Vasili v. Holder
2013 U.S. App. LEXIS 20920
| 1st Cir. | 2013Background
- Kosta Vasili (Albanian national) and family entered the U.S. in 2001, overstayed visas, and applied for asylum, withholding of removal, and CAT protection; BIA denied relief and removal order followed.
- Kosta was an active supporter/distributor of materials for Albania’s Democratic Party before 2001; he and family returned to Albania in June 2001 and left again after two violent incidents.
- Incident 1 (2001): Kleopatra (child) suffered a serious head injury after an object (allegedly a grenade in written statement) was thrown into the courtyard; parents did not witness the attack and do not know the perpetrator.
- Incident 2 (July 2001): Three armed men wearing helmets stopped and beat Kosta, warning him to stop political activity; record lacks medical records or detail on injuries.
- IJ and BIA found petitioners credible but held petitioners failed to prove (1) nexus between attacks and political opinion such that incidents constituted past persecution, and (2) even assuming past persecution, Department of State country reports showed a fundamental change in Albania rebutting any presumption of future persecution. Petitioners did not press withholding/CAT on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petitioners suffered past persecution on account of political opinion | Vasili: attacks (child’s injury, his beating) were politically motivated because of his Democratic Party activity and family history of persecution | Gov't: record shows no evidence linking incidents to political actors or government action; injuries insufficiently severe or documented | Held: No past persecution; nexus speculative and beating not shown to reach persecution level |
| Whether a presumption of well-founded fear of future persecution (if past persecution proved) was rebutted by changed country conditions | Vasili: remains at risk because perpetrators still in village; Democratic/Socialist tensions persist | Gov't: Country Report shows peaceful electoral process, decline in political violence, and family members in Albania unharmed — fundamental change rebutting presumption | Held: Rebutted — substantial evidence of fundamental change in Albania; no well-founded fear |
| Whether general criminal violence or police corruption supports asylum claim | Vasili: criminality/police issues in Country Report show ongoing danger | Gov't: General crime is not political persecution; Country Report contains no politically motivated violence | Held: General crime/corruption insufficient to show political persecution |
| Whether petitioners preserved withholding of removal and CAT claims on appeal | Vasili: (did not meaningfully brief on appeal) | Gov't: claims forfeited by failure to brief; alternative relief requires higher burden anyway | Held: Waived; even if not, failure on asylum claim is fatal to withholding/CAT claims |
Key Cases Cited
- Lumaj v. Gonzales, 446 F.3d 194 (1st Cir. 2006) (standard of review and substantial-evidence review of BIA fact findings)
- Topalli v. Gonzales, 417 F.3d 128 (1st Cir. 2005) (deferential review and upholding BIA where record supports findings)
- López-Castro v. Holder, 577 F.3d 49 (1st Cir. 2009) (persecution requires more than harassment and requires nexus to protected ground)
- Uruci v. Holder, 558 F.3d 14 (1st Cir. 2009) (country reports can show fundamental change rebutting fear of future persecution)
- Tota v. Gonzales, 457 F.3d 161 (1st Cir. 2006) (similar denial for Albanian Democratic Party member based on country conditions)
- Nako v. Holder, 611 F.3d 45 (1st Cir. 2010) (upholding denial where country reports showed cessation of politically motivated violence)
- Alibeaj v. Gonzales, 469 F.3d 188 (1st Cir. 2006) (high burden to prove past persecution; infrequent beatings/threats may not suffice)