LUCE GILAJ аnd LUIGJ GILAJ, Petitioners, v. ALBERTO GONZALES, Attorney General, Respondent.
No. 03-4307
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
May 9, 2005
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 05a0208p.06. On Petition for Review of an Order of the Board of Immigration Appeals. Nos. A79 595 031; A79 595 032. Argued: January 26, 2005. Decided and Filed: May 9, 2005. Before: MOORE and GILMAN, Circuit Judges; WEBER, District Judge.*
ARGUED: Richard A. Kulics, IMMIGRATION LAW CENTER, Birmingham, Michigan, for Petitioners. Alison R. Drucker, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Richard A. Kulics, IMMIGRATION LAW CENTER, Birmingham, Michigan, for Petitioners. Emily A. Radford, Jennifer Keeney, Papu Sandhu, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
OPINION
PER CURIAM. Mrs. Luce Gilaj and Mr. Luigj Gilaj petition this court for review of a decision by the Board of Immigration Appeals ( BIA ) denying their requests for asylum, withholding of removal, and protection under the Convention Against Torture. We have jurisdiction to hear this petition pursuant to the Immigration and Nationality Act ( INA ),
A. Petitioners requests for relief
Petitioners are husband and wife and citizens of Albania. They entered the United States together on or about November 2, 2000, as non-immigrant visitors for pleasure with authorization to remain in the United States until May 1, 2001. Petitioners remained in the country beyond that time. The Immigration and Naturalization Service ( INS ) commenced removal proceedings pursuant to
B. The hearing on the merits
A hearing on the merits of petitioners claims was held before an Immigration Judge (IJ) on April 29, 2002. At the asylum hearing, Mrs. Gilaj testified to a series of events beginning in 1997 and continuing through October of 2000 that she alleges proved a well-founded fear of persecution that would allow her to obtain asylum in the United States. The IJ determined that Mrs. Gilaj was generally credible. The testimony that she gave at the hearing is set forth below.
Mrs. Gilaj was active in the Democratic Party in Albania before coming to the United States with her husband. In June of 1997, she was involved in the election campaign for the Demoсratic Party. She went through the villages in her region to campaign for Democratic Party candidates. She was threatened by the police during this period, as were her husband and son. Her husband was wounded in the neck with a knife during a physical confrontation with Socialists on election day, June 29, 1997.
She remained active in politics after the June 1997 election. In September of 1998, the police searched her home for weapons. She was beaten during the search but suffered no serious injury. When she and her family asked the police for a search warrant, they replied that they did not need a warrant and that they could enter the house by force because they were Socialists who were going to make all of the Democrats suffer. At this time, her son was arrеsted, sent to jail for two days, and beaten.
The next incident occurred in early April of 2000. Mrs. Gilaj was the co-organizer of an anti-government protest in the main plaza of the town of Shkoder. She had worked to increase the number of people who attended the demonstration by going around her village, talking to the women, and encouraging them to attend the demonstration. She spoke at the demonstration. Nobody was arrested at the demonstration, but that evening she and her family received phone calls at home from unidentified people threatening that the family would pay dearly for her speech at the demonstration.
Several days after the protest, on April 11, 2000, two secret police officers came to the Gilaj home to quеstion her about her work in the Democratic Party. Mr. Gilaj was not home at the time. The police started to threaten her and to ask about her son s address in the United States. The police made verbal threats like we gonna (sic) kill you right now, we gonna (sic) suffocate you right now. They searched the house for weapons, tore up some of her notes, and started to provoke [her] as a woman, an apparent reference to a sexual assault or molestation. The police were touching her when two relatives came into the house. The police left after having been in the house for approximately thirty minutes. She was not arrested, jailed, or beaten as a result of this incident.
At the demonstration leading to Mrs. Gilaj s detention, Mr. Gilaj sustained a leg wound when the police, who were beating the protestors, hit him with their boots. Although Mrs. Gilaj testified that her husband was not arrested at this time, Mr. Gilaj testified that he was arrested and jailed for two days.
After Mrs. Gilaj s release from jail, she went home and received a number of phone calls threatening to make her and her husband disappear. Shortly thereafter, she arrived in the United States with her husband after obtaining a visitor s visa. Mrs. Gilaj believes that, if she were required to return to Albania, she would be persecuted, and perhaps killed, as a consequеnce of her activities prior to leaving Albania.
C. The IJ s decision
At the conclusion of the hearing, the IJ denied the application for asylum, withholding of removal pursuant to
D. The BIA s decision
Mrs. Gilaj appealed to the BIA from the IJ s denial of her application. The BIA affirmed the IJ s decision for the reasons stated therein and dismissed the appeal. The BIA summarily stated that it concurred in the IJ s determination that Mrs. Gilaj had not demonstrated that she had suffered harm sufficiently serious as to constitute persecution within the meaning of the INA. The BIA made one specific comment in this regard, noting that Mrs. Gilaj had not specifiеd in her application, in her testimony, or on appeal how the men who came to her house on April 11, 2000, had attempted to provoke her as a woman. Second, the BIA addressed Mrs. Gilaj s argument that the IJ had erred in not offering her an opportunity to make a closing argument at the conclusion of the hearing on the merits. The BIA acknowledged that parties generally should be allowed to make closing arguments. The BIA found, however, that even if the IJ had erred in this regard, the error may be considered to be harmless. The BIA noted that Mrs. Gilaj had specifically rested her case, through counsel, without asking to make a closing argument. The BIA also determined that Mrs. Gilaj had
E. Petitioners objections
Petitioners argue in support of their petition for review that the IJ and BIA misinterpreted the definition of persecution, improperly considered, disregarded, and/or distorted substantial evidence submitted in support of the application, and made a decision against the great weight of the evidence. Petitioners contend that the issue to be resolved is whether a reasonable person would consider the actions taken against them to be offensive. In arguing that such actions are offensive and constitute persecution, petitioners place heavy reliance on a publication that they characterize as the primer for adducing whether an activity constitutes persecution, which is the United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (2d ed. 1992). Petitioners place particular emphasis on ¶ 51 of the Handbook, which they contend defines persecution as an unjustified threat of serious harm, including but not limited to a threat to life or freedom. Petitioners assert that the United Supreme Court has acknowledged that a prior edition of the Handbook provides significant guidance in construing the definition of refugee. See INS v. Cardoza-Fonseca, 480 U.S. 421, 438-39 (1987). Petitioners argue that being targeted for mistreatment and subjected to serious threats and attacks by politically-motivated thugs assoсiated with the political party that was to become the government of Albania rises well above mere harassment and constitutes persecution.
Petitioners further allege that they were denied the due process to which aliens are entitled in connection with deportation proceedings as a result of the IJ s failure to allow a closing argument at the hearing on the merits. Petitioners claim that a closing argument is part of a fair hearing and that the denial of an opportunity to present one resulted in a fundamentally unfair decision.
Finally, petitioners claim that the IJ and the BIA abused their discretion in denying petitioners claims for relief. Petitioners argue that, given the facts described in their testimony, the case appears to have been decided contrary to established policy and precedent. In particular, petitioners argue that the BIA s concern with an alleged lack of specificity in Mrs. Gilaj s testimony as to how police officers provoked [her] as a woman demonstrates the inadequacy of the BIA s decision-making.
II. Analysis
A. Review of the BIA s decision
Where the BIA adopts the IJ s reasoning, the court reviews the IJ s decision directly to determine whether the decision of the BIA should be upheld on appeal. Denko v. INS, 351 F.3d 717, 723 (6th Cir. 2003). In this case, the BIA summarily adopted the IJ s decision while adding a comment on the lack of specificity as to one portion of the testimony and making a finding on petitioners due process claim. We therefore directly review the decision of the IJ while considering the additional comment made by the BIA. Because the due process claim was not before the IJ, we directly review the BIA s decision on that claim.
B. Petitioners claim of past persecution
The United States Attorney General has discretion under the INA,
The burden is on the applicant to establish that he or she qualifies as a refugee.
The court reviews the factual determination of whether a petitioner qualifies as a refugee under a substantial evidence test. Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir. 2004). The court may reverse the BIA s determination if the evidence not only supports a contrary conclusiоn, but indeed compels it. Ouda v. INS, 324 F.3d 445, 451 (6th Cir. 2003). The petitioner must demonstrate that the evidence presented was so compelling that no reasonable factfinder could fail to find the requisite persecution or fear of persecution. Id.
The INA,
In order to demonstrate eligibility for asylum on the basis of a well-founded fear of persecution, an applicant must establish that: (1) he or she has a fear of persecution in his or her country of nationality . . . on account of race, religion, nationality, membership in a particular social group, or political opinion; (2) There is a reasonable possibility of suffering such persecution if he or she were to return to that country; and (3) He or she is unable or unwilling to return to, or avail himself or herself of the protection of, that country because of such fear.
The INA provides no definition of persecution. In Mikhailevitch v. INS, 146 F.3d 384 (6th Cir. 1998), this court reviewed numerous cases from other circuits in an attempt to discern the meaning of the term within the context of the INA. The court determined that persecution within the meaning of
Mikhailevitch has not been interpreted as suggesting that physical punishment is in all cases sufficient for finding persecution. Gjokic v. Ashcroft, Nos. 02-3915, 02-3917, 2004 WL 1491638, at *4, 104 Fed.Appx. 501 (6th Cir. June 29, 2004) (unpublished) (citing Mikhailevitch, 146 F.3d at 390). Rather, as the court in Gjokic emphasized, Mikhailevitch states only that something more than a few isolated incidents of verbal harassment or intimidation unaccompanied by any physical punishment is necessary for finding persecution . . . . Id. (citing Mikhailevitch, 146 F.3d at 390). The court in Gjokic relied on this language in Mikhailevitch and on several decisions from other circuits in determining that while even a single beating offends one s sense of civilized
Consistent with these decisions, the court in Gjokic upheld a finding of no persecution as to an alien who had been detained for several days following his attendance at a demonstration and who had been beaten by the police with rubber sticks, which caused bruising but no permanent injuries. The court found that, in addition to сonsidering the length of the detention and the severity of the physical harm, the IJ had properly considered the context of the demonstration that the alien had attended. Id. at *5. Specifically, the petitioner had not led, or spoken at, any demonstrations, and he had not distinguished himself from the thousands of other demonstrators. Id. Moreover, the petitioner had not been beaten or detained again during the one and one-half years between the incident on which he based his claim of past persecution and the time he left his home country. Id.
Another panel of this court has indicated what types of conduct may rise to the level of persecution by quoting with approval the following language from a Seventh Circuit decision:
Persecution encomрasses more than threats to life or freedom; non-life threatening violence and physical abuse also fall within this category. However, to sustain an asylum application, the conduct must rise above mere harassment. Types of actions that might cross the line from harassment to persecution include: detention, arrest, interrogation, prosecution, imprisonment, illegal searches, confiscation of property, surveillance, beatings, or torture.
De Leon v. INS, No. 02-4148, 2004 WL 1088243, at *1, 99 Fed.Appx. 597 (6th Cir. May 12, 2004) (unpublished) (quoting Begzatowski v. INS, 278 F.3d 665, 669 (7th Cir. 2002)).
In addition to examining the nature of the conduct on which an application for asylum is based, we have looked to the overall context of the applicant s situation to ascertain whether the applicant has been subjected to persecution within thе meaning of the INA so as to give rise to a presumption of a well-founded fear of future persecution. See, e.g., Pilica v. Ashcroft, 388 F.3d 941, 954 (6th Cir. 2004); Gjokic, 2004 WL 1491638. Our decisions demonstrate that to create a presumption of a well-founded fear of future persecution, the applicant must establish that he or she was specifically targeted by the government for abuse based on a statutorily protected ground and was not merely a victim of indiscriminate mistreatment. For instance, in Pilica, the court deemed it significant that [t]here is no indication that [the applicant] is on some governmental blacklist; indeed, all of the occurrences that arguably constitute past persecution resulted directly from Pilica s attendance at a demonstration rather than from the government having sought him out. 388 F.3d at 955. Similarly, as noted above, the panel in Gjokic relied on the fact that the petitioner had not led, or spoken at, any demonstrations, he had not distinguished himself from the thousands of other demonstrators, and he was never detained or beaten again. 2004 WL 1491638, at *5.
The numerous decisions rendered by the various panels of this court upon review of BIA decisions on applications for asylum make clear that the conduct on which the application for asylum is based must go beyond what might reasonably be characterized as mere harassment in order to rise to the level of persecution. It is equally clear that the characterization of conduct as
When reviewed in light of the case law addressing the meaning of persecution within the context of the INA, the IJ s decision that the incidents described by petitioners do not rise to the level of persecution is not supported by substantial evidence. The IJ found petitioners to be credible, so we must accept the representations petitioners made in the application and their testimony as true. The testimony establishes that petitioners were specifically targeted for abuse based on their political opinions and activities and that the abuse exceeded verbal harassment and intimidation and consisted of more than a single beating or other isolated occurrence. The Gilaj family was subjected to searches of their home by the police on two occasions, with the police telling the family during the first search that they could enter the home by force because they were Socialists and they were going to make Democrats suffer, and then making threats to kill and suffocate Mrs. Gilaj during the second search. In addition to these incidents, petitioners were subjected to physical abuse and infliction of harm and suffering on several occasions. Mrs. Gilaj was beaten during the first search of her home in September of 1998. She was detained for two days in October of 2000, during which time she was deprived of food and beaten with rubber sticks, slapped, and punched, resulting in bruising and pain for which she obtained medication following her release. Mrs. Gilaj appаrently was also the victim of a sexual offense, or an attempted sexual offense, by the police, which was thwarted only by the timely arrival of her relatives. Finally, Mrs. Gilaj and her family received numerous telephone threats, including death threats made as recently as the month preceding Mr. and Mrs. Gilaj s departure from Albania.
The IJ recounted much of this testimony when setting forth the substance of petitioners claims. In determining that the incidents that petitioners had described did not constitute persecution, however, the IJ apparently failed to take into account the fact that Mrs. Gilaj and her family had been specifically targeted by their government for abuse based on Mrs. Gilaj s political activities. Moreover, the IJ inexplicably downplayed the severity of the conduct, omitted serious incidents from consideration, and failed to consider in the aggregate all of the incidents that he did take into account. The IJ summarized the conduct on which he based his determination that Mrs. Gilaj had not been subjected to persecution as follows:
[Mrs. Gilaj] testified that she participated in demonstrations, that she sought to increase Democratic party support in her part of the country. She testified that as a result of her activities she was threatened by the opposing party, and perhaps by the police. She testified that her house was searched, and she testified that she was held for two days after one demonstration. She also testified that she did not suffer any serious injuries as a result of her time in custody. When thesе incidents are considered in the aggregate, this Court cannot find that they rise to the level of persecution. This is not to minimize the difficulty of being active politically in a country, such as Albania, with no tradition of democracy. Similarly, the Court finds that the threats that respondent may have received as a result of her political activity do not constitute past persecution.
When all of the incidents to which petitioners testified are taken into account and considered in the aggregate and in light of the overall context of the Gilaj family s situation, the record compels a finding that Mrs. Gilaj was subjected by her government to past persecution on accоunt of political activities and opinion. These incidents go well beyond the types of conduct that this court has held do not constitute persecution. Petitioners did not testify merely to a few isolated incidents of verbal harassment or intimidation unaccompanied by any physical punishment, or to a single beating or other remote occurrence. Nor did petitioners show only that they were the victims of indiscriminate abuse or random violence. Instead, petitioners demonstrated that they were the intended targets of a series of incidents that consisted of physical punishment, threats to petitioners lives, detentions, illegal searches, and an apparent sexual offense or attempted sexual offense by government agents, because of political activities and opinion. The IJ s determination that these incidents do not constitute past persecution simply is not supported by substantial evidence.
The BIA did not correct the IJ s errors, but instead further distorted the record in rendering its decision. After generally stating that it concurred in the IJ s determination that Mrs. Gilaj had not demonstrated that she had suffered harm sufficiently serious as to constitute persecution, the BIA noted in particular that Mrs. Gilaj had not specified how the men who came to her house on April 11, 2000, attempted to provoke her as a woman. Although Mrs. Gilaj s testimony was vague in this regard, it was nonetheless sufficiently clear to show that Mrs. Gilaj had been subjected to an attempted assault or molestation of a sexual nature but was too ashаmed to provide details regarding the incident. When Mrs. Gilaj was asked at the hearing what she meant by the police started to provoke me as woman, she responded, I, I cannot express it, I m ashamed, they started to touch me. Mrs. Gilaj also indicated during her testimony that, upon arriving at her home at the time of the incident, her relatives found her crying there, and with [her] blouse tore up and unbuttoned. This testimony suffices to show what Mrs. Gilaj meant when she stated that the police started to provoke her as a woman. It is understandable that Mrs. Gilaj would be hesitant to provide any more details, and no one prompted her to do so at the hearing. Given the testimony that Mrs. Gilaj did provide and her apparent reluctance to go into embarrassing detail, the BIA s reliance on this ambiguity in the record to support a finding of a lack of sufficiently serious harm is simply not justified. A reasonable adjudicator would be compelled to conclude that the incidents described by petitioners rise to the level of persecution as that term has been developed in the case law, and the BIA s decision to the contrary is not supported by substantial evidence. We therefore cannot uphold the BIA s decision.
Even if an applicant satisfies the burden of establishing that he or she qualifies as a refugee on the basis of either past persecution or a well-founded fear of persecution, the BIA, in its discretion, may deny asylum. Cardoza-Fonseca, 480 U.S. at 421 n.5. The BIA s discretionary judgment whether to grant relief on an application for asylum is conclusive unless manifestly contrary to law and an abuse of discretion.
When an applicant has satisfied his or her burden of establishing past persecution based on a statutory ground so as to be eligible for a grant of asylum, the likelihood of present or future persecution then becomes relevant as to the [BIA s] exercise of discretion. . . Matter of Chen, 20 I. & N. Dec. at 18. An alien who has been persecuted in the past is presumed to have a well-founded fear of persecution based on the original claim.
Because the IJ determined that Mrs. Gilaj had failed to establish past persecution, the IJ made only a cursory determination that she had not established a well-founded fear of persecution based on her political activity. Having found no past persecution, the IJ did not apply a presumption of a well-founded fear of future persecution and shift to the government the burden to rebut that presumption. The IJ did not examine the record and consider whether there has been a fundamental change in circumstances such that petitioners no longer have a well-founded fear of persecution; whether they could avoid persecution by relocating to another part of Albania; whether petitioners have shown compelling reasons for being unwilling or unable to return to Albania arising out of the past persecution; or whether there is a reasonable possibility that they may suffer other serious harm if removed to Albania. There is documentation in the record that suggests that conditions in Albania have changed in recent years, and petitioners therefore may be unable to establish that they have a well-founded fear that they will be persecuted if forced to return to Albania. This determination, however, is for the BIA to make in the first instance. See INS v. Ventura, 537 U.S. 12 (2002). Accordingly, the appropriate course is to remand this matter to the BIA for additional fact-finding and determination of the issues bearing on the discretionary decision of whether to grant asylum.
D. Request for withholding of removal
In addition to requesting asylum in her application, Mrs. Gilaj requested withholding of removal pursuant to
Respondent contends that we lack jurisdiction to consider the issue of withholding of removal because Mrs. Gilaj failed to raise the issue in her brief filed with the BIA. Respondent also argues that petitioners have abandoned their claim for withholding of removal by failing to challenge the denial of that claim on appeal.
In an appeal from an order of removal, we have jurisdiction to review only those claims for which the applicant has exhausted the administrative remedies available to the alien as a matter of right.
Petitioners argued before the BIA that the IJ had erred in finding that the incidents described by petitioners did not constitute persecution. Their argument is pertinent to both the claim for asylum and the claim for withholding of removal. Accordingly, we find that petitioners properly presented the issue of withholding of removal to the BIA for its determination. In addition, petitioners presented the issue to this court by arguing in their appellate brief that the IJ and the BIA had abused their discretion by denying both the claim for asylum and the claim for withholding of removal. Accordingly, petitioners have not waived their claim for withholding of removal, and we have jurisdiction to hear the claim.
The IJ relied solely on the finding regarding asylum in determining that Mrs. Gilaj could not meet the more stringent burden of establishing eligibility for withholding of removal. The IJ did not examine the evidence and make specific findings regarding the probability that Mrs. Gilaj would be subject to persecution if she were forced to return to Albania. Thus, the BIA should consider on remand whether petitioners are entitled to withholding of removal based on all of the evidence of record.
E. Petitioners claim for protection under the Convention Against Torture.
Petitioners did not address their right to protection under the Convention Against Torture in either their Notice of Appeal to the BIA or in their brief filed in support of their appeal to the BIA. Petitioners therefore failed to exhaust their administration remedies as to this claim, and we lack jurisdiction to review the issue.
F. Petitioners due process claim
Petitioners claimed before the BIA that the IJ s failure to offer thеm an opportunity to make a closing argument resulted in a fundamentally unfair conclusion. Petitioners argue before this court that the IJ s failure to allow a closing argument at the hearing on the merits denied them the due process to which aliens are entitled in connection with deportation proceedings.
Aliens are entitled to due process of law in deportation proceedings. Denko, 351 F.3d at 726 (citing Reno v. Flores, 507 U.S. 292, 306 (1993)). Due process requires that an alien be afforded a full and fair hearing. Castellano-Chacon v. INS, 341 F.3d 533, 553 (6th Cir. 2003) (citing Mikhailevitch, 146 F.3d at 391). Claims of due process violations in deportation proceedings are reviewed de novo. Id. at 552-53 (citing Mikhailevitch, 146 F.3d at 391).
This court has acknowledged, in the context of deportation proceedings, that opening and closing arguments are critically important in sharpening and clarifying issues for resolution in our advеrsary system. Castellano-Chacon, 341 F.3d at 553. Denial of the opportunity to present
Petitioners are not entitled to relief based on the claimed due process violation. Petitioners did not request, through their attorney, that they be permitted to make a closing argument, and so it is not fair to say that the IJ denied them an opportunity to present one. Moreover, petitioners have failed to show that they were prejudiced by the IJ s failure to offer them an opportunity to make a closing argument. Therе is no indication in the record that the outcome of the proceeding would have been different had a closing argument been presented on petitioners behalf. Accordingly, if the IJ did err in this regard, the error is harmless.
III. Conclusion
For all of the reasons set forth above, the petition for review of the decision of the BIA denying petitioners requests for asylum and withholding of removal is GRANTED. We REVERSE the decision of the BIA that petitioners failed to establish eligibility for asylum on the basis of past persecution. We REMAND the matter to the BIA for a determination of whether petitioners are entitled to a discretionary grant of asylum and/or to withholding of removal in light of all of the evidence of record.