Boci, Dhurata v. Gonzales, Alberto R. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3231
VALI AND DHURATA BOCI,
Petitioners,
v.
ALBERTO R. GONZALES,
Respondent.
____________
On Petition for Review of an Order
of the Board of Immigration Appeals.
Case Nos. A-79-437-236, A-79-437-241
____________
ARGUED NOVEMBER 28, 2006—DECIDED JANUARY 12, 2007
____________
Before FLAUM, MANION, and WILLIAMS, Circuit Judges.
FLAUM, Circuit Judge. On March 4, 2002, Vali and
Dhurata Boci, a married couple from Albania, arrived
in the United States, presented fraudulent travel docu-
ments, and were detained by the Department of Home-
land Security (“DHS”). After DHS commenced removal
proceedings, the Bocis sought asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). On June 25, 2004, the immigration judge (“IJ”)
denied the Bocis’ requests, holding that they had demon-
strated neither past persecution nor a well-founded fear
of future persecution. The Board of Immigration Appeals
(“BIA”) affirmed the IJ’s decision, and the Bocis now
2 No. 05-3231
petition this Court for review. For the following reasons,
we deny the Bocis’ petition.
I. BACKGROUND
Vali Boci was born on August 7, 1973 in Lazarat in the
southern part of Albania. On March 25, 2001, he married
Dhurata. Historically, Vali’s family associated with the
Democratic Party, and, in 1970, during the Communist
Regime, Vali’s uncle Ali fled Albania for the United
States. Upon the Ali’s flight, the Communist government
targeted the Boci family. From 1979 to 1981, the govern-
ment detained Vali’s father, Nesim Boci, and prevented
his cousins from attending school. In 1990, the Com-
munist regime fell, and the 1992 elections brought the
Democratic Party into power. Two of Vali’s uncles, Bujar
and Zagoll Mele, worked as police officers while the
Democratic Party was in control. In 1991, Vali’s father-in-
law, who previously was involved in the Communist Party,
joined the Democratic Party. On January 25, 1993, Vali
became a member of the Democratic Party.
In late 1996 and early 1997, Albania was in chaos
following the collapse of the pyramid schemes.1 Amid
the chaos, the Socialist Party gained power and subse-
quently targeted Vali’s family as Democratic Party sup-
porters. The Socialist Party promptly fired Vali’s two
1
During this time period, several large financial pyramid
schemes dominated the country. See Christopher Jarvis, The
Rise and Fall of Albania’s Pyramid Schemes, 37 FINANCE &
DEVELOPMENT, (March 2000) available at http://www.imf.org/
external/ pubs/ft/fandd/2000/03/jarvis.htm. Many Albanians—
about two-thirds of the population—invested in them. Id. When
the schemes collapsed, there was uncontained rioting, the
government fell, and the country descended into anarchy and
a near civil war in which some 2,000 people were killed. Id.
No. 05-3231 3
uncles, who had been police officers for more than five
years. Then, on February 6, 1998, someone placed an
explosive near Dhurata’s house, destroying the right side
of it. Vali believes the purpose of this explosion was to kill
his wife’s family, but, fortunately, the blast only injured
Dhurata’s family members. Although Dhurata’s father
reported the explosion to the police, they never charged
or arrested anyone for the offense. The police came to the
scene of the accident, but they did not take any photo-
graphs or ask any questions. Later that same year, on
September 12, someone burned down Dhurata’s father’s
warehouse.
In October 2001, during local elections, Vali acted as
an observer at a polling station, where he witnessed
and took notes of numerous irregularities. When the
police learned of his activities, they took him outside,
asked to see his notes, and threatened to detain him if
he made the notes public. Despite the officers’ threats,
Vali later gave his notes to the proper authorities. Al-
though observers from other political parties also took
notes during the election, the police did not detain or
question them.
In early 2002, Vali decided to flee Albania after an
unknown person murdered his cousin, who was also a
Democratic Party member. On March 4, 2002, fearing
for their lives, Vali and Dhurata used Italian passports
to travel to the United States. Vali testified that he
believed he would be placed in jail or killed if he re-
turned to Albania. Presently, with the exception of his
sister living in Italy and his uncle living in the United
States, Vali’s family, including his parents, siblings,
aunts, and uncles, live in Albania. Dhurata’s parents also
remain in Albania.
Dhurata Boci corroborated her husband’s testimony,
with some additional information. Dhurata stated that
4 No. 05-3231
she was twenty years old and was not a member of any
Albanian political party, although her husband and father
were both members of the Democratic Party. Her father
participated in Democratic meetings and rallies, but
Dhurata did not attend any of those meetings. She did,
however, discuss the meetings with her father. According
to Dhurata, the Socialist Party feared that her father
would disclose former acts of the Communist Party to
the Democratic Party. She also believed that Socialists
perpetrated the explosion at her home on February 6,
1998 because of her father’s Democratic Party member-
ship. Although she was present on the night in question,
she did not see who placed the explosives near the house.
Dhurata testified that beginning in 1998, individuals
threatened and harassed her on the way to school.2 They
told Dhurata that if her father did not change his way
and join the Socialist Party, she would be killed. She
received these threats until she left Albania. Dhurata
stated that she feared returning to Albania because she
believed members of the Socialist Party would kill her.
Throughout the hearing, the IJ repeatedly questioned
the Bocis. At several different times, the IJ expressed
impatience and asked the Bocis’ attorney to move things
along. He cut off a line of questioning about the Boci
family’s political history, noting that its relevance and
probative value were weak and that time was limited. At
least two different times, the IJ criticized the Boci’s
Albanian-speaking attorney for challenging the transla-
tion of questions, stating, “The attorney for the respondent
is not interpreting. He cannot have two roles. He can’t
act as interpreter and as advocate.” Transcript of Im-
migration Hearing at 64, Boci v. Gonzales, Nos. A-79-437-
2
Dhurata’s husband and family later identified the harassing
individuals as members of the Socialist party.
No. 05-3231 5
236 and A-79-437-241 (Feb. 3, 2004) (hereinafter “Tr.”).
The IJ also expressed impatience with Vali Boci when he
offered extra information, did not give a direct answer to
a question on cross examination, or began speaking be-
fore the government’s lawyer finished a question.3
At one point in the hearing, the Bocis’ attorney re-
marked, “with all due respect, Your Honor, the the [sic]
attitude that’s coming across at this point is very con-
frontational.” Tr. at 52. After disagreeing with the attor-
ney’s assessment, the IJ added, “Counsel, counsel, counsel,
listen to me. We only have so much time. It’s now approxi-
mately [10:40]. All right. We started the case at 9:30. All
right? All right. We only have so much time.” Id.
The Bocis petition this Court for review, claiming that
the IJ and BIA erred in finding that they were ineligible
for relief and alleging that they were denied due process
of law.
II. DISCUSSION
Where, as here, the BIA summarily adopts the IJ’s
decision, this Court reviews the IJ’s factual findings and
3
The following exchange is representative of the IJ’s tempera-
ment at various moments throughout the hearing:
IJ: Don’t give us extraneous material. Just answer his
question. All right?
Vali Boci: I’m trying to answer to the best of my knowledge.
IJ: Sir, you’re being repetitive on your answers. All right.
We’ve heard your story, we know your story now. You don’t
have to repeat it each time when you give an answer to the
question. We don’t want the background information
anymore. You’ve said it repetitively here. We have the
message. All right? All right. So listen to the question and
answer the question.
Tr. at 101.
6 No. 05-3231
reasoning as though they were the Board’s. Mousa v. INS,
223 F.3d 425, 428 (7th Cir. 2000). We must uphold the
BIA’s denial of relief so long as it is “supported by rea-
sonable, substantial and probative evidence on the rec-
ord considered as a whole.” INS v. Elias-Zacarias, 502
U.S. 478, 481 (1992) (internal quotation and citation
omitted). Reversal is appropriate only if the record com-
pels granting the applicant asylum. Id. Asylum is avail-
able to persons who have suffered past persecution or
have 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);
Feto v. Gonzales, 433 F.3d 907, 911 (7th Cir. 2006). Here,
the Bocis point to their membership in and association
with the Democratic Party as well as their membership
in the social groups comprised of their respective families.
An applicant who successfully proves past persecu-
tion is presumed to have a well-founded fear of future per-
secution, but the government can rebut that presumption
by showing a change in conditions in an applicant’s
homeland. See, e.g., Gjerazi v. Gonzales, 435 F.3d 800, 808
(7th Cir. 2006). Alternatively, an applicant demonstrates
a well-founded fear of future persecution if his or her
fear is both subjectively genuine and objectively reason-
able in light of credible evidence. Id.
We have defined persecution as “punishment or the
infliction of harm for political, religious, or other reasons
that this country does not recognize as legitimate.”
Dandan v. Ashcroft, 339 F.3d 567, 573 (7th Cir. 2003)
(citations and quotations omitted). Although the term
includes “actions less severe than threats to life or free-
dom, actions must rise above the level of mere harass-
ment to constitute persecution.” Id. In fact, we have noted
that in order to be an act of persecution, the behavior in
question “must threaten death, imprisonment, or the
No. 05-3231 7
infliction of substantial harm or suffering.” Sharif v. INS,
87 F.3d 932, 935 (7th Cir. 1996).
A. Past Persecution or Well-Founded Fear of
Future Persecution
Petitioners seeking to establish past persecution must
satisfy a heavy evidentiary burden. Indeed, our standard
on review is “difficult to meet without powerful and
moving evidence.” Dandan, 339 F.3d at 573-74. A survey
of analogous cases demonstrates that the Bocis have not
met this exacting standard because their evidence does
not compel a finding of past persecution.
In Cecaj v. Gonzales, we vacated the removal order of
an Albanian Democrat, noting numerous circumstances
indicative of past persecution. 440 F.3d 897 (7th Cir. 2006).
In that case, the petitioner was detained for six days and
beaten by masked police so badly that he required hospi-
talization. Id. at 898. Soon after, a member of the Socialist
Party fired a gun near his head. Id. He received threaten-
ing phone calls regularly and suffered a second arrest and
beating by the police during his campaign for public office,
allegedly for not having proper identification papers. Id.
Finally, his ten-year-old brother was kidnapped by persons
who told the child that the crime was motivated by the
petitioner’s political activity. Id.
By contrast, in Hasanaj v. Ashcroft, we affirmed the
BIA’s denial of asylum where a gang of Socialists threat-
ened an Albanian Democratic Party member at gunpoint
and set his car on fire, but did not physically harm him.
385 F.3d 780, 782 (7th Cir. 2004). We affirmed the BIA’s
conclusion that the petitioner’s claims did not rise to the
level of persecution, emphasizing that the petitioner was
an average party member in a broad-based Democratic
movement. Id. Moreover, we reasoned, the petitioner’s
8 No. 05-3231
encounter with the gang could be attributed to wide-
spread lawlessness in the country at the time, rather than
his being singled out for his political beliefs. Id. at 782-83.
Petitioners direct us to Asani v. INS, 154 F.3d 719, 722-
23 (7th Cir. 1998), in which we reversed the BIA’s denial
of asylum where the police detained the petitioner for two
weeks, knocked out two of his teeth, and deprived him of
food.
Unlike the petitioners in Cecaj and Asani, the Bocis have
not demonstrated physical harm or abuse. As this Circuit
recognized in Diallo v. Ashcroft, 381 F.3d 687, 698 (7th Cir.
2004), “short detentions or detentions without physi-
cal abuse seem to have been less apt to reach the ‘persecu-
tion’ threshold required by this court.” Vali was tempo-
rarily detained once and released without injury. Although
someone killed his cousin, Vali had no way of knowing
if the murder was politically motivated. Similarly, while
Socialists and Communists historically harassed Vali’s
family because of their political involvement, Vali was not
the subject of the harassment.
Likewise, even though Dhurata’s family’s home and
warehouse were both burned down, she did not know who
committed these crimes. As a result, she could only
speculate that they were politically motivated rather
than a result of widespread lawlessness at the time.
Although Socialist Party members harassed Dhurata over
a period of years, they never harmed her. Moreover, most
of the Bocis’ family members (the very ones who were
allegedly victimized) remain in Albania. We therefore
hold that the Bocis’ evidence does not compel a finding of
past persecution and accordingly affirm the BIA’s finding.
Nor have the Bocis demonstrated a well-founded fear of
future persecution. Even assuming that the Bocis have a
subjectively genuine fear of future persecution, their fear
is not objectively reasonable. See Sayaxing v. INS, 179
No. 05-3231 9
F.3d 515, 519-20 (7th Cir. 1999). Although the Bocis need
not establish “certain persecution” or even that persecu-
tion is “highly probable” should they return to Albania,
they must show that it is a “reasonable possibility.”
Gjerazi, 435 F.3d at 808 (citing INS v. Cardoza-Fonseca,
480 U.S. 421, 430-32 (1987)). Given that the Bocis have not
established past persecution and their families have
remained in Albania without further incident, we decline
to reverse the BIA’s finding that the Bocis did not establish
a well-founded fear of future persecution.
B. Withholding of Removal and Relief under CAT
In the alternative, the Bocis seek withholding of removal
and relief under CAT. To qualify for withholding of
removal, an alien bears the burden of proof and “must
demonstrate a ‘clear probability’ that he or she will face
persecution in the country to which he or she will be
removed.” Firmansjah v. Gonzales, 424 F.3d 598, 605 (7th
Cir. 2005) (citation omitted). The clear probability stan-
dard is “a more stringent test than the standard for
establishing eligibility for asylum,” id., and since the
Bocis have not satisfied the less stringent asylum stan-
dard, they do not qualify for withholding of removal.
Finally, the Bocis seek protection under CAT. We re-
view the BIA’s denial of relief on this ground under the
substantial evidence standard, once again asking whether
“the record compels a contrary result.” Mabasa v. Gonza-
les, 455 F.3d at 744 (7th Cir. 2006) (internal quotation
and citations omitted). To obtain relief under CAT, the
Bocis must show that “it is more likely than not that if
removed to [Albania, they] will be subject to torture.”
Boyanivskyy v. Gonzales, 450 F.3d 286, 292 n.3 (7th Cir.
2006) (citing 8 C.F.R. § 208.16(c)(2)). Federal regulations
define torture as:
10 No. 05-3231
[A]ny act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a
person for such purposes as obtaining from him or her
or a third person information or a confession, punish-
ing him or her for an act he or she or a third person
has committed or is suspected of having committed, or
intimidating or coercing him or her or a third person,
or for any reason based on discrimination of any kind,
when such pain or suffering is inflicted by or at the
instigation of or with the consent or acquiescence of a
public official or other person acting in an official
capacity.
8 C.F.R. § 208.18(a)(1). Because the Bocis have provided
little, if any, evidence of torture as defined by federal
regulations, the record does not compel granting them
relief under CAT.
C. Denial of Due Process
The Bocis next argue that the IJ denied them a reason-
able opportunity to present their claims for asylum. We
review this due process challenge de novo, because the
question of whether an immigration hearing violates due
process is a purely legal one. Kerciku v. INS, 314 F.3d 913,
917 (7th Cir. 2003).
Under 8 C.F.R. § 1229a(b)(4)(B), an alien in any immi-
gration proceeding is entitled to, among other things, a
reasonable opportunity to examine and object to the
evidence against him or her, to present evidence on his
or her own behalf, and to cross-examine witnesses pre-
sented by the government. We have said that “[i]n the
context of political asylum, due process requires, among
other things, that an applicant receive ‘a meaningful
opportunity to be heard.’ ” Kerciku, 314 F.3d at 917 (citing
Nazarova v. INS, 171 F.3d 478, 482 (7th Cir. 1999)). To
No. 05-3231 11
receive a new hearing, a petitioner must demonstrate a
denial of due process as well as resulting prejudice. See
Capric v. Ashcroft, 355 F.3d 1075, 1087 (7th Cir. 2004).
Prejudice occurs when the due process transgression is
“likely to impact the results of the proceedings.” Id.
at 1087-88.
The Bocis contend that the IJ’s confrontational attitude,
routine interruptions, and incessant questioning denied
them due process. We disagree. An IJ’s large docket
makes his time a limited resource, so he must strive to
provide fair procedures while efficiently managing his
docket. In this case, the IJ’s insistence on moving things
along did not deny the Bocis a meaningful opportunity
to be heard because they were still able to develop a
significant record. Nor did the IJ’s questioning violate
due process. During an asylum hearing, “[a]n immigra-
tion judge is permitted to interrogate, examine, and cross-
examine the alien and any witnesses.” See Diallo, 381
F.3d at 701 (citing 8 U.S.C. § 1229a(b)(1)). Unlike an
Article III judge, an immigration judge is not merely
the fact-finder and adjudicator; he also has an obligation
to establish the record. Hasanaj, 385 F.3d at 783. Ques-
tioning by the IJ may cross the line, however, when it
“becomes so aggressive that it frazzles applicants and nit-
picks inconsistencies,” thus distorting the record. Giday v.
Gonzales, 434 F.3d 543, 549 (7th Cir. 2006). Here, the IJ’s
questioning, although extensive at times, was not so
aggressive as to distort the record.
To support their due process claim, the Bocis point to
Podio v. INS, in which we found a due process violation
where the IJ interrupted testimony, overtook questioning,
and excluded important testimony. 153 F.3d 506, 509-510
(7th Cir. 1998). Podio is inapplicable, however, because
even assuming that the IJ conducted an inappropriate
examination, the Bocis have not established prejudice.
12 No. 05-3231
The Bocis identify three ways in which the alleged
denial prejudiced them: 1) the IJ’s behavior prevented
them from fully developing the significance of Dhurata’s
father’s switch from the Communist to the Democratic
Party; the IJ cut off an important line of questioning
about the persecution of Vali’s family under a previous
regime; and the IJ intimidated them so that they could
not express themselves fully during the hearing.4 Despite
their claims of prejudice, the Bocis do not specifically
identify additional testimony that they would have offered
4
At oral argument, the Bocis’ attorney emphasized one ex-
change between Vali and the IJ about livestock, arguing that the
IJ’s preoccupation with pigs deprived the Bocis of the opportunity
to make their case by wasting precious time. The following
exchange occurred as Vali testified about his father:
Q. What did he do before retiring?
A. He was doing—he was taking care of the livestock that we
had, livestock—
Q. Livestock—
A.—that we had and like most of the families in the village
do around the—the work around the house.
Q. And livestock, are we talking about lambs? What are we
talking about? Pigs? What?
A. We had a few cows and also we had a few calves—cows.
...
Q. Cows. And what else?
...
Q. No pigs, huh?
A. No.
Q. No chickens?
A. Yes. A lot of chickens.
Tr. at 30-31. Not only is the exchange quite brief, it was rele-
vant to Vali’s family’s socioeconomic status in Albania.
No. 05-3231 13
to develop a more complete record. In fact, they were able
to testify at length about Dhurata’s father’s affiliations
with the Communist and Democratic Parties. Moreover,
any excluded testimony about Vali’s family history was
neither relevant nor probative to their asylum claim
because it related to events that happened many years
prior to the hearing. In short, further elaboration on
these issues would not have changed the outcome of the
case. See Ciorba v. Ashcroft, 323 F.3d 539, 544-45 (7th Cir.
2003) (finding no prejudice where IJ prevented further
testimony focused on the mistreatment of petitioner’s
extended family because it would not have assisted
petitioner in establishing her eligibility for asylum). We
must therefore deny the Bocis’ petition for review.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the decision of the
BIA and DENY the petition for review.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-12-07