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

F ERDINANTM EMA

, Petitioner

,

v

.

ALBERTO R. G ONZALES

, Respondent

.

____________
Petition for Review of an Order of the Board of Immigration Appeals.
No. A79-442-784

____________ ARGUED F EBRUARY 21, 2006—D ECIDED J ANUARY 11, 2007

____________

Before BAUER , K ANNE , and R OVNER

, Circuit Judges

.
R OVNER

, 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 andcitizen 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 of2 No. 05-2570

Albanian authorities in retalia tion for his and his family’s
association with the Democrati c Party in Albania. After a hearing, an immigration ju dge denied Ferdinant asylumand 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 thiscountry 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 membersh ip and participation in theDemocratic 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 Democrati c 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 orNo. 05-2570 3

six hours, beat him and threatened him. Just a few weeks later, Sabri had a run-in wi th Socialist authorities while working as a poll watcher in an important election. After reporting voting irregulari ties, Sabri was detained, instructed to remain silent, and threatened with unspecified consequences. In defiance of the threats, Sabri reported his experiences to th e Democratic Party which later filed a suit challenging the re sults 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 togarner 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 attemp t to influence his testimony.

Three weeks later, Spartak received a subpoena to appear at the prosecutor’s o ffice. When he arrived, he was detained, beaten, and to ld 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 app lication also describes the events that pushed Spartak and Suela to flee for their safety. On April 23, 1999, Spartak received a summonsto appear as a defendant in a criminal proceeding initiated by the Ministry of Inte rnal 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 offi ce. Once there, Suela refused orders to sign a document denouncing her father-in-law as4 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 prose cutor’s office where officials again ordered her to sign th e 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 ho me. In response to these events, the family decided th at 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 maskedpolice officers forced him into a car at gunpoint, took him to an abandoned house, andasked 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 Sparta k the officers beat him. The
masked men demanded that Ferdinant gather information about his father and ot her 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, Fe rdinant 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 sentNo. 05-2570 5

Ferdinant and his mother intohiding 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 a rrest. 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 immigrationjudge 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 bo th 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 dete rmine 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 extens ive, if his testimony is to be believed (more on that later), his father was an active and vocal agitator in the De mocratic party, and his family suffered persecution at the ha nds of the Socialists as a6 No. 05-2570

result. On the one hand, our as ylum 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 ne cessary proof is the same. Iliev, 127 F.3d at 642. Examples of persecution based on family membership abound in th is circuit’s case law. See, e.g.

, Nakibuka v. Gonzales , 421 F.3d 473, 478 (7th Cir. 2005) (applicant repeatedly beatenbecause she was the maidand “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-c ommunist 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 fam ily’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 opin ion has been imputed to themNo. 05-2570 7

and they can otherwise demonstr ate past or fear of future persecution because of it); Iliev , 127 F.3d at 642 (applicantfrom 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 , 104F.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 Ferdina nt 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 or8 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 immigrationjudge believed that Ferdinant had enhanced his description of his sole claim of pers onal 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 deferenc e). In the alternative, the immigration judge determined that even if the enhancedversion were true, the single case of detention and beating was insufficient to warranta finding of past persecution. (R. at 53). Although another judge may have found that such an abduction at g unpoint, detention, and beating constitute past persecut ion, 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, th e only question before this court is whether the immigration judge was compelled to
find that such confinement co nstituted 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, na tionality, 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 hasno ‘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 , 348F.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 establishi ng fear of future persecution are entirely absent from the immigration judge’s decision. That decision larg ely glosses over the issue of fear of future persecution, co ncluding 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 ofthe Act.” (R. at 53). To the extent there is any explanation of this conclusion itcomes toward the end of the decision when the immigratio n 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 ev idence 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 what soever—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 a ll 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, Spar tak, 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 po ssibility 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 acceptthe statements submitted on their asylum applications inlieu 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 find ing unsupported by the record.
See Gjerazi v. Gonzales , 435 F.3d 800, 811 (7th Cir. 2006) (a finding that ignores sign ificant portions of the evidence is not supported by the record). An applicant for asylum is entitled to a reas oned analysis, not one which12 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 (7thCir. 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 wherethe 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 fe ar of future persecution is
that which is contained in th e 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 thathe 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 persecutio n for the same reasons. See8 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 suffice s for a grant of asylum. A refugee can qualify for asylum based on past persecution alone if the past persecut ion 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 areasonable 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 suchextreme cases.”). We think it unlikely that Spartak’s pe rsecution 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 ofhis right to request withdrawal of his application for admission. Ferdinant asserts that the failure to info rm 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 raiseit in his administrative appeal. Furthermore, the government argues, the claim lacks merit because the regulationthat 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 Br ief 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 app lication 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 fo r Immigration Review, Department of Justice”—specifi cally addresses withdrawal of applications for admission. 8 C.F.R. § 1235.4.

In any case, we need not re solve the issue of waiver or the reach of 8 C.F.R. § 1240.11(a)(2). Ferdinant’s due process claim based on the i mmigration judge’s failure to inform is reversible error only if he can demonstrate prejudice arising from it, an d 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 ri ght 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 “ma y 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 Thatthe Petition Did Not Meet His Burden for Asylum, Withholding of Removal and Prot ection Pursuant to theTorture 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 orfor withholding of removal. Consequently, these undevelopedclaims 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 rema nded 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