In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 03-3963

GJERGJ PRELA, also known as GRERGI PRELA,

Petitioner,

v.

JOHN D. ASHCROFT,

Respondent.

____________

Petition for Review of an Order of

the Board of Immigration Appeals.

No. A77-767-632

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ARGUED NOVEMBER 4, 2004—DECIDED JANUARY 7, 2005

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Before BAUER, RIPPLE, and KANNE, Circuit Judges.

BAUER, Circuit Judge. Petitioner Grergi Prela requests

review of an order of the Board of Immigration Appeals

(“BIA”) affirming the denial of his application for asylum,

withholding of removal, and protection under the United

Nations Convention Against Torture (“CAT”). For the

reasons stated herein, we affirm.

BACKGROUND

Prela is a native and citizen of the Federal Republic of

Yugoslavia. An ethnic Albanian from Kosovo, Prela claims

that he suffered persecution at the hands of Serbian police
2 No. 03-3963

and was also persecuted by the Albanian population due to

his mother’s Serbian heritage and the fact that he was seen

at the police station several times. With regard to the Serbian

police, he identifies three incidents which he believes constitute persecution. First, in 1989, Prela accidentally shot

himself while cleaning a gun which he owned. At that time,

civilians were not permitted to own firearms. He sought

medical treatment and was later confronted by the Serbian

police, who confiscated his passport and would not return it

until he surrendered the illegally-possessed gun. At the

time he surrendered the weapon, he was interrogated about

his political opinions. Second, in 1994, police surrounded

and searched Prela’s house for illegal weapons. They

arrested Prela and his brother and detained them for

twenty-four hours until their mother paid a bribe to secure

their release. Finally, in 1995, Prela was stopped by police

while driving a car with Swiss tags. The police interrogated

him, asked him to show them his documents, and demanded

bribes. They also caused an unspecified injury to Prela’s

hands, though the injury was not serious. The police eventually released him, but told him that they did not want to

see him anymore or they would kill him.

Prela also claims that the Albanians persecuted him, reciting incidents that actually occurred in Switzerland. From

1989 to 1999, Prela received a series of temporary work

permits and performed construction work in Switzerland

intermittently. While in Switzerland in 1998 and 1999, Prela

claims that people associated with the Kosovo Liberation

Army (“KLA”) came to his house and threatened him with

“elimination” if he did not join the KLA. 

On March 21, 1999, Prela entered the United States as a

non-immigrant visitor. An inspection of his documents

revealed that he had previously entered the United States

as a non-immigrant visitor in June 1998, but there was no
No. 03-3963 3

1 The Bureau of Immigration and Customs Enforcement, which

is a part of the Department of Homeland Security, now performs

the immigration enforcement function previously handled by the

INS.

record of his departure. The INS1 initiated removal proceedings on March 31, 1999. Prela conceded removability and

applied for asylum, withholding of removal, and protection

under the CAT on September 30, 1999. The Immigration

Judge (“IJ”) denied Prela’s petition on July 1, 2002, finding

that he had failed to prove that the claimed persecution was

directed at him individually on the basis of his political

opinion or nationality. Prela appealed, and the BIA summarily affirmed on October 15, 2003. The BIA adopted the

conclusions of the IJ and added that the harm experienced

by Prela did not rise to the level of past persecution or

torture. Prela petitions for review of the BIA’s decision.

DISCUSSION

Since the BIA’s order merely supplements the opinion of

the IJ, that opinion, as supplemented, becomes the basis for

review. Liu v. Ashcroft, 380 F.3d 307, 311 (7th Cir. 2004).

We review the IJ’s denial of Prela’s petition under the deferential substantial evidence standard. Under this standard,

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,

112 S.Ct. 812, 117 L.Ed.2d 38 (1992). We will reverse only

if we determine that the evidence compels a different result.

Brucaj v. Ashcroft, 381 F.3d 602, 606 (7th Cir. 2004).

Asylum

Under § 208(a) of the Immigration and Nationality Act

(“INA”), 8 U.S.C. § 1158(a), the Attorney General has

discretion to grant asylum to any alien who qualifies as a
4 No. 03-3963

“refugee” as defined by 8 U.S.C. § 1101(a)(42)(A). To establish that he is a refugee, Prela must prove either that he

has been the victim of persecution in the past or that he has

a well-founded fear of future persecution on account of his

race, religion, nationality, membership in a particular social

group, or political opinion. Tolosa v. Ashcroft, 384 F.3d 906,

908 (7th Cir. 2004). While the INA does not define “persecution,” we have held that the conduct at issue must rise

above the level of mere harassment. Asani v. INS, 154 F.3d

719, 723 (7th Cir. 1998). We have also recognized that

“unpleasant and even dangerous conditions do not necessarily rise to the level of persecution.” Mitev v. INS, 67 F.3d

1325, 1331 (7th Cir. 1995).

We are not compelled by the record to find that the

incidents of which Prela complains are severe enough to

constitute persecution. To reiterate, he was interrogated at

various times by the police, detained for twenty-four hours,

harassed for money, and beaten, causing an injury to his

hands. Although these events may qualify as harassment or

even intimidation, they are not so extreme that they rise to

the level of persecution. This Court has held that similar or

even more severe conduct is not persecution. See, e.g.,

Dandan v. Ashcroft, 339 F.3d 567, 573-74 (7th Cir. 2003)

(finding 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, arrests, and detainments did not constitute past

persecution). The evidence in this case and our precedent

does not compel a finding that Prela was persecuted in the

past.

We also agree that there is substantial evidence supporting

the IJ’s determination that Prela does not have a wellfounded fear of future persecution. In the absence of a finding of past persecution, Prela must prove that he genuinely

fears persecution on the basis of one of the protected

grounds if removed to Yugoslavia, and that his fears are
No. 03-3963 5

objectively reasonable. Liu, 380 F.3d at 312. Yugoslavia, and

Kosovo in particular, has undergone significant change

since 1999. The State Department Country Reports on

Human Rights Practices in Yugoslavia for 2000 and 2001

both describe the establishment of a new government in the

province of Kosovo and the return of hundreds of thousands

of ethnic Albanians to Kosovo since the end of the Milosevic

regime. Recent opinions by this Court have also recognized

this change in country conditions. See, e.g., Brucaj, 381 F.3d

at 607. Given these changes, we do not dispute the IJ’s

conclusion that Prela’s fear of future persecution is not

objectively reasonable.

Withholding of Removal

Prela also seeks withholding of removal under § 241(b)(3)

of the INA, 8 U.S.C. § 1231(b)(3). Under this section, he

may not be removed to Yugoslavia if his life or freedom

would be threatened there because of his race, religion, nationality, membership in a particular social group, or political

opinion. Id. The standard for withholding of removal is

more stringent than that for granting asylum. Bevc v. INS,

47 F.3d 907, 910 (7th Cir. 1995). To be eligible, he must

establish a clear probability of persecution if returned to

Yugoslavia; in other words, he must prove that it is more

likely than not that he would be subject to persecution.

Borca v. INS, 77 F.3d 210, 217 (7th Cir. 1996). As we have

often held, the stricter standard logically dictates that a petitioner who fails to demonstrate eligibility for asylum

cannot demonstrate eligibility for withholding of removal.

See, e.g., Hasanaj v. Ashcroft, 385 F.3d 780, 783 (7th Cir.

2004).

Torture Convention

To qualify for protection under the CAT, Prela must prove

that it is more likely than not that he would be tortured if
6 No. 03-3963

removed to Yugoslavia. 8 C.F.R. § 208.16(c)(2). Torture is

defined as “any act by which severe pain or suffering,

whether physical or mental, is intentionally inflicted on a

person . . . 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). It is also described as an “extreme form

of cruel and inhuman treatment.” 8 C.F.R. § 208.18(a)(2). In

determining whether it is more likely than not that a

petitioner will be tortured, the IJ is directed by the implementing regulations to consider: (1) evidence of past torture

inflicted upon the petitioner; (2) evidence that the petitioner

could relocate to a part of the country of removal where he

or she is not likely to be tortured; (3) evidence of gross,

flagrant, or mass violations of human rights within the

country of removal; and (4) other relevant information

regarding conditions in the country of removal. 8 C.F.R.

§ 208.16(c)(3).

The evidence supports the IJ’s assessment that the harm

Prela suffered in Yugoslavia and Switzerland does not rise

to the level of “torture” as defined by the CAT. As detailed

above, Prela complains that he was detained for twenty-four

hours, harassed for bribes, interrogated, threatened, and

sustained an unspecified injury to his hands. While certainly unpleasant, these events do not amount to torture.

We also find that there is substantial evidence supporting

the IJ’s determination that the likelihood of Prela being

tortured if removed from the United States is low. Again, as

we noted previously, country conditions in Yugoslavia have

changed considerably over the past five years. We are not

compelled to find that Prela will more likely than not be

tortured if he returns to that country.

CONCLUSION

The IJ’s and BIA’s decisions denying asylum, withholding

of removal, and protection under the CAT to Prela are

AFFIRMED and his petition for review is denied.
No. 03-3963 7

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—1-7-05