In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 02-4348

ARDIAN HASANAJ,

Petitioner,

v.

JOHN D. ASHCROFT, United States

Attorney General,

Respondent.

____________

Petition for Review of an Order of

the Board of Immigration Appeals.

No. A76-294-776

____________

ARGUED JANUARY 13, 2004—DECIDED SEPTEMBER 27, 2004

____________

Before BAUER, MANION, and ROVNER, Circuit Judges.

BAUER, Circuit Judge. This is an immigration case in

which the petitioner, Ardian Hasanaj, seeks review of a

final order of the Board of Immigration Appeals (“BIA”) affirming a removal order issued in Immigration Court. Hasanaj

is a 31-year-old native of Albania, who entered the United

States in April 1997 at one of Chicago’s airports. At the time

he presented a Swiss passport which had been purchased in

Albania. A Notice to Appear dated May 5, 1997, indicated

that Hasanaj was subject to removal on the grounds that he
2 No. 02-4348

sought to enter the United States by fraud or willful

misrepresentation of a material fact, and that he was not in

possession of a valid unexpired passport or a valid visa or

any other valid entry document. At the hearing, petitioner

conceded removability and applied for asylum and withholding of removal. 

In his asylum application, Hasanaj stated that he left

Albania and went to Yugoslavia from 1991 to 1994 to escape

persecution. He returned to Albania after his asylum

request was denied and joined the Albanian Democratic Party

in 1994. He attended meetings and recruited members in

his hometown, Han I Hotit, Shkoder Province. According to

Hasanaj, members of his family were active in the Democratic Party and that his cousin was the party leader in

Han I Hotit. In early 1997, the Democratic Party and the

Socialist Party were at odds. Beginning in February of

1997, the disagreements between the parties grew violent.

Hasanaj’s cousin, the leader of the party, was shot by a

group of armed men who identified themselves as Socialists.

According to Hasanaj, two days later, five, armed, masked

men, claiming to be Socialists, stopped his car and threatened to kill him if they saw him again. Shortly after, his car

was set on fire. Hasanaj left a few days later for the United

States.

At his removal hearing, Hasanaj testified that he left

Albania because of his problems with the Socialist Party

and that he would be jailed, hurt or killed by the Socialist

Party if he returned to Albania. His parents, sister and

brother are living in Albania and they have not experienced

any violence or threat of violence since 1998.

The immigration judge (“IJ”) found Hasanaj to be removable and denied his applications for asylum and withholding of deportation. The BIA dismissed the appeal without a

separate opinion. This petition for review followed.
No. 02-4348 3

Discussion

Because the BIA affirmed the IJ’s opinion, we base our

review on the IJ’s analysis. Balogun v. Ashcroft, 2004 WL

1469402, *5 (7th Cir. 2004). We review the IJ’s denial of

Hasanaj’s petition for asylum and withholding of removal

under the highly deferential substantial evidence test. Id.

Under the substantial evidence test, “we must uphold the

IJ’s findings if they are supported by reasonable, substantial, and probative evidence on the record considered as a

whole; we may reverse the IJ’s determinations only if we

determine that the evidence compels a different result.” Id.;

see also 8 U.S.C. § 1252(b)(4)(B) (“[T]he administrative findings of fact are conclusive unless any reasonable adjudicator

would be compelled to conclude to the contrary.”). 

Asylum

The Attorney General has discretion to grant asylum to

an alien who is a “refugee,” that is, an alien who is unable

or unwilling to return to his home country “because of persecution or a well-founded fear of persecution on account of

race, religion, nationality, membership in a particular social

group, or political opinion.” 8 U.S.C. §§ 1101(a)(42)(A),

1158(a). In this case, Hasanaj claims he will be persecuted

because of his political opinion. The burden of proof is on

Hasanaj to show that he is a “refugee” and is eligible for

asylum. See 8 C.F.R. § 208.13(a). 

Hasanaj asserts that the IJ and the BIA erred in denying

his request for asylum. The IJ’s denial of asylum rests on

the conclusion that the evidence was not sufficient to establish past persecution or a well-founded fear of future

persecution. Hasanaj’s claim of past persecution was based

on one incident; he was threatened at gunpoint by a gang of

socialists who then set his car on fire. 

Although threatened, he was not physically harmed. See

Tamas-Mercea v. Reno, 222 F.3d 417, 424 (7th Cir. 2000)
4 No. 02-4348

(defining persecution as “punishment” or “infliction of harm”

for political, religious or other illegitimate reasons “that

rises above the level of mere harassment”). His claim of

past persecution is unfounded. Id. (finding no persecution

where applicant was not personally harmed); See also Lwin v.

INS, 144 F.3d 505, 509 (7th Cir. 1998) (finding failure to

establish past persecution even though the applicant had

been subjected to two interrogations, three home searches,

and was forced to sign an agreement to report his son’s

whereabouts).

Hasanaj claims he has a “well-founded fear” of persecution if he returns to Albania. The “well-founded fear” test

has two components: (1) that he has a genuine, subjective

fear of persecution, and (2) that his fear is objectively reasonable. Balogun, 2004 WL 1469402, at *5. The “subjective

fear component turns largely upon the applicant’s own testimony and credibility.” Balogun, 2004 WL 1469402, at *5;

quoting Capric v. Ashcroft, 355 F.3d 1075, 1085 (7th Cir.

2004). The objective component can be met by presenting

specific documents or by persuasive testimony. Balogun,

2004 WL 1469402, at *5.

Hasanaj argues that the evidence of the threat to him, the

loss of his car, as well as the shooting of his cousin, coupled

with political unrest in Albania established a well-founded

fear of persecution if he returns. The IJ found that

Hasanaj’s risk was no greater than that faced by the average Albanian. His reasons are as follows:

[T]he level of involvement by [Hasanaj] in the Democratic

Party was not that great. [Hasanaj] was, in my view,

simply an average party member. He did not hold the

position of prominence, notwithstanding his contention

he followed his brother [sic] around. I don’t think the

evidence supports that contention that he was more

than an average member of that party. The Democratic

Party as the documents clearly show, is a broad-based
No. 02-4348 5

movement in Albania. There are many people who support that party, particularly in the area from which

[Hasanaj] emanates. In addition, I think that [Hasanaj’s]

case essentially rests upon a unique event. One threat

in April 1997 and should be considered in that context.

The conditions as described in the reports at that time,

consisted of widespread lawlessness in Albania, a breakdown of the rule of law because of the widespread availability of arms. The threats that [Hasanaj] experienced

were, I think, the problems which many people did in

Albania at the time.

Br. of Petitioner at App. 12. The IJ also pointed to Hasanaj’s

testimony that his brother, who had been in Italy, had

returned and is working in Albania. His testimony indicated that his parents and his brother were still living in

Han I Hotit and remain unharmed. The IJ noted that the

State Department’s advisory opinion indicated the situation

has calmed considerably based on the fact that “a new

government was elected in the summer of 1997 and that the

elections were recognized by the international community

as being fair and comporting with the international standards.” Id. at 13. The IJ reasoned that there is nothing in

Hasanaj’s testimony “that indicates that the threat to his

family is ongoing or that members of the Socialist Party

would be seeking to harm his family because of any of his

activities. . . . Consequently, there is little reason to believe

that [Hasanaj] would be in danger now in Albania.” Id.

Applying the highly deferential substantial evidence test, we

have concluded that the IJ’s decision to deny asylum is

reasonable and is supported by the evidence on record.

Withholding of Removal

In order to establish eligibility for withholding of removal

under 8 U.S.C. § 1231(b)(3), an applicant must establish a

clear probability of persecution on account of one or more of

the five enumerated grounds. If an applicant fails to es-
6 No. 02-4348

tablish eligibility for asylum, he or she cannot meet the

more stringent standard for withholding of removal. Balogun,

2004 WL 1469402, at *13. So the denial of Hasanaj’s

request for withholding of removal was correct.

Due Process Violations

The Petitioner also claims that he was denied his Fifth

Amendment due process rights. Aliens are entitled to due

process during immigration proceedings. United States v.

Mendoza-Lopez, 481 U.S. 828 (1987). We review de novo

claims of due process violations in removal proceedings.

Kerciku v. INS, 314 F.3d 913, 917 (7th Cir. 2003). 

Hasanaj claims that the IJ (1) improperly questioned him

regarding certain aspects of his asylum claim, (2) improperly disallowed him from testifying about current conditions in Albania, and (3) unfairly denied his motion for a

continuance. 

During Hasanaj’s testimony, the IJ questioned him about

various aspects of his testimony and his asylum claim. In

doing so, the IJ acted well within his “authority to administer oaths, receive evidence, and interrogate, examine, and

cross-examine the alien and any witnesses.” 8 U.S.C.

§ 1229a(b)(1). An IJ, “unlike an Article III judge, is not

merely the fact finder and adjudicator but also has an obligation to establish the record.” Yang v. McElroy, 277 F.3d

158, 162 (2nd Cir. 2002); see also Richardson v. Perales, 402

U.S. 389, 410 (1971) (holding that an administrative law

judge acts as “an examiner charged with developing facts”).

As the government noted in oral argument, the fact that an

IJ asks questions during the proceedings is helpful to

develop the record and is better than a silent bench that

says nothing throughout the proceedings and then denies

the request for asylum because the petitioner did not

provide sufficient evidence.
No. 02-4348 7

Hasanaj asserts that the IJ’s conduct during questioning

amounted to “hectoring, pressuring or abusing the witness . . .

abandoning all appearance of impartiality.” Br. of Petitioner

at 20. From our reading of the questioning, the IJ did not

demonstrate impatience, hostility, or a predisposition against

Hasanaj’s claim. The questions were relevant and based on

the testimony or documentary evidence submitted by Hasanaj.

For instance, the IJ questioned him about the incident with

the masked men that caused him to leave Albania. That

line of questioning was to clarify how Hasanaj knew that

the masked men were part of the Socialist Party. Br. of

Petitioner at App. 42-46. The IJ also questioned the Petitioner about where he lived in Albania and why he never

tried to find a safe place to live somewhere else within the

country. Id. at 47. The IJ asked, “what specific information

that you have that would indicate that you would not be

safe living in Albania now, either in Skhodar or elsewhere

in Albania?” Id. at 49. These questions were to develop the

record with whatever the Petitioner had to offer for his case.

The questions reflect what the IJ still needed to know in order to make a fully informed decision. There are no questions, or group of questions that indicate that this IJ was

anything but thorough and fair in his obligation to this

Petitioner.

The Petitioner claims that the IJ denied him due process

when he barred him from testifying about current conditions

in Albania. Br. of Petitioner at 20. That is a misstatement

of the facts as we read them in the record of the proceedings. The IJ did not bar Hasanaj from testifying about the

current conditions in Albania; instead when the Petitioner’s

attorney began to question him about certain conditions in

Albania, the IJ stated that he would give little weight to

such testimony as an authoritative historical account. Br.

of Petitioner at App. 51-53. After the attorney stated that

the testimony would be relevant to the issue of subjective fear,

Hasanaj testified about events that occurred in Albania af-
8 No. 02-4348

ter his departure from that country. The IJ did not bar any

testimony, nor was the IJ wrong in stating that little weight

would be given to Petitioner’s testimony regarding current

conditions in Albania. Gramatikov v. INS, 128 F.3d 619, 620

(7th Cir. 1997) (stating that little weight should be given to

testimony of an alien who has lived in this country for years

and is not an expert on the politics of his native country as

to its current political climate). Here, Hasanaj presented

evidence in the form of documentation relating to conditions

in Albania in 1997 and 1998, including press releases

purportedly setting forth the platform and mission of the

Democratic Party; reports from Amnesty International,

dated March 3, 1997, and March 14, 1997; and newspaper

articles from various new agencies and publications. The

Petitioner also provided a copy of the State Department’s

Albania Country Report on Human Rights Practices for

1996. With this volume of evidence and the fact that the

Petitioner was not barred from testifying, we find no error

in discouraging Hasanaj from giving cumulative testimony

about country conditions in Albania.

Hasanaj also argues that the IJ denied him his right to a

fair hearing when he denied his request for a continuance.

Hasanaj’s attorney, Marketa Lindt, entered her appearance

on his behalf in July 1997. At a hearing on January 27,

1998, the IJ scheduled the hearing on Hasanaj’s asylum

request for July 1, 1998, by agreement of the parties. In a

motion dated June 10, 1998, Hasanaj requested a continuance because an Albanian interpreter became unexpectedly

ill on June 6, 1998, and that Hasanaj was unable to meet

with counsel for a scheduled meeting to review the case.

The motion also stated that counsel had a speaking engagement at the American Immigration Lawyers Association

conference on June 17-21, 1998, and that counsel’s ability

to reschedule a meeting with Hasanaj was difficult. The IJ

denied the motion for a continuance. At the July 1, 1998

hearing, the IJ explained that any continuance would be for
No. 02-4348 9

a period of about six months, in light of the immigration

court’s calendar. The IJ noted that the asylum application

was prepared in 1997, that it was filed in 1998, and that

counsel had been representing the Petitioner since May 1997.

The IJ thought the time to prepare had been sufficient and

further noted that both by regulation and government policy, the hearing on an asylum request is to be held within

180 days after filing. The IJ determined that there ought to

be another day in the two-month period to meet with the

interpreter and that the speaking engagement should not

take priority over the hearing. (Also, the speaking engagement was to take place a full week before the scheduled

hearing; there was no actual conflict.) We find no error in

the IJ’s decision to deny the motion for continuance.

In order to establish a denial of the right to due process,

Hasanaj must show that he was prejudiced by the IJ’s

actions. Wigglesworth v. INS, 319 F.3d 951, 960 (7th Cir.

2003). Hasanaj has not pointed to any evidence that might

establish prejudice. The IJ’s questioning of Hasanaj was

relevant and appropriate. The Petitioner was not barred

from testifying about conditions in Albania subsequent to

his departure and he did submit voluminous documentary

evidence regarding such conditions. He had full opportunity to

present his case even without the continuance. He submitted extensive documentary evidence at the hearing, and his

testimony was lucid and credible. The record reveals

nothing to suggest that he was prejudiced by any of the IJ’s

questions, findings, or decisions. His claim of denial of due

process is unfounded.

The IJ’s and BIA’s decisions regarding Hasanaj are

AFFIRMED and his petition for review is denied.
10 No. 02-4348

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—9-27-04