Of the District of Maine, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 06-1338

VIOLETA ALIBEAJ,

Petitioner,

v.

ALBERTO GONZALES, ATTORNEY GENERAL,

Respondent.

 

ON PETITION FOR REVIEW OF AN ORDER OF THE

BOARD OF IMMIGRATION APPEALS

 

Before

Lipez, Circuit Judge,

Cyr, Senior Circuit Judge,

and Singal, District Judge. *

 

Carlos E. Estrada, on brief for petitioner.

Peter D. Keisler, Assistant Attorney General, Greg D. Mack,

Senior Litigation Counsel, and Patricia M. Bowman, Attorney, Tax

Division, U.S. Department of Justice, on brief for respondent.

 

November 22, 2006

 
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CYR, Senior Circuit Judge. Violeta Alibeaj petitions

for review of a decision by the Board of Immigration Appeals

("BIA") which affirmed an immigration judge’s denial of her asylum

application. We deny the petition.

I

BACKGROUND

In February 2001, Alibeaj, a native and citizen of

Albania, entered the United States illegally. During her removal

proceedings, Alibeaj submitted an application for asylum, claiming

that the Albanian Communist and Socialist Parties had persecuted

her and her family for the last fifty-eight years, as follows: In

1943, the communist government arrested and executed her

grandfather and an uncle, both leaders of the anti-communist

National Party. During the 1980s, the government arrested and

tortured her future husband and a brother-in-law. In 1990, Alibeaj

attended a pro-democracy demonstration in the capital city of

Tirana, at which anti-riot police struck her in the head. In 1991,

following the fall of the communist regime in Albania and a

transfer of governmental power to the Democratic Party, Alibeaj

joined a support group for persons who had been victims of

political persecution by the communist government. 

In 1997, the Socialist Party, which included many former

communists, won the national election and regained control of the

government. When Alibeaj went into labor with her first child that
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year, the hospital did not dispatch an ambulance to her home, and

refused to attend to her medical needs or treat her pain during

sixteen hours of labor. Consequently, her baby was born with

serious mental defects. Alibeaj contends that her governmentappointed gynecologist – the daughter of a political opponent of

her husband’s family whose father had raped Alibeaj’s mother-in-law

– was the instigator of this denial of adequate medical treatment.

Thereafter, Alibeaj sought medical assistance for her ailing son,

but was refused treatment when she informed the doctors and

hospitals that she was a supporter of the Democratic Party.

Alibeaj traveled to Italy for two years to obtain medical treatment

for her son, while her husband remained in Albania. Alibeaj’s son

subsequently died of birth defects while in Italy. 

In 1997, members of SHIK, the Albanian secret police

organization, arrested and tortured Alibeaj’s sister-in-law after

she wrote a history of Alibeaj’s husband’s family, which was

critical of the former communist regime’s repressive tactics

against its political opponents. When the sister-in-law was

released after five days, she was so psychologically shell-shocked

that she was unable to speak. Eventually, she emigrated to Italy,

where she committed suicide. The government unsuccessfully

continued its search for copies of the sister-in-law’s book, at

Alibeaj’s residence and elsewhere. 

In 2000, following two years in Italy, Alibeaj returned
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to Albania, whereupon SHIK agents stalked Alibeaj and threatened to

kill her and her family if they did not leave Albania. On one

occasion, SHIK agents physically assaulted her husband and stole

all of his construction tools, thereby depriving him of his

livelihood. Thereafter, Alibeaj left Albania for the United

States.

In September 2004, an immigration judge ("IJ") orally

rejected her asylum application, stating as follows:

I’m going to deny the application [for

asylum] because I’m just not seeing any

connection here between any of the five

enumerated grounds in what she’s related. And

I’m not sure that what she’s related amounts

to past persecution to her. And I don’t see

that she has a well-founded fear of future

persecution on account of any of the five

enumerated grounds if she returns to Albania.

Alibeaj filed a timely appeal of the IJ’s decision to the

BIA. The BIA adopted and affirmed, thus signifying that its

“conclusions upon review of the record coincide with those which

the [IJ] articulated in his or her decision.” The BIA added:

We agree with the [IJ] that the

respondent failed to establish that she

suffered persecution. Despite the regrettable

actions that have befallen the respondent and

her family, we cannot find that the incidents

described rise to the severity to constitute

persecution. We further are unable to find

that the respondent has a well-founded fear of

persecution if she returns to Albania. We

cannot identify any particular factors that

would cause us to conclude that the

respondent’s fear of persecution on account of

an enumerated ground is well–founded based on

current political conditions in Albania. In
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addition, an asylum applicant does not have a

well-founded fear of persecution if the

applicant could avoid persecution by

relocating to another part of the applicant’s

country of nationality or, if stateless,

another part of the applicant’s country of

last habitual residence, if under all the

circumstances, it would be reasonable to

expect the applicant to do so. The respondent

has not established that internal relocation

is not a viable option. The decision of the

[IJ] is also affirmed for the reasons provided

herein. 

Alibeaj petitions for review of the BIA decision.

II

DISCUSSION

Alibeaj contends that the IJ’s and BIA’s finding that she

did not suffer past persecution in Albania was not supported by the

evidence, which showed serious political retribution by the

communists and socialists in the form of executions, torture,

beatings, death threats, and denials of essential medical care. 

Eligibility for asylum requires that the alien prove her

status as a “refugee,” 8 U.S.C. § 1158(b)(1)(A), (b)(1)(B)(i); see

Mehilli v. Gonzales, 433 F.3d 86, 90 n.5 (1st Cir. 2005), in that

she suffered past persecution or has a well-founded fear of future

persecution based on race, religion, nationality, membership in a

particular social group, or political opinion if she were to return

to her country of nationality, see id. (citing § 1101(a)(42)(A)).

The Alibeaj asylum claim alleges persecution on account of

“political opinion.” If the alien cannot meet her burden to
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establish past persecution, she will be entitled to asylum only if

she can establish that she harbors a fear of future persecution

that is both subjectively genuine and objectively reasonable. See

Palma-Mazaiegos v. Gonzales, 428 F.3d 30, 34-35 (1st Cir. 2005).

Should the alien meet her burden of establishing past

persecution, however, a presumption arises that her fear of future

persecution is well-founded. See Bollanos v. Gonzales, 461 F.3d

82, 85 (1st Cir. 2006). In order to rebut that presumption, the

government must demonstrate by a preponderance of the evidence that

(i) the country of origin has experienced a “fundamental change in

circumstances” since the alien’s departure which obviates her

previously well-founded fear of persecution, or (ii) the alien

reasonably could avoid future persecution by relocating to another

part of the country. 8 C.F.R. § 208.13(b)(1)(i). We review the

IJ’s and the BIA’s findings under the “substantial evidence”

standard, and will reverse only if we conclude that the record

evidence would compel a contrary finding. See Dhima v. Gonzales,

416 F.3d 92, 95 (1st Cir. 2005); see also Berrio-Barrera v.

Gonzales, 460 F.3d 163, 167 (1st Cir. 2006) (noting that whether

applicant has proved that persecution was motivated by one of the

five statutorily protected grounds is a question of fact).

A. "Past Persecution"

“[E]stablishing past persecution in a daunting task,” and

Alibeaj “bears a heavy burden.” Guzman v. INS, 327 F.3d 11, 15
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(1st Cir. 2003). Although her experiences of political

discrimination in Albania certainly are regrettable, Alibeaj cannot

surmount the deferential standard of review. First, for purposes

of establishing the right to asylum, the discriminatory experiences

must have reached a fairly high threshold of seriousness, as well

as some regularity and frequency. See Susanto v. Gonzales, 439

F.3d 57, 59-60 (1st Cir. 2006) (noting that “[t]he baseline rule is

that past persecution requires ‘more than mere discomfiture,

unpleasantness, harassment, or unfair treatment’” (citation

omitted)). The more serious episodes of anti-communist persecution

against the Alibeaj family and her husband’s family occurred either

in the remote past (e.g., the 1943 execution of her grandfather and

uncle), or predated the fall of the communist regime in 1992 (e.g.,

the arrest and torture of her future husband). Similarly, although

the police beat Alibeaj during a pro-democracy demonstration in

1990, this occurred prior to the fall of the communist regime, and

Alibeaj never testified to any permanent or serious physical

injuries. See id. at 60 (noting that asylum applicant failed to

prove “persecution” when “no physical confinement and no serious

physical injuries resulted”).

Moreover, the post-1992 incidences were too sporadic or

causally tenuous to compel the IJ to find politically-motivated

persecution. Although Alibeaj suspected that her gynecologist

sabotaged her 1997 delivery, she herself noted also that the
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hospital staff neglected her need for pain medication because they

were watching the television reports regarding Princess Diana’s

death. See Toloza-Jimenez v. Gonzales, 457 F.3d 155, 160 (1st Cir.

2005) (observing that an asylum applicant has the burden to show

the “causal connection between her experiences and . . . the

statutory grounds for persecution”). Similarly, Alibeaj noted

that the medical personnel at other facilities subsequently refused

to treat her newborn son’s condition, yet she failed to provide any

specific facts from which the IJ might evaluate whether Alibeaj

made a reasonably exhaustive search for medical treatment prior to

leaving for Italy. Absent evidence to the contrary, it would seem

entirely reasonable that some physicians in Albania support the

Democratic Party. Thus, if Alibeaj experienced but a couple of

politically-motivated refusals of medical treatment before she

abandoned her efforts, this limited impediment might not suffice

alone to establish “persecution.” 

Although the 1997 arrest and torture of Alibeaj’s sisterin-law arguably shows that the sister-in-law was persecuted,

Socialist Party sympathizers targeted the sister-in-law for a

reason that does not pertain to Alibeaj: she wrote and threatened

to publish a "tell-all" book critical of the former communist

regime. Alibeaj acknowledges that she has never been a member of

the Democratic Party, nor taken any concrete political actions

comparable to those of her sister-in-law which unduly might
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antagonize Communist or Socialist Party sympathizers.

The nature of the death threats, beating, and

misappropriation of property that Alibeaj and her husband suffered

upon her return from Italy in 2000 is also plainly insufficient to

compel a finding of persecution. The allegations are serious

indeed, but police misdeeds even more egregious or sustained have

failed to clear the persecution hurdle. See, e.g., Susanto, 439

F.3d at 59-60 (observing that even physical abuse does not

necessarily prove persecution, and collecting cases); Zui v.

Gonzales, 412 F.3d 202, 204-05 (1st Cir. 2005) (same, concerning

threats to life or health). 

B. Changed Circumstances

Even if we were to conclude that the IJ and BIA erred in

finding that the experiences described by Alibeaj did not rise to

the level of past “persecution,” and that Alibeaj therefore met her

burden to establish past persecution, the government had the

opportunity to rebut the presumption of a well-founded fear of

future persecution by proving by a preponderance of the evidence

that the circumstances in Albania had changed so fundamentally

since Alibeaj left in 2001 as to obviate her otherwise well-founded

fear of future persecution. See 8 C.F.R. § 208.13(b)(1)(i).

Indeed, the BIA specifically held that the government had met its

burden, stating that it could not “identify any particular factors

that would cause us to conclude that the respondent’s fear of
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persecution on account of an enumerated ground is well–founded

based on current political conditions in Albania.” (Emphasis

added.) The record amply supports this factual finding.

The agency adduced the 2003 United States State

Department Country Report on Human Rights Practices for Albania

(dated 2/25/04), which discloses that the climate for political

oppositionists in Albania has fundamentally improved since 2001.

See Tota v. Gonzales, 457 F.3d 161, 166 (1st Cir. 2006) (“[W]here

a [State Department] report demonstrates fundamental changes in the

specific circumstances that form the basis of a petitioner's

presumptive fear of future persecution, it ‘may be sufficient, in

and of itself,’ to rebut that presumption.”); Palma-Mazariegos, 428

F.3d at 36 (noting that State Department reports are “generally

probative of country conditions”). For example, Albania held

multi-party parliamentary elections in 2003 under a reformed

electoral code with almost no reported incidences of the type of

politically-motivated violence that had plagued its earlier postcommunist elections. The Socialist Party failed to win a majority,

and was forced to form a coalition government with two other minor

parties, with the Democratic Party as the second largest votegetter sitting in opposition. In 2003, there were no reports of

politically-motivated killings, disappearances, or detainees held

strictly for political reasons, and Albania ratified the Convention

Against Torture. 
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Alibeaj cites only one report that police used excessive

force: at a May 2003 rally in Tirana of former political prisoners

seeking government compensation for their enforced hard labor under

the former communist regime. However, this isolated reference

would not compel the IJ’s factfinding, given that (i) Alibeaj has

never contended that she wished or intends to petition the

government for redress, and/or that she is even eligible for such

compensation; and (ii) the Report simultaneously states that the

Albanian government condemned this police malfeasance and took

immediate legislative steps to prevent its recurrence. 

Thus, the BIA’s conclusion that the political

circumstances in Albania have changed fundamentally in Albania over

the past six years is entirely consistent with its recent

precedent. See Bollanos v. Gonzales, 461 F.3d 82, 86 (1st Cir.

2006) (noting significance of changed circumstances in Albania and

remedial measures taken by new government in 2003 to reduce police

misconduct); Tota, 457 F.3d at 167 (observing that “‘[t]hough

serious political repression existed in the past, there are no

indications of systemic political persecution in Albania at the

present time’”); cf. Susanto, 439 F.3d at 60-61 (observing that

Indonesian government “has taken serious remedial measures” in

response to intense international condemnation of 1998 anti-Chinese

riots); Nikijuluw v. Gonzales, 427 F.3d 115, 122 (1st Cir. 2005)

(citing a State Department Country Report’s observation of a
In her petition for review, Alibeaj does not challenge the 1

alternative BIA holding that she failed to prove that she could not

reasonably have located to another part of Albania to avoid future

persecution, and therefore, we neither review nor comment on that

aspect of its holding.

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significant decline in violence against Christians in Indonesia).1

As the agency record does not compel a finding that

Alibeaj would suffer politically-motivated persecution if removed

to Albania, the BIA decision must stand.

The petition for review is denied.