Hysaj v. Ashcroft

99 F. App'x 73
CourtCourt of Appeals for the Seventh Circuit
DecidedMay 7, 2004
DocketNo. 03-1924
StatusPublished

This text of 99 F. App'x 73 (Hysaj 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
Hysaj v. Ashcroft, 99 F. App'x 73 (7th Cir. 2004).

Opinion

ORDER

Albanian citizen Ermal Hysaj entered the United States without inspection in December 1998 and six weeks later applied for asylum. The INS subsequently charged him with removability, which Hysaj conceded. Although the Immigration Judge found Hysaj’s testimony and corroborating evidence credible, the IJ ultimately held that Hysaj was not eligible for asylum or withholding of removal. The Board of Immigration Appeals affirmed without opinion. We now deny Hysaj’s petition for review of the Board’s decision.

The facts of this case come from Hysaj’s testimony, which the IJ found credible and uncontradicted. Hysaj participated in Albania’s 1997 parliamentary elections as a district election official in his home city of Durres. The 1997 elections were marred country-wide by corruption, voter intimidation, and violence. In one extreme case of open violence, an election official appointed by the Socialist Party was killed at a polling place during a run-off election. International election observers credited the majority of fraud and violence to both the ruling Democratic Party and the rising Socialist Party.

Hysaj was not politically active before the 1997 elections. Because he was not aligned with the Democratic Party, which dominated local politics in Durres, representatives of the Socialist Party asked Hysaj to act as vice chairman of District 38’s election commission. There were numerous candidates running in District 38’s [75]*75parliamentary election, but the favored candidate was Democrat Luan Malltezi. Malltezi was married to the daughter of Democratic Party leader Sali Berisha, who served as Albania’s president from 1992 until he was replaced in the 1997 elections.

On election day, Hysaj was awaiting votes at the election headquarters in Durres when he was approached in the hallway by two strangers. These men “ordered” him to refuse to certify results from any zone in which Malltezi lost. They spoke with northern Albanian accents, and because of their accents and their message, Hysaj assumed they were representatives of Berisha, whose base and political stronghold is in northern Albania. Despite the warnings, Hysaj certified the election results, which did not give any candidate a majority of votes. Because there was no clear winner, a run-off election between the top two vote takers— Malltezi and the Socialist candidate, Natasha Paco — was scheduled to take place a week later.

The day after the general election, Hysaj was approached in the town square, this time by three different men with northern Albanian accents. The men pushed Hysaj and told him that he should not have signed the results the day before because the Democratic candidate had not conclusively won. The men then told Hysaj that if he certified a Socialist victory in the run-off election, they would kill him. Despite his nervousness about the warnings, Hysaj certified the vote totals that made Socialist candidate Paco the winner. Socialists also won in a majority of other districts, and the Socialists replaced the Democrats as the ruling party in Albania.

Two days after the run-off elections, Hysaj was at work when a group of men with northern accents came to his neighborhood asking for him. Fearing that these men were planning to kill him, Hysaj did not return home and instead went into hiding at a relative’s house in Tirana, the capital of Albania. While in hiding, apparently with the help of the newly elected Paco and the Albanian minister of defense, Hysaj secretly arranged to go to a military academy in Italy as part of a ministry of defense scholarship program. Hysaj began the program in Italy in the fall of 1997. After a few months in the academy, Hysaj developed severe ulcers and was sent home to Durres. He returned to his home because he had nowhere else to recover, but told only his immediate family that he was coming home, did not leave his house for the month that he was there, and returned back to school in secret.

In April 1998, Hysaj left school and returned home a second time for a week-long vacation. He believed that he would be in less danger because more time had passed since the elections. He did not encounter any trouble while he was home, but two weeks after returning to Italy he received a call from someone with a northern Albanian accent who told him, “We know where you are now ... and we’re going to find you.” According to the caller identification on Hysaj’s phone, the call had been made from a payphone in Italy. Two weeks after that call, a worker at the local McDonald’s, who was also Albanian, told Hysaj that an Albanian man had recently come into the restaurant and asked the worker if he knew anyone at the military academy named Ermal. Fearing that he was still a target of the Democratic Party, Hysaj did not leave the enclosed school campus for the rest of the academic year. At the end of the semester, he fled to Milan and worked under an assumed identity until he had earned enough money to pay a smuggler to take him to the United States by way of Mexico.

After reviewing the record, the IJ concluded that Hysaj’s “experiences both during and in the aftermath of the June, 1997 elections [did] not reveal a level of mis[76]*76treatment that is tantamount to ‘persecution.’ ” The IJ went on to hold that Hysaj’s past encounters with the government were not of such a “magnitude or frequency” as to create a reasonable fear of future persecution. Because the BIA adopted the IJ’s ruling, see 8 C.F.R. § 1003.1(a)(7), we review the IJ’s decision, reversing only if the ruling lacks substantial evidence to support the IJ’s factual conclusions. See Krouchevski v. Ashcroft, 344 F.3d 670, 673 (7th Cir.2003). We will overturn an IJ’s finding of no persecution only if specific evidence in the record compels a finding of persecution. Dandan v. Ashcroft, 339 F.3d 567, 573-74 (7th Cir.2003).

The Attorney General has discretion to grant asylum to any alien who qualifies as a “refugee.” 8 U.S.C. § 1158(b). A refugee is an alien “who is unable or unwilling” to return to his home country “because of persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). If an applicant proves that he was persecuted by his government in the past, a rebuttable presumption arises that he has a well-founded fear of future persecution. Capric v. Ashcroft, 355 F.3d 1075, 1084 (7th Cir.2004). The burden of proof then shifts to the government to overcome that presumption by showing that the applicant’s fear is no longer well-founded. Id. An applicant can alternatively qualify as a refugee, regardless of a showing of past persecution, if he can demonstrate that he has a subjectively genuine and objectively reasonable well-founded fear of future persecution. Id. at 1084-85.

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