United States Court of Appeals Fifth Circuit 

## FILED March 17, 2006 Charles R. Fulbruge III Clerk 

## In the 

# United States Court of Appeals for the Fifth Circuit

_______________

m 05-60585 Summary Calendar

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### F LORIE 

### S HEHU 

### , Petitioner,

VERSUS



### ALBERTO 

### R. G ONZALES 

### , U.S. ATTORNEY G ENERAL ,



### Respondent.

_________________________ Petition for Review of an Order of the Board of Immigration Appeals

______________________________

Before S MITH , G ARZA , AND P RADO , Circuit Judges.

J ERRY E. S MITH , Circuit Judge:

Flo rie Shehu, a Kosovar Muslim who fled h er country during the 1998 turm oil, appeal s the decision of the Board of Immigration Appeals (“BIA”), which summarily affirmed t he decision of the Immigration Judge (“IJ”) denying her peti tion fo r asylum. The IJ found Shehu to be a credible wit ness and th at Shehu had established past persecution. Because she established past persecution, Shehu was enti tled to a rebuttable presumption of a wellfo unded fear of future persecution, with the burden on the government to prove, by a preponderance of the evidence, th at circumstances in Ko sovo had changed to such degree th at2

Shehu’s fear was no longer “well-founded.” 1

The I J f ound that the government has met th at burden. On appeal, Shehu argues that the IJ’s findings were general and did not respond t o her individualized factual statem ents d emonstrating fear of future persecution. She also argues th at any alleged chan ge in Kosovo is
n o t a “fundamental” change and th at she was entitled to humanitarian asylum.

We must affirm if the decision is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias , 502 U.S. 478, 481 (1992). We will reverse o nly if we determ ine th at the evidence compels a different result. Id.

I. This court has not consider ed what limitations should be placed on inferences th at can be drawn from general i zed evidence of changed country conditions. Even assuming th at we would require the government to negate the applicant’s individual fear of persecution, the evidence effectively negates Shehu’s individual fear of persecution.

All inst ances of past persecution th at Shehu has cit ed, on behalf of herself or of her relatives, were at the hands of the Serbian-dominated pol ice or Serbian paramilit ary fo rces. The IJ fo und, however 

### SS

and the finding is supported by substantial evide n ce 

### SS th at the Ko sovo adm

inist ration (and police) are no lo nger dominated by Serbs, but by the Unit ed N ati ons Interim Administrative Mission in Ko sovo (“UNMIK”) and Provisional Institutions of Self Government (“PISG”).

The Serbian paramilit ary fo rc e s have left Ko sovo. Moreover, we take j udicial notice of the 2003 Country R eport, which states that “t he high level o f revenge-based violence th at fo llo wed Y ugosl avia’s 1999 withdrawal continued to decline significantly,” and that there
were “several inst ances of S erb violence against Ko sovo Albanians, but no reported fatal it ies.” 2 E rebara v. Ashcroft , 124 Fed. Appx. 444 ( 7th Ci

r. 2005) (taking judicial notice of the same report).

The identity of the cu rrent Kosovar government is therefore different from th at of th e past government th at persecuted the Shehus. The Serbian paramilit ary fo rces have also left the country

. Whatever harassment or violence against fo rm

er KLA me m

bers and their families still exists cannot be labeled “persecution” absent som

e proof th at the current UNMIK and Albanian-controlled Ko sovar government “condoned it or at least demonstrated a com

plete helplessness to protect the vict ims.” Galina v. INS , 213 F.3d 955, 958 (7th C ir

. 2000).

The record does not com pel or even support a conclusion th at Mr. Shehu’s crash, which peti

tioner labels attem

p t ed killing, was orchestrated or condoned by the current government. The IJ stated that “[r]espondent doe s not specifically address who her

1 See 8 C.F.R. § 208.13(b)(1) (i), (ii); Z hu v. Ashcroft , 382 F.3d 521, 529 & n.6 (5th Cir. 2004); Poradisova v. Gonzales , 420 F.3d 70, 78 (2d Cir. 2005). 2 See Dobrota v. INS , 195 F.3d 970, 973 (7th Cir. 1999) (taking judicial notic e of most recent Country Report to determine current country conditions); United States Department of State, Country Reports on Human Rights Practices SS 2003: Serbia and Montenegro (Feb. 25, 2004), available at www.state.gov/g/drl/rls/hrrpt/2003- /27874pdf.htm.3

husband’s enemies were and why she believes they are still at large in Kosovo.” A.R. 91.

In fact, the mo st current country report, of which we also take judicial notice, states th at “[t]here were no pol

it ically mo tivated killings by UNMIK, the PISG, KFOR, or their agents” and that “UNMIK and the PISG generally respected the human rights of Ko sovo’s residents” wit h som

e exceptions with respect to vio lat io ns of the rights of Ko sov o Serbs. 3 That is, it is Serbs, not Albanians, who appear mo st of ri sk of potenti al persecution. Because Shehu has not presented any direct or circumstanti al evidence that would connect the government to her husband’s car crash, the IJ was not required to believe her speculative opinion
as to the origin of the crash, even if he believed her factual account th at th ere was a crash.
Contrary to Shehu’s assertions, even if her factual testimo ny th at a car crash occur might not require corroboration if c redible, there is
no ban on the IJ’s asking fo r corroboration on the applicant’s opinion testimo ny th at the current Ko sovar government condoned the crash, especially given th at there is no factual basis to make such an opinio n inference. For instance, there is no evidence th at the Shehus reported the crash to the pol

ice or requested protection, and whether th at effo rt was in vain. Alt hough th e violence against former KLA members reported by Shehu’s expert is unfo rtunate, there is no “persecution” absent proof th at the vio lence is condoned or orchestrated by the current Ko sovar government. Therefore, the IJ did not misapply the corroboration rule, and the record does not com pe l a conclusion that the change in circumstances did no t n egate Shehu’s alleged fear of persecution.

Decisions from other j u ri sdictions have reach similar conclusions. 4 The Second Circuit has recently held, for instance, that where the past and future fo rms of abuse implicate different pol

icies or practices, the government ’s burden in proving changed country conditions is light er th an if t h e abusive practices implicat ed the same concerns. S ee Islami
v. Gonzales , 412 F.3d 391, 397 (2d Cir. 2005). Because Islami’s prospective fears
were not related to “inst it utionalized persecution” from the government and milit ary , but instead centered on “alleged scattered incidents of continued harassment and abuse of ethnic Albanians,” th e court f

ound that the presumption of future persecution was adequately rebutted. I

d. In this case, as in Islami , the past and future fo rms of abuse implicate different pol

icies or practices because the past persecution was inst it utionalized persecution led by the Serbian-controlled government and paramilit ary fo rces, bu t the current abuse, alth ough attri

buted to Serbs, is not linked to the UNMIK and Albanian-controlled Ko sovar

3 United States Departm

ent of State, Country Reports on Human Rights Practices SS 2004: Serbia and Montenegro (Feb. 28, 2005), available at http://www.state .gov/g/drl/rls/hrrpt- /2004/41706.htm. 4 See, e.g
. , Grishaj v. I.N.S. , 101 Fed. Appx. 631 (6th Cir. 2004) (holding that the presumption of future persecution was re butted by evidence that condition s in Kosovo had changed, because, despite citing some contrary evidence, petitioner has not met her burden of showing that any reasonable adjudicator would be compelled to re ach a different conclusio n ); Jakaj v. U.S. Dep’t of Justice , 2006 WL 166479, at * 1 (2d Cir. Jan. 24, 2006) (finding that p re sumption of future persecution based on political opinion was re butt ed by evidence from state department reports and newspaper articles that the Democratic League of Kosovo, the political party in which Jakaj was an active member, was successful in the 2001 elections).4

government.

II. We also reject Shehu’s claim th at there was no proof , by a preponderance of the evidence, of a “fundamental” change in country co ndi

tions. Shehu asserts that reliance solely on State Departm

ent reports was inadequate and th at any change th at was proved is only “t emporary” thus by definition not fundamental.
Contrary to Shehu’s allegation th at th e IJ made his determ

inat io n as to changed country conditions based solely on the State Department Reports, the IJ stated th at “[d]ocuments submit ted by both parties, including the State Departm ent’s Country Reports on Human Rights Practices fo r t he Federal Republic of Yugoslavia, articles on the current sit uation in Ko sovo, plus a report of an Independent Task Force in the Balkans describe the changes th at have occurred in Yugoslavia since the fall o f Milo sevic. ” A.R. 89. From the total it y o f these docum

ents the IJ conclud ed that “the docum ents show that the Serbi an oppression of ethnic Albanians has been greatl y reduced.” The IJ also noted that the State Departm ent’s repo rts , which show that circumstances have changed, ar e corrob orated by the report created by the Independe n t Task Force, which stated th at “The Balkan vio lence of the 1990s has run it s course

. . . . In Kosovo, the repressio n of the ethnic Albanians has ended and work has begun to rebuild th at damaged soci

ety .” A.R. 91.
The IJ quoted the State Department Reports th at showed th at approximately 100,000 Serbs remaining in Ko sovo live primarily in the north or in enclaves under the protection of a NATO peacekeeping fo rce and th at much of the ethnically mo tivated vio lence in the region is no w perpetrated by ethnic Albanians. A.R. 90. The IJ noted that the Serbs became so fearful of revenge by the ethnic Albanians th at 150,000 Serbs left Kosovo. Id.

The IJ also com

ment ed th at murders in Ko sovo decreased f

rom 136 in 2001 to 68 in 2002 and th at mo st of the murders o f Serbs and mino rities were ethnically mo tivated , but the killings of Alb anians were connected to family and econom

ic rivalries and criminal activit ies. I d. The IJ noted that al

th ough there
was som e Serb vio lence against ethnic Albanians, it was primarily limit ed to the Serbcontrolled north. I

d. He explain ed that the Shehus lived in Junik, which was lo cated in the South, near the border with Albania.

The IJ noted (and this finding is also supported by the mo st recent Cou nt ry Report), th at freedom of mo vement fo r ethnic mino ri

ties, particularly Ko sovo Serbs, continued to be a serious problem, so Serbs from Northern enclaves could not travel to Junik to endanger the Shehus’ lives. Shehu’s expert testified that Serbs conti nued to m

ove freely, but the IJ gave mo re weight to the State Departm ent reports because Shehu’s expert failed to give specific examples to corroborate her opinio n. The record does not com

pel (rather th an merely support) a contrary conclusion.

In sum, the IJ fo und th at fundamental changes have occurred in Ko sovo because the paramilit ary fo rces th at persecuted Shehu in the past no lo nger control Ko sovo. Alt hough Shehu cit es to a 2000 arti cle that the NATO fo rces were unable fully to control t he violence, lat er cou nt ry reports pl ainly sho w that the vio lence has been significantl y decreased,
as noted above. Most importantly, there is no
e v idence th at the UN, NATO and Albanian fo rces controlling Ko sovo are o rchestrating and condoning violence against ethnic Alba-5

nians fo r ethnic or political reasons. The record does not com

pel a contrary conclusion.
Shehu also argues th at onl y t ransitory, not fundamental, changes occurred in Ko sovo because the Serbian national ist s won a plurality of votes in t he Serbian parliament in 2003, so ther e was ri sk of backsliding in the region. This argument is frivo lo us. Alt hough Kosovo is techni cally part of Serbia and Montenegro, it has significant autonom

y, it s own parliament in which ethnic Albanians have a majority of votes, and it s own administ ration independent of Serbia. There is no indication that the Serbian nationalists could ever gain control of the Ko sovar legislat ive or executive branches. 5 Therefore, the record does not com pel a conclusion th at the changes in Kosovo are transitory as opposed to permanent.

III. The regulations, namely 8 C.F.R. § 208.13- (b)(1)(iii)(A), nevertheless allo w an alien who has been persecuted but is in no danger of being harmed in the future to avoid removal by showing “compelling reasons” fo r not being returned to his country

. Shehu argues that she qualifies under this provision.

For this regulation to be invo ked, t he past persecution suffered by an alien must be particularly severe, as was the case of the German Jews, the vict ims of the Chinese Cultural Revol ution, survivors of the Cambodian genocide, and a few other such extreme c ases. 6 As B u cur explained, “[m]ild persecution may be
som ething of an oxymoron, but the regulation makes clear th at a refugee who has no reasonable fear of future perse cution must indeed prove th at his past persecution was a sev e re rather th an a m

ild (bordering on ‘mere’ discriminat io n) fo rm of persecution.” B ucur , 109 F.3d at 405.

In Bucur , the persecution suffered by a Jehovah’s Witness in Romania, where allegedly he was not allo wed to practice his religion,
was fo und not to be severe enough as th at outlined in past cases such as M atter of Chen

. Similarly, in Pergega-Gjonaj v. Gonzales , 128 Fed. Appx. 507 (6th Cir. 2005) (per curiam), t he f our m onths of hard labor and starvation endured by peti

tioners was fo und “undoubtedl y t erri ble, and their plight was considered
even mo re difficult as a result of the atroci ties com mit ted against th ei

r family members,” i d. at 512, yet , the court was “convinced that the suffering inflict ed upon these petitioners does not represent the ty

pe of extreme case necessary to justify the invo cation of § 208.13(b)- (1)(iii) (A),” id. at 513.

Like the peti

tioners in Bucur and PergegaGjonaj , Shehu has been unable to show severe persecution. She argues that severe persecution is demonstrated b y t he facts (1) that her fat her was kidnaped and executed; (2) th at she

5 Furthermore, it is uncertain whether after the departure of the NATO forces, Kosovo will ev e n continue to be part of Se

rbia an d Montenegro, or will be recognized as an independent state later this year after the conclusion of UN-led neg o tiations that are currently taking place in Vienna. 6 B u cur v. INS , 109 F.3d 399, 405 (7th Cir. (continued...) 6 (...continued)

1997 ); see also Gonahasa v. INS , 181 F.3d 538, 544 (4th Cir. 1999) (“Eligibility for asylum based
on severity of persecution alone is re served for the most atrocious abuse.”); Matter of Chen , 20 I. & N. Dec. 16, 19-20 (BIA 1989) (humanitarian asylum justified for victim of Chinese Cultural Revolution whose father was tortured for eight year s and killed, and who was interrogated, imprisoned, tortured, and starved for nine year s, beginningwhen he was a child, leaving him physically debilitated).6

was fo rced to watch her husband being beaten; (3) being fo rced int o exile and having to escape by fo ot; (4) having her livelihood as a doctor destroyed; (5) being subjected to artiller y and infantry attack for a few days, (6) having a home destroyed by Serbian troops and (7) th at her husband was wounded, beaten, and subject to attempted murder.

Facts (1) and (7) do not apply because they do not relate to persecution personally suffered by the peti

tioner. Similarly, facts (2), (3), and (7) are no mo re severe th an the experience of a vast percentage of th ose seeking asylum who suffered beatings and were fo rced int o exile. Alt hough these circumstances are terri ble, they are not severe enough to warrant application of humanit arian as y lum. Furthermo re, lo sing one’s ty

pe of emplo yment (fact (4)) is not sufficient to show entitlement to humanit arian asylum or even persecution. 7 Shehu’s short arrests in 1990 and 1994 also do not constitute persecution, or at least not severe persecution. 8
Last, alt hough the fact th at Sh ehu and her
v illage were subject to artillery and infantry attacks fo r a few days does constitute persecution, it is not as severe as that in C hen , in which the peti

tioner was int errogated, imprisoned, tortured, and starved fo r nine years, beginning when he was a child, leaving him physically debilit ated. 20 I. & N. Dec. at 19-20. Therefore, the evidence Shehu has presented does not com

pel a conclusion th at she was entitled to humanitarian asylum.

The peti tion fo r review is therefore DENIED.

7 See Capric v. Ashcroft , 355 F.3d 1075, 1093 (7th Cir. 2004) (holding that termination from job,
even in face of other economic hardship, did not constitute persecution, especially considering that economic hardship existed throughout country and peti t ioner never sought other work); Medhin v. Ashcroft , 350 F.3d 685, 689 (7th Cir. 2003) (holding that loss of job because of ethnicity was discrimination but not persecution); Sharif v. INS , 87 F.3d 932, 935 (7th Cir. 1996) (finding no persecution where petitioner lost job and found another ); Gormley v. Ashcroft , 364 F.3d 1172, 1178-80 (9th Cir. 2004) (holding that loss of jobs as a re sult of South Africa’s post-apartheid Em ployment Equi ty Act, and inability to find alternate
em ployment, not persecution); B arreto-Claro v. United States Attorney Gen. , 275 F.3d 1334, 1340 (11th Cir. 2001) (holdin g that losing job as taxi driver and finding only “m enial work” not persecution); Zalega v. I.N.S. , 916 F.2d 1257, 1260 (7th Cir. 1990) (holding that loss of job was “persecution” but not substantial persecution). 8 See, e.g., Prela v. Ashcroft , 39 4 F.3d 515, 518 (7th C ir. 2005) (stating that being “interrogated at various times by the police, detained for twenty-four hours, harassed for money, and beaten, causing an injury to his hands” does not compel a finding of persecution); Dandan v. Ashcroft , 339 F.3d 567, 573-74 (7th Cir. 2003) (concluding that detention for three days without food and beatings that caused facial swelling did not compel a finding of past persecution ); Zalega v. INS , 916 F.2d 1257, 1260 (7th Cir. 1990) (affirming finding that periodic searches, arre sts, and detainments did not constitute past persecution).