Erebara v. Ashcroft

124 F. App'x 444
CourtCourt of Appeals for the Seventh Circuit
DecidedFebruary 18, 2005
DocketNos. 03-1201, A77-833-412, A77-833-413
StatusPublished
Cited by1 cases

This text of 124 F. App'x 444 (Erebara v. Ashcroft) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Erebara v. Ashcroft, 124 F. App'x 444 (7th Cir. 2005).

Opinion

ORDER

Erlind Erebara, a Muslim and ethnic Albanian from Kosovo, petitions for review of the BIA’s order denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). His Albanian wife, Matilda Erebara, joins the petition. Erebara’s request for asylum was denied by the IJ and subsequently by the BIA in a summary affirmance. We deny the petition.

Erebara, who was born in 1973, fled Kosovo for the United States in July 1999. He asserts that in Kosovo a notorious thug and former secret police officer named Vuk Petrovic threatened his life several times because of his family — which he characterizes in his asylum application as a [445]*445“social group” that has been subject to persecution. The threats stem from the 1988 death of Petrovic’s brother, who was under the care of Erebara’s father, a doctor. Petrovic’s brother had been brought with unspecified “wounds” to the local hospital where Erebara’s father was working as “head of the night shift.” The brother died, however, and Erebara asserts that Petrovic “blame[d] it on my father.” Three years later, in April 1991, Erebara’s father collapsed and died on the family doorstep after returning, a friend later told Erebara, from meeting Petrovic at a local coffee shop. Although hospital authorities concluded in an apparent autopsy that the father died of natural causes, Erebara is convinced, after speaking with a doctor friend of his father’s, that Petrovic poisoned his father in revenge for his brother’s death.

Erebara himself met Petrovic only once, in July 1999, in his home town of Pristina. Erebara was walking down the street with several others when Petrovic passed by, “picked me up out of the crowd and told me that you’ll end up like your father.” Alarmed, Erebara left Kosovo that same day to get his wife in Albania; within two days, they had purchased false passports and left for the United States. Before Erebara left for Albania — and presumably before he bumped into Petrovic, although the record is unclear on this point — his wife received an anonymous telephone call threatening that “pretty soon you’re going to be a widow.” Erebara suspects Petrovic made the threatening call.

Erebara’s asylum application stated an additional basis for his persecution claim: two incidents unrelated to Vuk Petrovic in which he was physically abused by Serbian police officers because of his race (ethnic Albanian) and religion (Muslim). Erebara testified that in February 1992 Serbian police came to his home “looking for weapons which we never had.” Erebara further testified that the officers “started beating my mother,” and that when he tried to intervene, they began “beating, kicking, and pushing [me].” Erebara’s mother died of a heart attack one month later, although nothing in the record ties her death to the encounter. The second incident took place in December 1997. Erebara, who is a musician, was returning late at night from performing at a wedding when he was accosted by Serbian police officers. They told him, “if you keep on playing Albanian weddings we’ll cut off your fingers,” and, breaking off a bottle, “tried to amputate one of [his] fingers.” According to Erebara’s asylum application, “one of the officers sliced open my right hand using [the] broken beer bottle, creating a flesh would [sic] across my palm.” But just then, several people “began to walk by and the Officer stopped.” Erebara’s application stated that the wound had prevented him from performing for six months, and he testified at the hearing that he still bore a scar on his palm.

Erebara filed his asylum application in October 1999, and immigration authorities initiated removal proceedings several months later. In denying the application, the IJ separately addressed Petrovic’s threats and one of the assaults by Serbian police officers. The IJ first concluded that Petrovic’s threats did not constitute persecution: no proof supported Erebara’s speculation that Petrovic had murdered his father; the incident in which Petrovic allegedly threatened Erebara in 1999 was “highly implausible” because Petrovic, an alleged war criminal, would not have freely walked the streets of Pristina for fear of being apprehended by UN or NATO forces. The IJ also stated that the 1992 incident in which Erebara and his mother were attacked did not rise to the level of past persecution because Erebara was neither detained nor suffered further conse[446]*446quences from the incident. In addition, the IJ stated that even if Erebara had been able to demonstrate past persecution at the hands of either Petrovic or the Serbian police, “the dramatic change in the Yugoslav government” made it “highly unlikely” that he would be subject to future threats or mistreatment upon returning. The IJ granted Erebara voluntary departure, and the BIA affirmed without opinion.

We review the IJ’s factual findings under a highly deferential version of the substantial evidence test. Awad v. Ashcroft, 328 F.3d 336, 341 (7th Cir.2003). We will reject the IJ’s findings only upon such compelling evidence that no reasonable fact finder could fail to find the required fear of persecution. Id.

Erebara must demonstrate that he is a refugee in order to be considered for asylum. Under 8 U.S.C. § 1101(a)(42)(A), a refugee is an individual who fears returning to his or her native country because of “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” While there is no statutory definition of persecution, we have described it as inflicting harm or punishment for reasons that this country views as illegitimate. Sofinet v. INS, 196 F.3d 742, 746 (7th Cir.1999). An individual who demonstrates past persecution is presumed to have a well-founded fear of future persecution; however, if that presumption is rebutted by evidence of changed circumstances, past persecution alone will warrant a grant of asylum only when it is particularly severe. Id. at 747; 8 C.F.R. § 1208.13(b)(l)(iii)(A).

In this petition, Erebara first argues that the IJ should have given greater weight to the threats that Vuk Petrovic made against him and his wife. He states that when evaluated “cumulatively,” these threats — as well as the two run-ins with Serbian police — constitute persecution. Petrovic’s threats cannot qualify Erebara for asylum, but the IJ failed to mention the most obvious reason: the lack of a nexus between any persecution and Erebara’s membership in a particular social group. See 8 U.S.C. § 1101(a)(42)(A); Tamas-Mercea v. Reno, 222 F.3d 417, 425-26 (7th Cir.2000) (emphasizing that any persecution must be “on account of’ one of five protected grounds to warrant asylum). Erebara contends that Petrovic sought him out because he belonged to a prominent Albanian family, and the family can indeed count as “a particular social group” for asylum purposes. See Iliev v. INS,

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124 F. App'x 444, Counsel Stack Legal Research, https://law.counselstack.com/opinion/erebara-v-ashcroft-ca7-2005.