Shehu v. Holder, Jr.

2013 | Cited 0 times | First Circuit | August 9, 2013

Not for Publication in West's Federal Reporter

United States Court of Appeals For the First Circuit

No. 11-2435

ILIRJAN SHEHU, ET AL.,

Petitioners,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before

Howard, Circuit Judge, Souter,* Associate Justice, and Torresen,** District Judge.

Andrew P. Johnson and Law Offices of Andrew P. Johnson for petitioners. John B. Holt, Trial Attorney, Luis E. Perez, Senior Litigation Counsel, and Stuart F. Delery, Acting Assistant Attorney General, for respondent.

August 9, 2013

* Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation. ** Of the District of Maine, sitting by designation.

SOUTER, Associate Justice. This petition is for review

of a judgment of the Board of Immigration Appeals affirming the

order of an immigration judge declaring the concededly removable

petitioners ineligible for asylum, withholding of removal, and like

treatment under the Convention Against Torture. Because

petitioners have not shown that a reasonable adjudicator would be

compelled to find in their favor on any claimed ground for relief,

we affirm.

Ilirjan Shehu is the husband of Raimonda Shehu and father

of the two other petitioners, all of them citizens of Albania. The

claims of Raimonda and the younger son, Joni, are derivative of

Ilirjan’s. Although the elder son, Enis, filed his own asylum

petition as an adult, his counsel told the judge that his claim

rested on “[w]hat happened to his father,” J.A. 80, and it will be

treated as derivative as well, without need to consider the judge’s

and Board’s reasons for finding him independently ineligible for

relief.

The operative facts alleged by the father begin with his

participation at a local level in the affairs of the Democratic

Party of Albania, the competitor of the Socialist Party. He

testified that he was beaten and detained for 12 hours after taking

part in a political demonstration in 1997. The next year he

demonstrated again after the murder of the leader of his party, and

his cousin Adem was killed by a sniper’s bullet after his televised

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accusation that a police official and Socialist Party member, one

Dervishi, had ordered the party leader’s killing. Shehu hired

investigators to unearth evidence that Dervishi was responsible for

Adem’s death, and he presented his claim of political assassination

to Albanian authorities and Amnesty International. He testified

that as he pursued these activities the Socialist government

harassed him in his business, which was nonetheless successful

enough to allow him to accumulate over $300,000. He also suffered

sporadic threats and acts of violence: being assaulted while

monitoring an election in 2001; being assaulted the next year by

several men, including one he recognized as a Dervishi bodyguard;

then having his car stolen and being told that “this time” he was

paying only with his car; two years later receiving an extortion

demand for money, under threat to the safety of his sons, then in

Italy (one of whom was himself threatened); and receiving both a

symbolic death threat and a shot through the window of his house in

2004.

After that, he, his wife and younger son entered the

United States lawfully on visas, and were joined by the elder son,

who was smuggled in illegally. After the visas expired all

received notices to leave; none contested removability. Instead

they filed claims for asylum as refugees on the ground of

persecution and a well-founded fear that they would suffer

persecution, that is, that their lives or freedom would be

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threatened because of Shehu’s political opinions if returned to

Albania, 8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(A); claims for

withholding of removal on the same grounds, id. § 1231(b)(3); and

claims for withholding of removal under the Convention Against

Torture, on the ground of likely torture if returned, see

Convention Against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment, Art. 3, Dec. 10, 1984, S. Treaty Doc. No.

100–20, p. 20, 1465 U.N.T.S. 85; see also 8 C.F.R.

§§ 1208.16–1208.18.

Although the Government has argued here that the facts

alleged do not rise to the level of persecution under Tobon-Marin

v. Mukasey, 512 F.3d 28 , 31-32 (1st Cir. 2008), the immigration

judge assumed arguendo that Shehu had suffered past persecution,

which is enough to raise a rebuttable presumption of future

repetition, see 8 C.F.R. § 1208.13(b)(1). The judge nonetheless

denied asylum based on a finding that Shehu had failed to carry his

burden to show that Albanian persecutory activity was or would be

on account of his political opinions, as distinct from personal

retaliation by Dervishi, or simple hope of profit from extortion.

It is sufficient to limit our own consideration likewise.

Before we reach the motivation issue, however, we should

note Shehu’s anterior claim of a methodological error in the prior

proceedings, though it calls for nothing more than brief mention.

He faults the administrative adjudicators for failing to make any

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express finding that he was a credible witness. But this is no

matter if the assumption of credibility would still leave the

record inadequate to require reversal or vacatur, Morgan v. Holder,

634 F.3d 53 , 57 (1st Cir. 2011). As will be seen, that is the case

here.

Shehu’s claim that the judge and Board committed

substantive error in failing to find that his political opinions

were, and would be, the motivation for persecution goes to an issue

on which he had the burden of proof, as with all elements of the

asylum claim. Thus, his burden as asylum applicant, see 8 C.F.R.

§ 1208.13(a), is to show persecution or a well-founded fear of it

if deported to Albania, 8 U.S.C. § 1101(a)(42)(A). Shehu rests his

case for a well-founded fear on a showing of past persecution,

which (as we noted) raises a rebuttable presumption of future

repetition. A further essential element of his claim requires

showing that the motivation for the persecution or its repetition

was, or would be, one of several illegitimate reasons, in this case

(as he says) on account of his political opinion, see 8 U.S.C.

§ 1101(a)(42)(A).

The judge found that his attribution of the harm to his

“political activities [was] not plausible,” J.A. 62, and the Board

agreed that he “did not establish that he encountered problems in

Albania because of his political opinion,” J.A. 4. Since judge and

Board were in accord, we review both of their findings, which are

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“conclusive unless any reasonable adjudicator would be compelled to

conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B). Accordingly,

Shehu can prevail only on demonstrating that “the evidence ‘points

unerringly in the opposite direction’” of the administrative

conclusions. Segran v. Mukasey, 511 F.3d 1 , 5 (1st Cir. 2007)

(quoting Laurent v. Ashcroft, 359 F.3d 59 , 64 (1st Cir. 2004)).

This he cannot show.1

It is not that Shehu has no evidence that he has suffered

some harm on account of his expression of political opinion; his

first arrest, temporary detention and assault following a political

rally are apparent examples, and so possibly is the assault while

acting as an election monitor. But for much of the mistreatment he

has suffered in the past, and for the violence to be feared if

returned to Albania, he has identified Dervishi as the instigator,

and he has presented evidence of a distinct and more specific

motivation on Dervishi’s part than passionate political

disagreement. Shehu’s testimony describes how he paid for

investigation into the circumstances of his cousin’s homicide, an

investigation he says points to Dervishi as ordering the killing,

and which he says he has made known to Amnesty International and to

the Albanian government. He has demanded that Dervishi be held

1 Petitioners filed their claims prior to the effective date of the REAL ID Act of 2005, Pub. L. No. 109-13, § 101(h)(2), 119 Stat. 231, 305, and the statute’s burden-of-proof and credibility provisions are therefore inapplicable here, see 8 U.S.C. § 1158(b)(1)(B)(i)-(iii).

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responsible. This testimony shows that Dervishi has a personal

reason to silence him and those most closely associated with him

that can readily be seen as more powerful than the possible

provocation of Shehu’s political opinions.

To be sure, if Shehu’s testimony is credited, the

official’s personal motive to suppress a troublemaker might well be

complemented by expected satisfaction at silencing a voice of

political opposition. But this influence is unavailing, for two

reasons. The first is that when there are plausible and specific

reasons distinct from political opinion for the asylum applicant to

take provocative action, and for a putative persecutor to react,

showing a general atmosphere of political extremism is insufficient

without more to satisfy the burden to show that harm to be feared

will be on account of the applicant’s own political opinions. See

INS v. Elias-Zacarias, 502 U.S. 478 , 482 (1992). A second and

complementary reason, specific to this case, is that in his own

testimony Shehu minimizes the possibility that his political

opinion was or would be the provocation for violence against him,

if he does not practically rule it out. He stated that Dervishi

would “not be opposed to any kind of political belief . . . or any

other kind of ideology or belief. He would advance his career and

get money.” J.A. 198. That is, he attributes Dervishi’s actions

to personal ambition to hold power and reap reward, and as against

this, “the mere existence of a generalized ‘political’ motive

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underlying” the persecutory action does not suffice to establish

that Shehu’s political opinion are the motivation. Elias-Zacarias,

502 U.S. at 482.

Quite obviously, a reasonable person would not be

compelled to reach the conclusion opposite to the judge’s and the

Board’s; the evidence does not point unerringly to Shehu’s own

politics, rather than his pursuit of Dervishi as a criminal, as the

motive for harm rising to the level of persecution that he suffered

or may suffer at Dervishi’s behest.2 Since there was no error in

denying the claim to eligibility for asylum, it follows that there

was none in denying the claim for withholding of removal, which is

governed by a heavier burden of proof of prospective persecution

for one of the specified reasons, see Lobo v. Holder, 684 F.3d 11 ,

19-20 (1st Cir. 2012). Finally, the denial of the claim for relief

under the Convention Against Torture is likewise free of error,

there being no evidence of any likelihood of torture.

For the foregoing reasons, the petition for review is

denied.

It is so ordered.

2 Given the findings of fact, for which substantial evidence is apparent, this case does not implicate the concept of mixed motivation, see Aliyev v. Mukasey, 549 F.3d 111 (2d Cir. 2008).

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