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

_______________

FLORIE SHEHU,

Petitioner,

VERSUS

ALBERTO R. GONZALES,

U.S. ATTORNEY GENERAL,

Respondent.

_________________________

Petition for Review of an Order

of the Board of Immigration Appeals

______________________________

Before SMITH, GARZA, AND PRADO, 

Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Florie Shehu, a Kosovar Muslim who fled

her country during the 1998 turmoil, appeals

the decision of the Board of Immigration Appeals (“BIA”), which summarily affirmed the

decision of the Immigration Judge (“IJ”)

denying her petition for asylum. The IJ found

Shehu to be a credible witness and that Shehu

had established past persecution. Because she

established past persecution, Shehu was entitled to a rebuttable presumption of a wellfounded fear of future persecution, with the

burden on the government to prove, by a preponderance of the evidence, that circumstances in Kosovo had changed to such degree that
2

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

The IJ found that the government has met

that burden. On appeal, Shehu argues that the

IJ’s findings were general and did not respond

to her individualized factual statements demonstrating fear of future persecution. She also

argues that any alleged change in Kosovo is

not a “fundamental” change and that she was

entitled to humanitarian asylum. 

We must affirmifthe 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 only if we determine that the evidence compels a different

result. Id. 

I.

This court has not considered what limitationsshould be placed on inferencesthat can

be drawn from generalized evidence of

changed country conditions. Even assuming

that we would require the government to negate the applicant’s individual fear of persecution, the evidence effectively negates Shehu’s

individual fear of persecution. 

Allinstances of past persecution that Shehu

has cited, on behalf of herself or of her relatives, were at the hands of the Serbian-dominated police or Serbian paramilitaryforces. The

IJ found, howeverSSand the finding is

supported by substantial evidenceSSthat the

Kosovo administration (and police) are no

longer dominated by Serbs, but by the United

Nations Interim Administrative Mission in

Kosovo (“UNMIK”) and Provisional Institutions of Self Government (“PISG”). 

The Serbian paramilitary forces have left

Kosovo. Moreover, we take judicial notice of

the 2003 Country Report, which states that

“the high level of revenge-based violence that

followed Yugoslavia’s 1999 withdrawal continued to decline significantly,” and that there

were “several instances of Serb violence

against Kosovo Albanians, but no reported fatalities.”2 Erebara v. Ashcroft, 124 Fed.

Appx. 444 (7th Cir. 2005) (taking judicial

notice of the same report).

The identity of the current Kosovar government is therefore different from that of the

past government that persecuted the Shehus.

The Serbian paramilitary forces have also left

the country. Whatever harassment or violence

against former KLA members and their families still exists cannot be labeled “persecution”

absent some proof that the current UNMIK

and Albanian-controlled Kosovar government

“condoned it or at least demonstrated a complete helplessness to protect the victims.”

Galina v. INS, 213 F.3d 955, 958 (7th Cir.

2000). 

The record does not compel or even support a conclusion that Mr. Shehu’s crash,

which petitioner labels attempted killing, was

orchestrated or condoned by the current government. The IJ stated that “[r]espondent

does not specifically address who her

1

See 8 C.F.R. § 208.13(b)(1)(i), (ii); Zhu v.

Ashcroft, 382 F.3d 521, 529 & n.6 (5thCir. 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 notice of most recent

Country Report to determine current country conditions); United States Department of State, Country Reports on Human Rights PracticesSS2003:

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 most current country report, of

which we also take judicial notice, states that

“[t]here were no politically motivated killings

byUNMIK, the PISG, KFOR, or their agents”

and that “UNMIK and the PISG generally respected the human rights of Kosovo’s residents” with some exceptions with respect to

violations of the rights of Kosovo Serbs.3

That is, it is Serbs, not Albanians, who appear

most of risk of potential persecution. Because

Shehu has not presented any direct or circumstantial evidence that would connect the government to her husband’s car crash, the IJ was

not required to believe herspeculative opinion

as to the origin of the crash, even if he believed her factual account that there was a

crash. 

Contrary to Shehu’s assertions, even if her

factual testimony that a car crash occur might

not require corroboration if credible, there is

no ban on the IJ’s asking for corroboration on

the applicant’s opinion testimony that the current Kosovar government condoned the crash,

especially given that there is no factual basisto

make such an opinion inference. For instance,

there is no evidence that the Shehus reported

the crash to the police or requested protection,

and whether that effort was in vain. Although

the violence against former KLA members

reported by Shehu’s expert is unfortunate,

there is no “persecution” absent proof that the

violence is condoned or orchestrated by the

current Kosovar government. Therefore, the

IJ did not misapply the corroboration rule, and

the record does not compel a conclusion that

the change in circumstances did not negate

Shehu’s alleged fear of persecution. 

Decisions from other jurisdictions have

reachsimilar conclusions.4 The Second Circuit

has recently held, for instance, that where the

past and future forms of abuse implicate

different policies or practices, the government’s burden in proving changed country

conditions is lighter than if the abusive practicesimplicated the same concerns. See Islami

v. Gonzales, 412 F.3d 391, 397 (2d Cir.

2005). Because Islami’s prospective fears

were not related to “institutionalized persecution” fromthe government and military, but instead centered on “alleged scattered incidents

of continued harassment and abuse of ethnic

Albanians,” the court found that the presumption offuture persecutionwas adequately

rebutted. Id. In this case, as in Islami, the

past and future forms of abuse implicate

different policies or practices because the past

persecution was institutionalized persecution

led by the Serbian-controlled government and

paramilitary forces, but the current abuse, although attributed to Serbs, is not linked to the

UNMIK and Albanian-controlled Kosovar

3 United States Department of State, Country

Reports onHuman Rights PracticesSS2004: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 wasrebutted by evidence that

conditions 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 reach a

different conclusion); Jakaj v. U.S. Dep’t of

Justice, 2006 WL 166479, at *1 (2d Cir. Jan. 24,

2006) (finding that presumption of future persecution based on political opinion was rebutted by

evidence from state department reports and newspaper articlesthat theDemocratic 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 that there was

no proof, by a preponderance of the evidence,

of a “fundamental” change in country conditions. Shehu asserts that reliance solely on

State Department reports was inadequate and

that any change that was proved is only “temporary” thus by definition not fundamental. 

Contrary to Shehu’s allegation that the IJ

made his determination as to changed country

conditions based solely on the State Department Reports, the IJ stated that “[d]ocuments

submitted by both parties, including the State

Department’s Country Reports on Human

Rights Practices for the Federal Republic of

Yugoslavia, articles on the current situation in

Kosovo, plus a report of an Independent Task

Force in the Balkans describe the changes that

have occurred in Yugoslavia since the fall of

Milosevic.” A.R. 89. From the totality of

these documents the IJ concluded that “the

documents show that the Serbian oppression

of ethnic Albanians has been greatly reduced.”

The IJ also noted that the State Department’s

reports, which show that circumstances have

changed, are corroborated by the report created by the Independent Task Force, which

stated that “The Balkan violence of the 1990s

has run its course . . . . In Kosovo, the repression of the ethnic Albanians has ended and

work has begun to rebuild that damaged society.” A.R. 91.

The IJ quoted the State Department Reportsthat showed that approximately 100,000

Serbsremaining in Kosovo live primarilyin the

north or in enclaves under the protection of a

NATO peacekeeping force and that much of

the ethnically motivated violence in the region

is now perpetrated by ethnic Albanians. A.R.

90. The IJ noted that the Serbs became so

fearful of revenge by the ethnic Albanians that

150,000 Serbs left Kosovo. Id.

The IJ also commented that murders in

Kosovo decreased from 136 in 2001 to 68 in

2002 and that most of the murders of Serbs

and minorities were ethnically motivated, but

the killings of Albanians were connected to

family and economic rivalries and criminal activities. Id. The IJ noted that although there

was some Serb violence against ethnic Albanians, it was primarily limited to the Serbcontrolled north. Id. He explained that the

Shehuslived in Junik, which waslocated in the

South, near the border with Albania. 

The IJ noted (and this finding is also supported by the most recent Country Report),

that freedom of movement for ethnic minorities, particularly Kosovo 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 continued to move freely, but the IJ

gave more weight to the State Department reports because Shehu’s expert failed to give

specific examples to corroborate her opinion.

The record does not compel(rather thanmerely support) a contrary conclusion. 

In sum, the IJ found that fundamental

changes have occurred in Kosovo because the

paramilitary forces that persecuted Shehu in

the past no longer control Kosovo. Although

Shehu cites to a 2000 article that the NATO

forces were unable fully to control the violence, later country reports plainly show that

the violence has been significantly decreased,

as noted above. Most importantly, there is no

evidence that the UN, NATO and Albanian

forces controlling Kosovo are orchestrating

and condoning violence against ethnic Alba-
5

nians for ethnic or political reasons. The record does not compel a contrary conclusion. 

Shehu also argues that only transitory, not

fundamental, changes occurred in Kosovo because the Serbian nationalists won a plurality

of votes in the Serbian parliament in 2003, so

there was risk of backsliding in the region.

This argument is frivolous. Although Kosovo

is technically part of Serbia and Montenegro,

it hassignificant autonomy, its own parliament

in which ethnic Albanians have a majority of

votes, and its own administration independent

of Serbia. There is no indication that the

Serbian nationalists could ever gain control of

the Kosovar legislative or executive branches.5

Therefore, the record does not compel a

conclusion that 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 allow an alien who

has been persecuted but is in no danger of

being harmed in the future to avoid removal by

showing “compelling reasons” for not being

returned to his country. Shehu argues that she

qualifies under this provision. 

For this regulation to be invoked, the past

persecution suffered by an alien must be particularly severe, as wasthe case ofthe German

Jews, the victims of the Chinese Cultural Revolution,survivors ofthe Cambodian genocide,

and a few other such extreme cases.6 As Bu

cur explained, “[m]ild persecution may be

something of an oxymoron, but the regulation

makes clear that a refugee who has no reasonable fear of future persecution must indeed

prove that his past persecution was a severe

rather than a mild (bordering on ‘mere’ discrimination) formof persecution.” Bucur, 109

F.3d at 405. 

In Bucur, the persecution suffered by a Jehovah’s Witness in Romania, where allegedly

he was not allowed to practice his religion,

wasfound not to be severe enough asthat outlined in past cases such as Matter of Chen.

Similarly, in Pergega-Gjonaj v. Gonzales, 128

Fed. Appx. 507 (6th Cir. 2005) (per curiam),

the four months of hard labor and starvation

endured by petitioners was found “undoubtedly terrible, and their plight was considered

even more difficult as a result of the atrocities

committed against their family members,” id.

at 512, yet, the court was “convinced that the

suffering inflicted upon these petitioners does

not represent the type of extreme case necessary to justify the invocation of § 208.13(b)-

(1)(iii)(A),” id. at 513.

Like the petitioners in Bucur and PergegaGjonaj, Shehu has been unable to show severe

persecution. She argues that severe persecution is demonstrated by the facts (1) that her

father was kidnaped and executed; (2) that she

5

Furthermore, it is uncertain whether after the

departure of the NATO forces, Kosovo will even

continue to be part of Serbia and Montenegro, or

will be recognized as an independent state later this

year after the conclusion of UN-led negotiations

that are currently taking place in Vienna.

6 Bucur 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 reserved 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 years

and killed, and who was interrogated, imprisoned,

tortured, and starved for nine years, beginning

when he was a child, leaving him physically debilitated).
6

wasforced to watch her husband being beaten;

(3) being forced into exile and having to escape by foot; (4) having her livelihood as a

doctor destroyed; (5) being subjected to artillery and infantry attack for a few days,

(6) having a home destroyed bySerbian troops

and (7) that 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 petitioner. Similarly, facts (2),

(3), and (7) are no more severe than the experience of a vast percentage of those seeking

asylum who suffered beatings and were forced

into exile. Although these circumstances are

terrible, they are not severe enough to warrant

application of humanitarian asylum. Furthermore, losing one’s type of employment (fact

(4)) is not sufficient to show entitlement to

humanitarian asylum or even persecution.7

Shehu’sshort arrestsin 1990 and 1994 also do

not constitute persecution, or at least not severe persecution.8

Last, although the fact that Shehu and her

village were subject to artillery and infantry

attacksfor a few days does constitute persecution, it is not as severe as that in Chen, in

which the petitioner was interrogated, imprisoned, tortured, and starved for nine years, beginning when he was a child, leaving him physically debilitated. 20 I. & N. Dec. at 19-20.

Therefore, the evidence Shehu has presented

does not compel a conclusion that she was

entitled to humanitarian asylum.

The petition for 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

petitioner 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

(9thCir. 2004) (holding that loss of jobs as a result

of South Africa’s post-apartheid Employment

Equity Act, and inability to find alternate

employment, not persecution); Barreto-Claro v.

United States Attorney Gen., 275 F.3d 1334, 1340

(11th Cir. 2001) (holding that losing job as taxi

driver and finding only “menial 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, 394 F.3d 515,

518 (7th Cir. 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 facialswelling did not compel a finding

of past persecution); Zalega v. INS, 916 F.2d

1257, 1260 (7th Cir. 1990) (affirming finding that

periodic searches, arrests, and detainments did not

constitute past persecution).