persecution had been rebutted by fundamental changes chronicled in the Country Report. She specifically relied on the Report's conclusion that there had been no major disputes or violence during the last elections, along with the lack of any reports of politically-motivated violence between members of the Socialist Party and the Democratic Party. The IJ also found it significant that Kosta's mother and siblings have remained in Albania since the summer of 2001 and have not been harmed in any way. Wrapping things up, the IJ found the petitioners did not have a well-founded fear of future persecution and denied their request for asylum.

The petitioners appealed to the Board of Immigration Appeals (“BIA”), which issued a written decision on January 29, 2013. Without disturbing the IJ's credibility determination, the BIA agreed that the petitioners failed to meet their burden of proof. The BIA found the petitioners did not establish past persecution because there was no evidence Kleopatra's injuries were caused by the Socialist Party instead of “an unusual accident.” As for the incident involving the three men with guns, the BIA determined it did not result in injuries severe enough to qualify as “persecution.” The BIA concurred that the Country Report demonstrated a fundamental change in circumstances sufficient to rebut any presumption of a well-founded fear of future persecution. Thus, the BIA concluded the petitioners failed to demonstrate eligibility for asylum, withholding of removal, or protection under CAT, and dismissed their appeal.

The petitioners' timely appeal to this Court followed.

II. DISCUSSION

Our review of the proceedings below “is limited to determining whether substantial evidence in the administrative record supports the IJ's findings that petitioner[s] neither suffered from cognizable past persecution nor demonstrated a well-founded fear of future persecution.” Lumaj v. Gonzales, 446 F.3d 194, 198 (1st Cir.2006). The standard of review is “deferential,” and we must uphold the BIA's decision “so long as its decision is supported by substantial evidence in the record.” Topalli v. Gonzales, 417 F.3d 128, 131 (1st Cir.2005) (quoting Rodriguez–Ramirez v. Ashcroft, 398 F.3d 120, 123 (1st Cir.2005)). Determinations as to witness credibility are to be accorded “great respect” when supported by specific findings. Lumaj, 446 F.3d at 198.

Here, the IJ rendered a decision from the bench and the BIA released a detailed written opinion affirming the IJ's decision and providing its own analysis. Accordingly, we review both decisions. Rashad v. Mukasey, 554 F.3d 1, 4 (1st...