1 We refer to the asylum applicant by his first name to distinguish him from the other members of his family whose experiences figure prominently in Ferdinant’s claim.

In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-2570

FERDINANT MEMA,

Petitioner,

v.

ALBERTO R. GONZALES,

Respondent.

____________

Petition for Review of an Order of

the Board of Immigration Appeals.

No. A79-442-784

____________

ARGUED FEBRUARY 21, 2006—DECIDED JANUARY 11, 2007

____________

Before BAUER, KANNE, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge. An immigration judge granted

Spartak Mema political asylum in January 2002, and now

his identical twin brother Ferdinant seeks that same

protection. Ferdinant Mema (Ferdinant)1

, a native and

citizen of Albania, was detained at Fort Lauderdale International Airport when he tried to enter this country

with an illegitimate Italian passport. He seeks asylum

claiming that he suffered persecution at the hands of
2 No. 05-2570

Albanian authorities in retaliation for his and his family’s

association with the Democratic Party in Albania. After a

hearing, an immigration judge denied Ferdinant asylum

and withholding of removal, and the Board of Immigration Appeals (BIA) affirmed. We remand for consideration of relevant, probative evidence central to Ferdinant’s

claim that the immigration judge failed to consider the

first time around.

Ferdinant, born in 1982, lived in Albania with his

parents, his identical twin brother Spartak, his older

brother Edmond, and Edmond’s wife Suela. Edmond,

Spartak, and Suela all fled Albania—Edmond in 1997, and

the others in 1999—and later received asylum in this

country based on the persecution they suffered as members of the Democratic Party of Albania and children of an

activist leader with that Party. Ferdinant, on the other

hand, left Albania for Greece in 1997, and lived there,

without permission, doing a variety of odd jobs, before

returning to Albania in 1999 and finally fleeing to this

country in 2002.

At his hearing before the immigration judge, Ferdinant

testified that his family members had been subject to

persecution at the hands of government authorities in

retaliation for their membership and participation in the

Democratic Party in Albania and specifically, as retribution for activist and leadership roles assumed by Sabri

Mema, Ferdinant’s father.

In his supplement to his application for asylum,

Ferdinant recalls several instances in which family

members were singled out and harassed based on an

affiliation with the Democratic Party or their relationship

to Sabri Mema. For example, Ferdinant described an

incident in 1998 when his identical twin brother Spartak

was stopped by police officers on his way to a Democratic

Party meeting. The officers detained Spartak for five or
No. 05-2570 3

six hours, beat him and threatened him. Just a few weeks

later, Sabri had a run-in with Socialist authorities while

working as a poll watcher in an important election. After

reporting voting irregularities, Sabri was detained,

instructed to remain silent, and threatened with unspecified consequences. In defiance of the threats, Sabri reported his experiences to the Democratic Party which later

filed a suit challenging the results of the election. Sabri

received a summons to appear in court for the trial, but

when he appeared the matter had been continued. According to Ferdinant, members of the Socialist Party had

manipulated the court dates to garner time to strong-arm

those who might testify against the Party in the suit.

Indeed, Ferdinant explained, two days after his father,

Sabri, was scheduled to testify, Albanian police arrested

Sabri and brought him to the police station where officers

issued threats in an attempt to influence his testimony.

Three weeks later, Spartak received a subpoena to

appear at the prosecutor’s office. When he arrived, he

was detained, beaten, and told he would be prosecuted

unless he convinced his father to alter his anticipated

testimony. Spartak received a second subpoena the

following month and again appeared at the prosecutor’s

office where officials accused him of giving false testimony

on the earlier occasion. Again, officials beat him, threatened him, and accused him of disrupting the referendum

vote.

Ferdinant’s supplemental application also describes the

events that pushed Spartak and Suela to flee for their

safety. On April 23, 1999, Spartak received a summons

to appear as a defendant in a criminal proceeding initiated by the Ministry of Internal Affairs. While Spartak

awaited his court appearance, Sulea Mema, Ferdinant

and Spartak’s sister-in-law, also received a subpoena to

appear at the prosecutor’s office. Once there, Suela refused

orders to sign a document denouncing her father-in-law as
4 No. 05-2570

a liar and troublemaker. Despite threats of criminal

prosecution, Suela held firm. Although she was released

on that day, a few days later, on May 10, 1999, she was

arrested and taken to the prosecutor’s office where officials

again ordered her to sign the papers. When she refused,

she was attacked, beaten, and raped.

Ferdinant, who had recently returned from Greece, went

with the rest of his family to a hospital in Tirana to seek

treatment for Suela. While the family was away, Albanian

police destroyed the Mema home. In response to these

events, the family decided that Spartak and Suela had to

leave Albania. On May 19, 1999, the two left Albania,

leaving Ferdinant behind to stay with their parents.

Ferdinant went to stay with relatives to avoid further

trouble, but Sabri’s troubles continued, and it was not

long before police arrested him again after speaking at a

rally. This time they held him for four days.

The bulk of Ferdinant’s claim of past persecution centers on the events of June 20, 2001. Ferdinant testified

that on that day five masked police officers forced him into

a car at gunpoint, took him to an abandoned house, and

asked him why he had come back to cause trouble. According to Ferdinant, the officers repeatedly referred to him by

his twin brother, Spartak’s, name. When Ferdinant

insisted that he was not Spartak the officers beat him. The

masked men demanded that Ferdinant gather information about his father and other Democratic Party supporters and told Ferdinant to warn his father that if Sabri

interfered with voting, Ferdinant would pay the price.

After this, they continued to beat Ferdinant until he

passed out.

Two days after the attack, Ferdinant testified, his father

described his family’s suffering at a pro-democratic rally.

The following day, the family received word that the

police were looking for Ferdinant. That news sent
No. 05-2570 5

Ferdinant and his mother into hiding in a small town in

Northern Albania. Ferdinant’s father continued with his

activities and even decided to run for office in the local

elections, but changed his mind after March 10, 2002,

when he was approached by several officers who had a

warrant for Ferdinant’s arrest. Meanwhile, Ferdinant

and his mother, having been tipped off that the police had

come looking for Ferdinant, moved to yet another small

town until Ferdinant was able to secure passage out of

Albania on May 25, 2002. He arrived at Fort Lauderdale

International Airport on May 31, 2002.

After a hearing on November 20, 2002, the immigration judge issued an order denying Ferdinant’s applications and ordering his removal to Albania. The BIA

adopted and affirmed the decision of the immigration

judge adding a few sentences describing why the immigration judge’s credibility determination was supported

by the record and noting that Ferdinant received due

process of law. (R. at 2-3). Where the BIA affirms, adopts,

and supplements, we review both the immigration judge’s

decision and any additional reasoning of the BIA. Giday v.

Gonzales, 434 F.3d 543, 547 (7th Cir. 2006). We must

affirm the immigration judge’s decision if it is supported

by reasonable, substantial, and probative evidence on the

record considered as a whole, and overturn it only if the

record compels a contrary result. INS v. Elias-Zacarias,

502 U.S. 478, 481 & n.1 (1992); Balliu v. Gonzales, 467

F.3d 609, 612 (7th Cir. 2006).

In evaluating whether the record compels a contrary

result, we must first determine how much attention to

give to the accounts of the Mema family’s struggles in

Albania. Although Ferdinant’s own participation in the

Democratic party was not extensive, if his testimony is to

be believed (more on that later), his father was an active

and vocal agitator in the Democratic party, and his family

suffered persecution at the hands of the Socialists as a
6 No. 05-2570

result. On the one hand, our asylum laws ordinarily do not

extend protection to persons merely because a family

member has suffered persecution. Mabasa v. Gonzales, 455

F.3d 740, 746 (7th Cir. 2006); Tamas-Mercea v. Reno, 222

F.3d 417, 424 (7th Cir. 2000). On the other hand, asylum

is available to persons who have been persecuted based

on imputed political opinion, including situations where a

persecutor attributes the political opinion of one or

more family members to the asylum applicant. See, e.g.,

Nakibuka v. Gonzales, 421 F.3d 473, 478 (7th Cir. 2005);

Tolosa v. Ashcroft, 384 F.3d 906, 910 (7th Cir. 2004);

Ciorba v. Ashcroft, 323 F.3d 539, 542, 545 (7th Cir. 2003);

Iliev v. INS, 127 F.3d 638, 642 (7th Cir. 1997). To succeed

on a claim of imputed political opinion, an applicant

must show that her persecutors attributed a political

opinion to her, Lwin v. INS, 144 F.3d 505, 509 (7th Cir.

1998) and that this attributed opinion was the motive for

the persecution. See Elias-Zacarias, 502 U.S. at 482-83.

Sometimes this situation is described as persecution based

on membership in a social group—i.e. the family group—

but in either case the necessary proof is the same. Iliev,

127 F.3d at 642. Examples of persecution based on family

membership abound in this circuit’s case law. See, e.g.,

Nakibuka v. Gonzales, 421 F.3d 473, 478 (7th Cir. 2005)

(applicant repeatedly beaten because she was the maid

and “part of the family” of a vocal opponent of the Ugandan President); Niam v. Ashcroft, 354 F.3d 652, 656-57

(7th Cir. 2004) (applicant beaten and persecuted because

of his family’s anti-communist reputation); Tolosa, 384

F.3d at 910 (government officials questioning implied that

they imputed political beliefs of the father to his daughter); Ciorba, 323 F.3d at 545 (applicant was harassed—but

not persecuted—based on family’s anti-communist politics); Lwin, 144 F.3d at 509-10, 512-13 (agreeing that

parents of political dissidents can seek asylum but only

if the child’s political opinion has been imputed to them
No. 05-2570 7

and they can otherwise demonstrate past or fear of future

persecution because of it); Iliev, 127 F.3d at 642 (applicant

from family of pro-democracy activists failed to demonstrate that he would be singled out for persecution based

on his membership in the family); Najafi v. INS, 104

F.3d 943, 945, 947 (7th Cir. 1997) (fear of future persecution due to family association only supported where

applicant can demonstrate potential for mistreatment

because of a blood tie to the political dissidents).

Oft times persecutors target children of political dissidents not because they have imputed the parents’ political

opinion to the children, but as a means of harassing,

intimidating, and influencing the behavior of the parent.

See Djouma v. Gonzales, 429 F.3d 685, 688 (7th Cir. 2005)

(noting that family members of activists are eligible for

asylum if the government has persecuted that family

member as a method of collective punishment of its

political enemies). See also, Cecaj v. Gonzales, 440 F.3d

897, 898 (7th Cir. 2006) (dissident’s brother kidnapped as

a means to force the dissident to abandon his political

activities); Gjerazi v. Gonzales, 435 F.3d 800, 803 (7th Cir.

2006) (kidnappers conditioned the release of the child of

anti-socialist activist on the Socialist Party winning the

vote in town in which applicant worked at the polling

station).

According to Ferdinant’s testimony, the Albanian

authorities targeted Ferdinant and his siblings in an

attempt to influence Sabri to withdraw his support for and

participation in the Democratic party. If Ferdinant was

or will be persecuted because of his relationship to Sabri,

either because the Socialists imputed Sabri’s political

opinions to Ferdinant, or as a means of punishing or
8 No. 05-2570

2 Of course, if Ferdinant demonstrates that he has been persecuted in the past, the court must presume that he has a

well-founded fear of future persecution. The government may

then establish, by a preponderance of the evidence, that the

conditions in the petitioner’s homeland have improved such

that persecution of the petitioner is unlikely to recur. Balliu,

467 F.3d at 612; 8 C.F.R. § 208.13(b)(1).

influencing Sabri, Ferdinant is entitled to asylum.2 The

problem for Ferdinant, however, is that the immigration

judge believed that Ferdinant had enhanced his description of his sole claim of personal persecution, the June 20,

2001 detention and beating, and that the unenhanced

version would not suffice for a finding of past persecution.

(R. at 55-56). We must view this determination with

deference. Diallo v. Ashcroft, 381 F.3d 687, 698 (7th Cir.

2004) (credibility determinations are factual determinations owed our strong deference). In the alternative, the

immigration judge determined that even if the enhanced

version were true, the single case of detention and beating was insufficient to warrant a finding of past persecution. (R. at 53). Although another judge may have found

that such an abduction at gunpoint, detention, and beating constitute past persecution, we cannot say that the

record compels a contrary result. Elias-Zacarias, 502 U.S.

at 481; Bejko v. Gonzales, 468 F.3d 482, 485 (7th Cir. 2006)

(“we do not hold here that the described confinement

and threats are insufficient to constitute past persecution

as a matter of law. Instead, the only question before this

court is whether the immigration judge was compelled to

find that such confinement constituted past persecution.”).

A finding of past persecution, however, is not Ferdinant’s

only avenue to asylum. He may also demonstrate that

he has a well-founded fear of future persecution on the

basis of his race, religion, nationality, membership in a

social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A);
No. 05-2570 9

8 U.S.C. § 1158(b)(1)(B)(i); Balliu, 467 F.3d at 612. To do

so he need not prove that the situation he describes in

Albania will probably result in persecution, only that

persecution is a reasonable possibility. INS v. CardozaFonseca, 480 U.S. 421, 440 (1987) (“There is simply no

room in the United Nations’ definition for concluding

that because an applicant only has a 10% chance of being

shot, tortured, or otherwise persecuted, that he or she has

no ‘well-founded fear’ of the event happening.”) An applicant seeking to demonstrate a well-founded fear of future

persecution must prove first that he has a subjectively

genuine fear of future persecution, Ahmed v. Ashcroft, 348

F.3d 611, 618 (7th Cir. 2003), and then that a reasonable person in his situation would fear persecution if

forced to return to his native country. Kllokoqi, 439 F.3d

at 345.

These standards for establishing fear of future persecution are entirely absent from the immigration judge’s

decision. That decision largely glosses over the issue of

fear of future persecution, concluding early on and without

explanation that “even if the respondent’s facts are true,

the incident in June of 2001 does not rise to the level of

past persecution and the respondent has not established

that a reasonable person in his circumstances would fear

future persecution within the meaning of Section 208 of

the Act.” (R. at 53). To the extent there is any explanation of this conclusion it comes toward the end of the

decision when the immigration judge provides two skeletal

rationales for his conclusion that Ferdinant does not face

a well-founded fear of future persecution. The first is that

Ferdinant remained in Albania for almost a year after the

incident for which he claims past persecution. (R. at 58).

The second is that he was able to obtain a valid passport

and to leave without difficulty. Id. The relevance of these

facts to Ferdinant’s fear of future persecution is sketchy

at best, but more importantly, it wholly ignores the

evidence that is relevant to his fear of future persecution.
10 No. 05-2570

Although it is true that Ferdinant lived unmolested in

Northern Albania as the immigration judge notes,

Ferdinant fled his home village for Tirane, a village eight

hours away, to avoid the persecution that his brother and

sister-in-law had suffered. (R. at 90-91). It was when he

returned that he was abducted, detained and beaten. (R.

at 92-93, 170-71). Shortly after that incident, Ferdinant

fled to yet another village, (R. at 106-07), but was able to

stay there only until he got word that the police had come

looking for him. (R. at 109-10).

Ferdinant does not have a well-founded fear of persecution if he can avoid persecution by relocating to another

part of the country, Ahmed v. Gonzales, 467 F.3d 669, 675

(7th Cir. 2006); 8 C.F.R. § 208.13(b)(2)(ii), but we cannot

require him to live in hiding. See Giday v. Gonzales, 434

F.3d 543, 555 (7th Cir. 2006). The immigration judge

held that he did not find it plausible or credible that

Ferdinant was sought by police while in hiding, but he

offers not a single reason for this adverse credibility

finding. Although we accord substantial deference to an

immigration judge’s credibility determinations, we cannot

defer to a credibility determination unmoored from the

record, based on insufficient evidence or “based on nothing but the immigration judge’s personal speculation or

conjecture.” Giday, 434 F.3d at 550. Credibility findings must be based on “specific cogent reasons that bear

a legitimate nexus to the finding and that go the heart

of the applicant’s claim.” Id. We reject the immigration

judge’s credibility determination on this particular fact

as lacking any reason whatsoever—cogent, specific, or

otherwise.

The immigration judge’s second rational—that Ferdinant

was able to obtain an Albanian passport and leave the

country—simply is not probative of his fear of future

persecution. We have pointed out on several occasions

that governments are often all too happy to see undesir-
No. 05-2570 11

ables and dissidents depart. Durgac v. Gonzales, 430 F.3d

849, 852 (7th Cir. 2005); Grupee v. Gonzales, 400 F.3d

1026, 1027 (7th Cir. 2005); Hengan v. INS, 79 F.3d 60, 63

(7th Cir. 1996); Angoucheva v. INS, 106 F.3d 781, 791 (7th

Cir. 1997) (Rovner, J., concurring); but see Dobrota v. INS,

195 F.3d 970, 974 (7th Cir. 1999).

More importantly, however, the immigration judge failed

to mention even once, either at the hearing or in his

decision, the most pressing piece of evidence regarding

fear of future persecution: Ferdinant was persecuted

because the persecuting authorities believed he was his

identical twin brother, Spartak, and thus they imputed

Spartak’s political opinions and activities to Ferdinant.

Accordingly, in this case of mistaken identity, whether

Ferdinant can reasonably fear persecution if forced to

return to Albania depends upon whether Spartak could

reasonably fear persecution if returned to Albania—a

question to which the immigration judge never turned.

The immigration judge mentions, in passing, that

Ferdinant had an identical twin brother who had been

granted asylum, but never refers to any of the evidence

that Ferdinant submitted regarding Spartak’s fear of

future persecution or the possibility that those persecuting Spartak would be just as likely to come after

Ferdinant. In fact, despite the fact that Spartak and Suela

were just outside the courtroom door waiting to testify, the

judge instead chose to accept the statements submitted on

their asylum applications in lieu of hearing their testimony. (R. at 133). A finding that Ferdinant has failed to

establish a well-founded fear of future persecution ignores

the most significant piece of evidence relating to the

question and is thus a finding unsupported by the record.

See Gjerazi v. Gonzales, 435 F.3d 800, 811 (7th Cir. 2006)

(a finding that ignores significant portions of the evidence is not supported by the record). An applicant for

asylum is entitled to a reasoned analysis, not one which
12 No. 05-2570

wholly disregards relevant, probative evidence. See id. at

813 (reversing and remanding where the immigration

judge ignored relevant, probative evidence of political

motivation); Mohideen v. Gonzales, 416 F.3d 567, 571 (7th

Cir. 2005) (reversing and remanding where the immigration judge ignored evidence regarding the “mixed motive”

aspect of his claim); Tolosa v. Ashcroft, 384 F.3d 906,

909-10 (7th Cir. 2004) (reversing and remanding where

the immigration judge ignored evidence that the applicant was persecuted based on ethnicity); Yi-Tu Lian v.

Ashcroft, 379 F.3d 457, 461-62 (7th Cir. 2004) (reversing

and remanding where the immigration judge ignored a

long list of relevant evidence); Niam v. Ashcroft, 354 F.3d

652, 655, 658 (7th Cir. 2004) (reversing and remanding

where the immigration judge ignored key evidence of

persecution).

All we know of Spartak’s fear of future persecution is

that which is contained in the statement attached to his

asylum application. (R. at 204-208). The order granting

him asylum is a one page boilerplate form which contains

no reasoning for the grant of asylum. (R. at 191). Despite

this, there are a few things we can deduce about Spartak’s

fear of future persecution. To qualify for asylum, Spartak

had to demonstrate either that he was persecuted in the

past based on one of the enumerated classifications in

the statute or, alternatively, that he had a well-founded

fear of future persecution for the same reasons. See 8

U.S.C. § 1101(a)(42)(A); 8 U.S.C. § 1158(b)(1)(B)(i); Balliu

v. Ashcroft, 467 F.3d 609, 612 (7th Cir. 2006). Past persecution alone rarely suffices for a grant of asylum. A

refugee can qualify for asylum based on past persecution

alone if the past persecution is particularly severe

and heinous. Balliu, 467 F.3d at 612, 8 C.F.R.

§ 208.13(b)(1)(iii)(A); Bucur v. INS, 109 F.3d 399, 404-05

(7th Cir. 1997) (deducing that this exception is “designed

for the case of the German Jews, the victims of the Chi-
No. 05-2570 13

3 The Department of Homeland security had an adequate

opportunity to defend its position as to whether Spartak had a

reasonable fear of future persecution and should now be precluded from relitigating this issue in Ferdinant’s case. See

Hamdan v. Gonzales, 425 F.3d 1051, 1059 (7th Cir. 2005).

nese ‘Cultural Revolution,’ survivors of the Cambodian

genocide, and a few other such extreme cases.”). We think

it unlikely that Spartak’s persecution falls within this

very narrow exception. Consequently, we could venture

a reasonable guess that, because Spartak obtained asylum,

he must have demonstrated that he had a reasonable

fear of future persecution. We need not, however, exercise

our powers of deduction. Because the immigration judge

wholly ignored the relevant and probative evidence on

fear of future persecution, this case must be remanded

for proper consideration of the evidence relating to

Spartak’s persecution and Ferdinant’s fear of future

persecution.3

Before we remand, however, we can resolve Ferdinant’s

due process claim that the immigration judge erred by

failing to inform Ferdinant of his right to request withdrawal of his application for admission. Ferdinant asserts that the failure to inform him of that right pursuant to 8 C.F.R. § 1240.11(a)(2) and 8 U.S.C. § 1225(a)(4)

violated his due process rights. The government argues

that Ferdinant waived the argument by failing to raise

it in his administrative appeal. Furthermore, the government argues, the claim lacks merit because the regulation

that Ferdinant cites (8 C.F.R. § 1240.11(a)(2)) only requires immigration judges to inform an applicant of his

eligibility for benefits enumerated “in this chapter” of the

regulations. (Government Brief at 37) (citing 8 C.F.R.

§ 1240.11(a)(2)) (emphasis in original). According to the

government, the “chapter” only refers to application for

asylum, withholding of removal, cancellation of removal,
14 No. 05-2570

adjustment of status, suspension of deportation, but not

withdrawal of an application for admission. Id. (citing 8

C.F.R. § 140 et seq.) This is a puzzling argument, as the

entirety of § 1235.4 of this same chapter—Chapter V,

entitled “Executive Office for Immigration Review, Department of Justice”—specifically addresses withdrawal of

applications for admission. 8 C.F.R. § 1235.4.

In any case, we need not resolve the issue of waiver or

the reach of 8 C.F.R. § 1240.11(a)(2). Ferdinant’s due

process claim based on the immigration judge’s failure to

inform is reversible error only if he can demonstrate

prejudice arising from it, and he has failed to do so. Bejko

v. Gonzlaes, 468 F.3d 482, 487-88 (7th Cir. 2006) (citing

Ramos v. Gonzales, 414 F.3d 800, 804 (7th Cir. 2005), cert.

denied 126 S. Ct. 1331 (2006); Feto v. Gonzales, 433 F.3d

907, 912 (7th Cir. 2006)). Just like Bejko, Ferdinant was

represented by counsel in the proceedings before the

immigration judge, and does not allege that he was

actually unaware of that right to withdraw his application for admission. Id. at 488. Moreover, just like Bejko,

his only allegation of prejudice before this court is that had

he been so informed, he “may have focused his endeavors

on obtaining it.” Id. Because he has not alleged that his

actions would have been different or that he was unaware

of the right, he has not demonstrated any prejudice that

resulted from the immigration judge’s alleged failure to

inform him of his rights.

Ferdinant’s brief on appeal contains a heading stating

that “The Immigration Judge Erred in Determining That

the Petition Did Not Meet His Burden for Asylum, Withholding of Removal and Protection Pursuant to the

Torture Convention.” (Mema Brief at 31), but the paragraphs below that heading fail to set forth any standards

or arguments specific to his claims for relief based on the

Convention Against Torture or for withholding of removal.

Consequently, these undeveloped claims have been waived.

Balliu, 467 F.3d at 614.
No. 05-2570 15

The petition for review is granted, the order of removal

vacated, and the case remanded for further proceedings

consistent with this opinion. Each party to bear its own

costs.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—1-11-07