Islami v. Gonzales, (1st Cir. 2006)

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Not For Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

 

United States Court of Appeals

For the First Circuit

 

No. 05-2143

 

GENC ISLAMI,

 

Petitioner,

 

v.

 

ALBERTO GONZALES, UNITED STATES ATTORNEY GENERAL,

 

Respondent.

 

 

ON PETITION FOR REVIEW OF A

DECISION OF THE BOARD OF IMMIGRATION APPEALS

 

 

Before

 

 Torruella, Circuit Judge,

Hug,

[1]

Senior Circuit Judge,

and Lynch, Circuit Judge.

    James D. Christo, on brief for petitioner.

    Jean B. Weld, Assistant United States Attorney, United States

Attorney's Office, and Thomas P. Colantuono, United States

Attorney, on brief for respondent.

 

July 5, 2006

 

 

    Per Curiam. Genc Islami ("Islami"), an Albanian citizen who

emigrated to the United States in 2000 on a fraudulent passport,

applied for asylum, withholding of removal, and relief under the

Convention Against Torture. The BIA held that even assuming Islami

had suffered past persecution, country conditions in Albania have

changed and Islami no longer has a well-founded fear of persecution

in Albania, and it dismissed his appeal. Holding substantial

evidence supports the BIA’s decision, we DENY Islami’s petition for

review.

 

I. Background

    Islami is a thirty year-old Albanian native who emigrated to

the United States to escape mistreatment by the Albanian police for

his expressive activities in opposition to the communist government

then in power. Islami conceded removability but applied for

political asylum under Section 208 of the Immigration and

Nationality Act, withholding of removal under Section 241(b)(3) of

the Act, and relief under Article III of the Convention Against

Torture. Claiming past persecution "at the hands of the [Albanian]

government, police and individuals it failed/refused to control,”

Islami testified to receiving two beatings by Albanian police, one

in 1991 and one in 1998; to receiving death threats from persons

who, Islami suspects, were former Secret Police officers; to

authoring letters to U.S. Congressmen criticizing the Albanian

government as abusive; and to his belief that the "Albanian

government and/or its agents" would "kill" him if he returned to

Albania because he "all the time has opposed the [communist]

government," and to his belief that the current government of

Albania is, in fact, a communist government in disguise.

[2]

    The IJ found Islami's testimony to be credible but doubted

that the two beatings in 1991 and 1998 and subsequent threats

qualified as "persecution" on account of real or imputed

anti-government political opinion. However, the IJ did not reach

that issue because he found that Albanian country conditions had

changed, and Islami no longer had an objectively well-founded fear

of future persecution. Because the "clear probability" standard

for withholding of removal and relief under the Convention Against

Torture is more rigorous than the well-founded-fear requirement for

asylum, the IJ denied all forms of relief and ordered Islami

removed to Albania. The BIA agreed and dismissed the appeal.

 

II. Discussion 

    We have jurisdiction pursuant to 8 U.S.C. 1252(d) because

Islami exhausted his administrative remedies. See 8 U.S.C. §

1252(d)(1). We review findings of fact and credibility by the BIA

"under a deferential 'substantial evidence' standard."

Alvarez-Flores v. INS, 909 F.2d 1, 3 (1st Cir. 1990); Novoa-Umania

v. INS, 896 F.2d 1, 2 (1st Cir. 1990) ("[W]e must uphold any

finding of fact that is supported by 'substantial evidence.'").

BIA determinations of statutory eligibility for relief from

deportation, whether via asylum or withholding or removal, are

conclusive if "supported by reasonable, substantial, and probative

evidence on the record considered as a whole." Gebremichael v.

INS, 10 F.3d 28, 31 (1st Cir. 1993). Absent an error of law, the

BIA's decisions may be overruled only if the evidence "points

unerringly in the opposite direction." Laurent v. Ashcroft, 359

F.3d 59, 64 (1st Cir. 2004).

    An applicant for asylum bears the burden to prove the criteria

for asylum, and the criteria for any withholding of removal

requested. Nikijuluw v. Gonzales, 427 F.3d 115, 120 (1st Cir.

2005); Matter of Acosta, 19 I & N Dec. 211 (BIA 1985), modified on

other grounds, Matter of Mogharrabi, 19 I & N Dec. 439 (BIA 1987).

A credible showing of past persecution gives rise to a regulatory

presumption that the applicant has a well-founded fear of future

persecution. See In Re H, 21 I. & N. Dec. 337, 346 (BIA 1996); 8 C.F.R. § 208.13(b)(1). Islami criticizes the BIA’s finding that

the Attorney General successfully rebutted this presumption by

showing changed country conditions in Albania.

    Even if Islami had suffered past persecution, substantial

evidence supports the BIA’s finding conditions in Albania have

improved. Islami’s ordinary presumption of a well-founded fear is

rebutted by a preponderance of evidence that "[t]here has been a

fundamental change in circumstances such that [Islami] no longer

has a well-founded fear of persecution in [his] country of

nationality." 8 C.F.R. § 208.13(b)(1)(i)(A). We do not dispute

that Islami’s fear is subjectively genuine. However, his fear must

also be objectively reasonable," Aguilar-Solis v. INS, 168 F.3d

565, 572 (1st Cir. 1999), shown "’by credible, direct, and specific

evidence, ... facts that would support a reasonable fear that the

petitioner faces persecution.’" Guzman v. INS, 327 F.3d 11, 16

(1st Cir. 2003). We hold that Islami’s fear cannot be objectively

reasonable because substantial evidence supports the BIA’s finding

that, today, Albanians need not have the same fear of significant

police harassment on account of their political opinions.

    Several recent political developments offer cause for

optimism, at least on paper. Albania is now a republic comprised

of a multi-party parliament. Its constitution expressly prohibits

police and other governmental authorities from engaging in torture,

degrading or inhumane treatment, or forcibly obtaining confessions.

It provides for an independent judiciary, the right to a fair,

speedy and public trial, freedom of assembly, and peaceful change

of government. The Albanian Penal Procedures Code provides

guidelines for the detention of suspects, in addition to counsel

for indigent detainees. Moreover, Albania appears to have joined

several international human rights agreements, including the

International Covenant on Civil and Political Rights; the United

Nations Convention Against Torture; the European Convention for the

Protection of Human Rights and Fundamental Freedoms ("ECHR"); the

European Convention for the Prevention of Torture and Inhuman or

Degrading Treatment or Punishment; and Protocol No. 6 to the ECHR

abolishing the death penalty.

    The Albanian Parliament has elected a national People’s

Advocate charged with investigating and prosecuting official

abuses, including police mistreatment, and successful prosecutions

have occurred. Amnesty International reports that human rights

training is now provided to the police by international human

rights organizations at a centralized police academy. And the

latest evidence shows these steps may be having an effect:

political killings or disappearances appear to have declined;

elections have had fewer irregularities; political parties, trade

unions, and various social groups, although still facing political

pressure, may now publish their own newspapers; and human rights

groups in Albania report fewer incidents of police beatings. Where

police beatings have occurred, there have been reports of

successful prosecutions.

    Although police brutality does remain a problem in Albania,

substantial evidence suggests that it is one of abuse of authority.

It does not appear to be directed at repressing political

viewpoints. Every Albanian citizen is a potential victim. Yet,

this fact does not render every Albanian citizen eligible for

political asylum in the United States. In Islami's case,

substantial evidence supports the BIA's finding that, in light of

the many changes Albania has experienced over the six years since

Islami left, there is simply no reason to believe that Islami's

return would be met with any more than indifference – and certainly

not that Islami would immediately be singled out for persecution.

    Islami terminated his membership in the Albania Youth

Democratic Party Forum in 1994, he is not a member of the current

opposition Democratic Party, and Islami offered no evidence that

his political involvements since 2000 have drawn the attention of

the new Socialist government, or its supporters. Moreover,

"[t]here is nothing in the State Department reports that indicate

that the Socialist party routinely arrests, jails, or persecutes

members of the Democratic Party." Hasalla v. Ashcroft, 367 F.3d

799, 804 (8th Cir. 2004) (holding that changed country conditions

in Albania rebutted a presumption that an Albanian Democratic Party

member persecuted under the communist regime and harassed from 1995

through 1998 had a well-founded fear that he would suffer future

persecution). To the contrary, the Democratic Party is now the

second largest party in the Albanian Parliament, with significant

representation.

 

III. Conclusion

    Although changed country conditions will not automatically

rebut an applicant’s presumption of well-founded fear, the evidence

here negates Islami’s well-founded fear of future persecution. See

Fergiste v. INS, 138 F.3d 14, 19 (1st Cir. 1998) ("[C]hanges in

country conditions must be shown to have negated the particular

applicant's well-founded fear..."). Therefore, because substantial

evidence supports the BIA’s affirmance of the IJ’s denial of

asylum, withholding of removal, and relief under the Convention

Against Torture, we DENY Islami’s petition.

 

Footnotes

[1] 'Of the Ninth Circuit, sitting by designation.

[2] '  The State Department has concluded that many asylum requests by

Albanians assert, as Islami does, that the present Socialist

government is really the old Communist Party reconstituted;

however, this is not borne out by Department of State documents,

including Albania – Country Report on Human Rights Practices – 2003

(issued in 2004).

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