The Honor able Da n Aar on Polst er, U nited States District J udg e for the Northe rn District of * Ohio, sitti ng by

desig nation. NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON

File Na me: 07a0420n.06 Filed: June 20, 2007 No. 05-3747 UN ITED STA TES C OU RT OF AP P EA LS F O R T H E S IX T H C IR C U IT F JO L L A B E R I S H A J, Petitioner,

v. AL BERTO R. GO NZ AL ES, Atto rney Gene ral of the Un ite d St a te s, Re sp on de nt. ON PETI TI ON F OR REVI EW OF A N ORDER OF THE B OARD OF IM M IG RA T IO N A P P E A LS

/ Be fore : MARTI

N and CL AY, Circuit J udg es; POL STER, District J udg e. * BO YCE F. MARTI

N, J R., Circuit J udg e. F

jolla Be rishaj petitions this C ourt for r eview the decision of the B oard of I mmigration Appeals af firming the I mmigra t ion J udg e’s de nial of her application for

asylum and associate d relief . The Immigration J udg e found that Be rishaj had f ailed to establish that she was a member of

a prote cted class, and further, that she ha d not shown she was pe rs e c ute d b y

the g ov e rnme nt or by so me on e wh om t he g ov e rnme nt w a s unw ill ingor un a ble to

con t ro l

. Be cau s e s u

b s t an t i al ev i d en ce s u

p p o rt s t h e s ec o n d

gro u n d fo r d eny ing B erishaj’ s application,

we DENY her pe tition.No. 05-3747

Berishaj v. Gonzales Pag e 2 I. Be rishaj, an e thnic Albanian, was born in Kosovo on Mar ch 18, 1984. B erishaj lef t Kosovo as par t of a school tr ip and enter ed the United States via a J-1 visa on or about J uly 3, 2002. Her authorization to remain in the Un ited States expi red on July 31, 2002, but Be rishaj stay ed behind when he r school g roup depa rted. On Aug ust 1, 2003, she was serve d with a notice to appe ar be fore an Immigration J u d ge (I J ) and show why she should not be re moved from the United States for overstay ing her visa. On October 10, 2003, Be rishaj, throug h counsel, filed an application seeking asylum, withholdi ng of re moval, and re lief under the Convention Ag ainst Torture. The followingfac ts were p re s en t ed by Be rishaj in her a

pplication for a sy lum and her test im o n y b e f

o r e th e I J. B e c a

u s e th e I J f

o u n d B e r is h a

j to b e “ e n ti r e ly c r e d ib le , ” w e mu s t acc ept these fa cts as true
. See G ilaj v. Gonzales , 408 F.3d 275, 285- 86 (6th Cir. 2005). On her application for

asylum, Ber ishaj claimed a sy lum based on member ship in a particular social g roup. She rec ounted abuse at the hands of the man to whom she had been eng ag ed by virtue of an a g re e me nt b e tw e e n h e r f a ther an d her fianc é ’s fa mil y . O n th e same fo rm , B e ri sh a j a lso

e xpla ine d th a t sh e c ou ld n ot r e tur n to Ko so vo becaus e th e man to wh om s he wa s e ng a g e d “ mus t fulfill the oath he made to the council of e lders . . . to kill me for shaminghim and his family .” The I J conducte d a hea

ring on J anuar

y 29, 2004. Be rishaj t estified as the s ole wit ness on her be ha lf and did no t pr ov ide any

do c ume ntatio n f

ro m ot he r w itn e sse s, su c h a s le tte rs fr om h e r f a mil y or fr iends. Acc ording to Be rishaj, in late May or ea rly J une of 2001, he r father en t er ed int o an

arr an gem en t with the family of Orha n Ademi. Two or thr ee w eeks e arlier , the Ademi fa mily had come to the B erishaj r esidenc e and proposed a transac tion to Mr. Be rishaj by which he w ould tradeNo. 05-3747

Berishaj v. Gonzales Pag e 3 his da ug hte r t o A de mi a s A de mi’ s fia nc é in exc ha

ng e fo r a pie c e of pr op e rt

y . Be ri sh a

j w a s o ff ic ia lly eng ag ed to Ademi on June 16, 2 0 0 1

. S he wa s seventee n and Ade mi was twenty -five. T he

arra n gem en tp re s u

p p o s eda J u n e 2 0 0 3 we d d i n g, at wh i ch p o i n t Be ri s h aj wo u l d b e fi n i s h ed wi t h h i gh school. Be rishaj, despite he r opposition to the transaction, had no sa y in the matter. Be rishaj first met Ade mi in S eptember 2001, when he wa s waiting for he r one da y outside her sc hool. Ademi introduced himself by demandingthat Be rishaj “c ome her e” b ec au s e s he wa s g oing to be his wife. The rea fter, A demi would regularly come to B erishaj’ s school and wa it outsi de fo r h e r. Whe n h e e ve ntu a lly de du c e d th a t B e ri sh a

j ha d n o d e sir e to t a lk t o h im , Ade mi be g an to

acc ost Ber ishaj, pushing a n d grabbingher, c alling he r name s like “bitch” a nd “prostitute,” a

nd

sw e ari nga t B e ri sh a

j’ s fa mil y . B e ri sh a

j did no t re sp on d to Ad e mi’ s be havio r. As B e ri sh a j be c a me incre asing ly

opposed to the eng ag ement, she c onfided this fac t to her mother, wh o , d es pite being

so rr y fo r B e ri sh a

j, tol d he r that she ha d n o c ho ic e be c a us e he r f a the r h a d g ive n h is w or d to Ad e mi. Be rishaj explained at the hea ring that her community lived pursuant to a separ ate se t of laws under the anc ient C o d e o f Kanun. Under the Code of Ka nun, Mr. B erishaj f

ace d punishment by

the community

elder s if he broke his word, and he would have to lea ve the c ommunity

as a r esult. B e ri sh a j te sti fi e d th a t f

ro m f a ll 2 00 1 to wi nte r 20 02 , Ad e mi’ s a c tio ns we re “ g e tti ngwo rs e

ever y day” as she continued to re ject him. For

example, one day

in J anuar y , while she and her two y oung er br others we re at hom e alone, Ade mi came to the house and tried to for ce his wa y in. Although B erishaj attempted to bar the door, Ademi pushed hi s way partially throug h the door a

nd punched B erishaj in the lef t chee k with his fist l eavinga visible bruise that lasted a bout a wee k. When Be rishaj s cre amed, her fifte en-y ear -old brother came to the door, and A demi left. When herNo. 05-3747

Berishaj v. Gonzales Pag e 4 pare nts arrive d back h o m e, B erishaj told her mother about the inc ident, and althoug h she did not expli citly tell her fa

ther, Mr. B erishaj sa

w the bruise on B erishaj’ s fac e and de duced what had ha pp e ne d. Mrs. Be ri sh a

j a sk e d h e r h

us ba nd to r e c on sid e r t

he arr ang e me nt, wh ic h le d to a “ re a lly bad fig ht” betwe en Mr. a

nd Mrs. Be rishaj. Mr. B erishaj, thinking the incident wa s “not a bigdeal,” ref used to allow B erishaj to see a doctor for he r injuries. Be rishaj claimed that she wa s not allowed t o g o t o t h e p o l i c e t o r e p o rt t h e b a t t e r y, b e c a u s e t o d o s o w o u l d

h u m i l i at e h e r

f a t h e r . A d d i t i o n a l l y, Be rishaj testified that eve n if she did re port the batter y to the police, she be lieved they would do nothing be cause “they

all do that . . . they

all hit their wives.” On Fe bruar

y 9, 2002, Be rishaj and two school friends heade d to a bookstore in downtown Pristina, the capital c ity

of Kosovo. Althoug h the stree ts were filled with people, Ade mi followed the girls in his car , shouting insults at Be rishaj. At one point, Ademi stopped the c ar a nd the matter

esca lated; he started screaming that he was g oing to rape and kil l her, a nd then he e x ited the ca

r and

a c c os te d B e ri sh a

j. Ad e mi tri e d to for c e B e ri sh a j in to h is c ar, bu t sh e re sis te d. Enra g e d, Ad e mi a g a in punc he d B e ri sh a

j i n the fa c e wi th h is f

ist s, thi s ti me c a

us inghe r t o f

a ll t o th e g ro un d. Ad e mi continued to scre am t hreats and ins ults at Berishaj. Although Be rishaj’s two friends trie d to help her, no by standers ma de any

attempt to intervene

. As a c rowd g ather ed, the police approa ched to se e what was happening . Wit hout ever talking wi th B e ri sh a

j, who wa s ly

ingon the g ro un d c ry

ing , the po lic e ta lke d with Ad e mi an d th e n to ok him to t he po lic e statio n. Th e po lic e did no t han dc uf f Ad e mi, no r did

the y e ve r a c kn ow le dg e B e ri sh a j. By the time Be rishaj arrived home, Ademi’s parents had alrea dy called he r father to inform him of the i ncident. Be rishaj t estified that her father was e x tremely ang ry at her and took it out on his wife.No. 05-3747

Berishaj v. Gonzales Pag e 5

Ac c or din g to the tr ans late d c ourt do c ume nt, the jud g e fi ne d Ad e mi i n li e u o f s e nd inghim

1 to prison for six teen da

y s due to his family ’s ec o n o mic circ umstances. ( He wa s responsible for pr ov id in g fo od for hi s p are nts , young e r s ist e rs , a nd oth e rs .) Th e tr ans late d d oc ume nt a lso state s: “ ins te a d o f g oin g to j a il h e jus t ha ve [sic ] to p ay

the fi ne , w ithre a so nin g that th is f ine , it ’s g oin g to be a positive e ffe ct of the sa nction, so the defe ndant doesn’t have to do such infrac tion in the f uture.” Th e ne xt da

y , a le tte r arr ive d fo r Mr

. Beris haj , in vi ti ng him to a c c omp any his da ug hte r t o court. On the way

to court, Mr. B erishaj told his daug hter to sa y that ever

y thing was okay , and that the whole thing was just an accident. Be fore the j udg e hea rd B erishaj’ s testimony , he told her that “eve ry Albanian woma

n g ets hit by

the husband.” Acc ording to the court document, Ade mi testified befor e the judg e: “It’s true that I slapped Fjolla B erishaj in a public pla ce, be cause she didn’t want to see me any

more and she was not interested in our relationship. I ’m serious in g etting e ng ag ed and marry her a nd I ’ll not stop persuing [si c] seriously about t his matter.” Notwithstanding her father’s instructions, Ber ishaj g ave a truthful acc ount of the incident to the judg e. As a result of the te sti mony , A de mi w a s c on vic te d o f v iol a tin g a pu bli c or de r law and fi ne d 25 0 e ur os a s p un ish me nt. 1 Be rishaj testified that Ade mi was humiliated by the fact that he ha d been publicly punished for be ating Be rishaj, and he fe lt that he was not “ma n enoug h” in the eyes of the townspe ople. Under the Cod e of

Ka nun, be c a us e Ad e mi h a d b e e n humi liate d an d s hame d b y B e ri sh a j, h e wo uld

“ re a lly have to do somethingto come cle an” in the e y es of the c ommunity ’s elder s , who had the final de c isi on on wh a t c ou ld b e do ne to r e sto re Ad e mi’ s lo st h on or . A de mi i nc reased hi s th reat s to B e r i s h a j , an d h i s f r i e n d s w o u l d

a c c o s tB e r i s h a

j o u t s i d e h e r

s c h o o l an d

t e l l h e r t o “ c o u n tm y d ays beca use he’s g oing to kill me.” Be rishaj took the se threats se riously , as did he r mother. Be rishaj felt that she c ould not relocate elsew here in Kosovo (n o r i n neig hboring Monteneg ro, Albania , or Mace donia, for that matter) be cause of the lar g ely interconnect ed nature of the e thnic AlbanianNo. 05-3747

Berishaj v. Gonzales Pag e 6 popu latio n in

the e nti re re g ion . E thn ic Al ba nia ns fl e d K os ov o a s r e fu g e e s d ur ingthe e thn ic clea nsing c ampaig ns in the 1990s , and thus , acc ording to Be rishaj, people in other Ba lkan countrie s

“ kn e w e a c h o t h e r ” an d a l w ay s h a d c o n n e c t i o n s t o o t h e r s . B e r i s h a j a p p r o a c he d h e r m oth e r w ith the idea of

participating in a sc hool-sponsored trip to the United States. She did not ask her fathe r, for she was a fra id that he would ref use his pe rmission a

nd even f orbid her f

rom attendingschool any longe r. Mrs. B erishaj c ontacted he r sister-in-la w, who lives in Michig an, and she ag ree d to help. Mr s. B e ri sh a

j ma de the de c isi on th at he r d a ug hte r w ou ld p art ic ipate in t he tr ip, un

be kn ow ns t to

anyon e e lse in t

he fa mil y . Wh e n B e ri sh a

j le ft he r h ou se on

the mor nin g of June 28 , 2 00 2, sh e did so under the pr etense that she wa s taking some b o oks over to a f riend’s house . She took only her backpa ck and sa id g oodby e to no one, not e ven her mother , for f ear that the trip would be discove red. Be rishaj spoke with her

pare nts sometime after arr iving in the United States. She testified that her f ather told her that afte r she fled, Ademi had sworn a blood oath in front of the e lders that he would kill Be rishaj. Al t h o u gh the eng ag ement has be en broke n, the elder s approve d Ademi’s blood oath as the prope r wa y to restore his shamed honor. The elder s instructed that until his honor is restored, A demi cannot live in the a rea , he can n o t get marrie d or have a fa mily , or find

e mpl oy me nt. B e ri sh a

j st a te d th a t a s r e c e ntl y

a s tw o months be fo re the I J’s he ari ng , tw o f ri e nd s st ill living in Kosovo told her that Ade mi continues to threaten her life. Be rishaj believes that she ca nnot rely on the police to help he r, bec ause the police and the ir fa m i l i es fa ce repe rcussions if they g et involved in matters of honor unde r the Code of Kanun, a nd that the i nternational peac ekee pers do not inter vene in suc h matters, as they are focuse d solely on keeping the peac e in K osovo b etwee n

e thn ic Al ban ian s and

Se rb s. Con se qu e ntl y , B e ri sh a j c la ims that sh e is a fr a id t hat A de mi i sNo. 05-3747

Berishaj v. Gonzales Pag e 7

B e ri sh a

j do e s n ot a

pp e a l th e I J’s d e c isi on

de nyingre lie f p ur su ant to t he Conve nti on

Ag a ins t 2 Torture . She there by

waives that appea l. See Shk abari v. Gonzales , 427 F.3d 324, 327 n.1 (6th Cir. 2005). compelled under the Code of Kanun to c omplete that which he has sworn a blood oath to do, and that he will not stop unti l he kills her. After the conc lusion of Be rishaj’s testimony , the I J enter ed an oral orde r deny ing B erishaj’ s applications, and or deringher r emoval fr om the United States. I n the order , the I J stated: “the Court f i n d s t h a t[ B e r i s h a

j ’ s ] t e s t i m o n y

h a s b e e nc o n s i s t e n tan d

e n t i r e l y c r e d i b l e . ” N e v e rt h e l e s s , t h e IJ found that B erishaj ha d not e stablished that she was e ligible f or asylum under the Immigration and Nationality

Act (I NA) be cause “she ha s not established that s h e falls wit hin one of the pr otected g rounds.” Fur

thermore , the I J continued, even if she had e stablished that she fe ll within one of the protec ted gro u nds, Be rishaj could not establish that her perse cution “would be at the hands of the g overnme n t o r s omeone who c annot be c ontrolled by the g overnme nt.” B erishaj a ppeale d to the Boa rd of Immigration Appeals (B I A), whic h aff irmed the I J ’s ruling without opinion i n an orde r issued May

23, 2005. She now petitions this C ourt to review the dec ision of the BIA. 2 II. We have jurisdiction to revie w the B I A’s fina l order of remova l pursuant 8 U.S.C. § 1252(a) (1). When the B I A af firms the dec ision of the I J without issui ng an opinion, we r eview the decision of the I J direc tly

. Sin gh v . A shcroft , 3 9 8 F

. 3 d 3 9 6 , 4 0 1 ( 6 t hC i r . 2 0 0 5 )

. B e c a u s e t h e IJ found B erishaj t o be cr edible, we need only revie w the I J ’s deter

mination that Ber ishaj was not

e lig ibl e fo r a sylum

or wi thh old ing

of re mov a l.No. 05-3747

Berishaj v. Gonzales Pag e 8 A. Asylum The Attorne y

Gene ral ha s discretionar y authority to gr ant asylum to refug ees. 8 U .S.C. § 1158(b)( 1). The I J must first deter mine whether the applicant qualifies as a re fug ee, a nd then dec ide “whe ther the applicant merits a favorable exercise of discretion by the Att orney Gene ral.” Ouda v. IN S , 3 24 F .3 d 4 45 , 4 51 (6 th Cir . 200 3)

. A re fu g e e is som e on e unwi lli ngor un a ble to r e tur

n to his or her home country

“bec ause of

perse cution or a w ell-founde d fea r of pe rsec uti o n o n ac count of

ra c e , re lig ion , natio na lit

y , me mbe rs hip in a

pa rt ic ula r s oc ia l g ro up , o r p oli tic a l op ini on .” 8 U .S. C. § 1 10 1( a )( 42 )( A)

. I n ord e r fo r the ha rm su ff e re d b y an a pp lic ant t o c on sti tut e pe rs e c uti on , it mus t have be en inflicted by

the g overnme nt of the home countr y , or by someone whom the g overnme nt is unwilli ng or unable to control. Pi lic a v . A sh c ro ft , 3 8 8 F. 3 d 9 4 1 , 9 5 0 (6 t h C i r. 2 0 0 4 ) ( ci t i n g In re Kasinga , 21 I . & N

. Dec

. 357, 365 (B I A 1996)). I t is the applicant’ s burden to prove she qua lifies

as a r efug ee. Mi k

ha ile v itc h v . I

NS , 146 F.3d 384, 389 ( 6th Cir. 1998) (citing 8 C.F.R. § 208.13(a)

- (b)) . Where a

n applicant h as demonstrated pa st persec ution, there is a pr esumption of future perse cution. Id

. The g overnme nt c an rebut this pre sumption by establishing by a pre pondera

nce of the evidence that the hom e country ’s conditi ons have chang ed such that the applicant no longe r has

a we ll-founded f

ear of per secution upon her

return. Id

. We reviewan I J ’s dec ision that an applicant is inelig ible for a s y l u m u n d er the substantial

ev i d ence standar d. Ramaj v. Gonzales , 466 F.3d 520, 527 ( 6th Cir. 2006). An I J ’s fa ctual deter minations will not be re verse d “unless we find ‘that the e vidence not only supports a contra

ry

c on c lus ion , b ut c om

pe ls it.’” Id

. (q u o t i n g M

a r k u v . A s h c r oft , 3 8 0 F.3d 982, 986 ( 6th Cir. 2004)). See also INS v . Elias-Zacarias , 502 U.S. 478, 481 (1992) ( providing that the I J ’s ruling s should beNo. 05-3747

Berishaj v. Gonzales Pag e 9

I nd e te r

mi n in g w h e th e r

B e r is h a j f a ll s w it h in a p r o te c te d

g r o u n d , th e e n ti r e ty

o f th e I J’s 3 conclusion is as f

o l l o ws : “W h ile the Court sy mpathizes with t he re spondent’s cla im and with her fea rs, the Court finds that she ha s not established that she fa lls withi n one of the protec ted g rounds.” The I J provided no leg al analy sis or any rea soning whatsoeve r to support her c onclusion. Moreove r, t h e IJ fa i l ed t o ev en i d en t i fy wh i ch o f t h e f

i v e p ro t ec t edgro u n d s s h e c o n s i d er ed

. Ye tat t h e h ea ri n g, Be rishaj, throug h her counsel, stated that “[h] er pa rticular soc ial g roup is a woman who is not will ing to g o throug h a for ced ma rriag e.” A s such, the I J should have fir st identified the protec ted g round Be rishaj contende d she fa lls under (pa rticular soc ial g roup), a

nd t h en d iscussed why

Be rishaj had failed to de monstrate her

membership in this g roup. I n light of the I J ’s unsupported c onclusion, were Be rishaj’s member ship in a particular social g roup the only

g round for

denying he r application, we would rema

nd her c ase. See G onzales v. Thomas , 126 S. Ct. 1613, 1615 (2006) ( holding that whe re the I J fails to make a

proper inquiry and support its co n cl usions with analy sis and rea soning, “ the proper course , except in rar e circumstance s, is to rema nd to the ag ency

for a dditional investigation or e xplanatio n” ); see also W u v. Gonzales , No. 05-3939, 2007 U.S. App. L EXI S 1833, *7-8 (6th Cir. J an 26, 2007) ( unpublished) (“ [ W ] h er e . . . a r eviewingcourt c annot sustain an ag ency decision be c a us e the a g e nc y

ha s f a ile d to c on sid e r a

le g a l is su e c e ntr a l to re so lut ion of the pe tit ion e r’ s c la ims , t h e ap p ro p ri at e r em ed y

i s re m an d t o t h e a gen cy

fo r f u rt h er co n s i d er at i o n ) ( ci t i n g IN

S v . V e ntu ra , 537 U.S. 12, 16-17 (2002))

. Notably , in a fa ctually -similar case , the Second Circuit vac ated the B I A’s af firmanc e of the I J ’s denial of

an applica

nt’s asylum claim where the applica nt had suffe red perse cution on acc ount of her mem b er ship in a particular social g roup — women who have be en sold into marriag e. See Gao v. Gonzales , 440 F.3d 62, 70 (2d C ir. 2006) (finding that (1) Gao be longe d to a par ticular socia l gro u p co n s i s t i n g o f wo m en wh o h av e b ee ns o l d i n t o m arri age (r ega rd l es s o f w h et h er t h e m arri age has taken place ); (2) Gao lived in a pa rt of China whe re f

orce d marria g es ar e valid and e nforc eable ; and (3) based on he r testimony , which the I J d eeme d cre dible, she established she would suffe r perse cution on acc ount of her membership in the group). Whil e Ga o’s ca se may have be en strong er than B erishaj’ s, we be lieve that such de cisions are best left to an I J to decide in the f irst instance “ on upheld if “suppor

ted by rea sonable, subst antial, and probative evide nce on the rec ord consider ed as a whole” ). The I J found t hat Berishaj is ineligible for asy lum beca use she does not fall within one of the protec ted g rounds, and e ven if she doe s, she has not estab l i s h ed t hat the g overnme nt, or someone whom the g overnme nt is unwilling or unable to c ontrol, perse cuted her. Although we a re unconvince d with respec t to the first g round, we hold that substantial evidenc e supports the second g ro un d f or de nyingB e ri sh a

j’ s a pp lic a tio n f

or a sylum

. 3No. 05-3747

Berishaj v. Gonzales Pag e 10

a ca se by case basis,” id

. at 6 7 (q u o t i n g Ma tte r o f A c os ta , 19 I . & N . Dec . 211, 233 (B I A 1985)). See id. a t 70 n. 6 ( “ We n ote , ad dit ion a lly , that our de fi nit ion of Ga o’ s soc ia l gr ou p is ta ilo re d to the fa c ts of this case and does not re flec t any outer limit of cog nizable social g roups.”)

. As the I J corr ectly

pointed out, any

harm suff

ere d by Be rishaj was not at the hands of the g overnme nt, as Ademi wa s not a member or employ ee of the gover nment. Howeve r, whe ther the g overnme nt was unwilling or unable to control Ademi is a closer question. In support of her finding that the g overnme nt w as not unw illing or unable to pr otect Be rishaj, the I J explai n ed t h at wh en Ad e mi h it B e ri sh a

j in Pr ist ina on F e br ua ry 9, 20 02 , th e po lic e too k h im a wa y , a nd “ [a] c ourt

c a se

was started a g ainst him and he wa s convicted of assault and punished,” althoug h she did note that Ademi’s punishment wa s “minimal.” Acc ording to a translate d court doc ument from that conviction, Ademi slapped Be rishaj in the fac e and stated “I ’ll kill you. I ’ll never let y ou g et another man, but me in y our life.” The doc ument that st ates that “ [t ]hi s is an infrac tion of Article 18, Parag raph 1, Point 5 of Public Order L aw a nd for this he g ets pena liz ed[.] ” We rea liz e that the wor ding in the c ourt document c ould be read t o fo cu s on the phy sical location of the disturba

nce, r ather

than the fa ct that Ademi hit B erishaj, and thus w e wonder whether Ademi was simply

penalized for c reating a

public disturbance . For

ex am p l e, t h e tra

nslated cour

t document states that Adem i testified that he “ slapped F jolla Be rishaj in a public plac e.” A nd notably , althoug h the judg e im posed a 250 euro fine i n lieu of a six teen da y jail sentence , the 2002 Country Report for the Fe dera l Republic of Yugoslavia and the 2003 Country Report for Ser

bia and Monteneg ro both state that the a pplicable pe nalties for dome stic abuse o f wo men “includeNo. 05-3747

Berishaj v. Gonzales Pag e 11

See U.S. D e p ’ t o f St a te , Co u n tr

y Re p o rts o nH u ma

nRi g h ts Pr a c ti c e s f

o r th e F e d e ral 4 Republic of Yug oslavia (2002) , available at htt p:/ /www .s tate .g ov/g /dr l/r ls/

hr rp t/2 00 2/1 84 01 .h tm; U.S. Dep’t of State, Country Reports on Human Rights Practice s for Serbia and Monteneg ro (2003) , available at

htt p:/ /w ww .s tate .g ov /g /dr l/r ls/

hr rp t/2 00 3/2 78 74 .h tm. incar cer ation for pe riods of 6 m onths to 5 y ear s.” Also, we find the j udg e’s c omment that “eve ry 4 Albanian woma

n g ets hit by

the husband” to be more tha n a bit troublesome. But de spite our doubt s reg arding the underly ing crime for which Ademi was punished, the I J’s i nte rp re tatio n o f t

he c ourt do c ume nt—

that A de mi w a s p e na lize d f or hittin g B e r i sh a

j—i s e nti re ly plausible. Significa

ntly , the translate d court document states that the police “ filed the battery and

as sa ult case number . . . to start the infr action p roce dure a g ainst [Ademi] .” (Empha sis added.) Fur ther, it appe ars that Ade mi was convicte d for only slapping Be rishaj, which may not rise to the level of “ domestic abuse” as provided in the Country Reports. Plus, Ademi a p p ears to have be en prosec uted under

the local law s in Pristina, so it is not te rribly helpful to compare Ademi’s sente nce to the sentenc e provided in the C ountry Reports. And presumably this was Ademi’s first off ense, wh ic h ma y have re su lte d in

a mor e le nie nt s e nte nc e . A lth ou g h th e ju dge’s ta ste le ss c omm e nt t o B e ri sh a j de mon str a te s h e wa s n ot s y mpathe tic to h e r p lig ht, the re c or d s ug g e st s th at he w a s st ill willing to punish Ademi. Ba sed on the e vidence befor e her , the I J conclude d that the g overnme nt of Kosovo wa s willing and a ble to protec t Be rishaj. While the evidence may support the conc lusion that A de mi’ s c on vic tio n w a s n ot b a se d d ir e c tly on his a ssa ult of Beris haj , w e c ann ot s ay that it

c om pe ls this c onclusion. See R amaj , 466 F.3d at 527. I n light of the extremely defe rential standa

rd of re view to which we must adhere , we hold that substantial evidenc e supports the I J ’s conc lusion that th e g ov e rnme nt w a s n ot u nw ill ingor

un a ble to c on tr ol A de mi.No. 05-3747

Berishaj v. Gonzales Pag e 12 We also note that Be rishaj may have be en able to satisfy

her bur den by

prese nting e vidence that her c ommunity

adher ed to the Code of K anun, and that the g overnme nt was aw are of this fac t but did nothingto preve nt it. However , even thoug h the I J appar ently thought B erishaj’ s testimony reg ardingthe pre sence of the Code of Kanun in her community was c redible, the re w as no evide nce in the rec ord establishing that the gover nment was unwillingor unable to overrule the Code whe re

nece ssary . Cf. Fiadjoe v. AG , 411 F.3d 135, 160-61 (3d Cir. 2005) (holding that wher e the applicant’ s father

enslave d and abuse d her in a ccor dance with the tenets of the Trokosi relig ion, the B I A’ s d e te rm inatio n that the Gh ana ian g ov e rnme nt w a s e ith e r u nw ill ingor

un a ble to c on tr ol h im

wa s no t supported by

substant i al evidenc e bec ause the BIA ig nored e vidence in the rec ord establishing the deep hold the T rokosi relig ion had upon many Ghanian pe ople). B. Withholding of Remova l Th e I J a ls o d e n ie d B e r is h a j’ s r e qu e s t f

o r w it h h o ld in g o f r e mo v a l p u r s u an t to 8 U

. S.C. § 1231(b)( 3). An a

pplicant may

b e granted withholding of r emoval if she e stablishes a “c lear p r o b a b i l i t y o f p e r s e c u t i o n ” b y p r e s e n t i n g e v i d e n c e s h o w i n g t h a t i f s h e r e tu r n s t o h e r h o m e c o u n t r

y, i ti s “ m o r e l i k e l y t h an n o t ” t h a ts h e w i l l b e p e r s e c u t e d o na c c o u n to f

h e r r a c e , r e l i g i o n , n a t i o n a l i t y, membership i n a particular soc ial g roup, or political opinion. IN S v . S te v ic , 467 U.S. 407, 424 (1 98 4) ; Mu lla i v . A sh c ro

ft , 385 F.3d 635, 639 ( 6th Ci r. 2 0 0 4 ). T hus, a cla im for withholding of

re m o v al car

ries a mor e string ent burde n of proof than does a

claim for a sy lum. Bec ause B erishaj failed to mee t the b u rd en o f p roof to establish eligibility for a sy lum, she cannot mee t the highe r burden of proof f or withholding of

remova l. Mullai , 385 F.3d at 639.No. 05-3747

Berishaj v. Gonzales Pag e 13 III

. This is a sy

mpathetic ca se ind ee d

. Ho we ver, a sy lum law does not provide r elief to a n

a pp lic ant a lle g ingpe rs e c uti on un le ss s he c an s ho w s ome ne xus to g ov e rnme nta l a c ts o r o mis sio ns . There fore , we DENY Be rishaj’s petition for r eview.No. 05-3747

Berishaj v. Gonzales Pag e 14

The c ourt document a lso states that when Ade mi slapped Be rishaj in the fa ce, he stated,

5 “[You] fil thy

prostitute, I ’ll kill y ou. I ’ll never let y ou g et another

man, but me in y our life.” P OLS TER, District Judge, concur ring in part and dissenting in part. I concur in that portion of the majority

opinion holding that the Immigration J udg e' s conclusion t hat Berishaj doe s not f a ll w it h in o n e o f th e p r o te c te d g r o u n d s f o r a s ylum is n o t s u

p p o rte d b y an y le g a l an a ly sis or

rea soning. Where Imust part company with the majority

is it s holding that ther e is substantial evidenc e to support the I J ’s conclusion that Be rishaj has not established that she was per secute d by someone wh o m th e g o v e r n me n t is u n w il li n g o r u n a b le to c o n tr o l. Wh il e it is tr u e th a t the g overnme nt prosecute d Ademi for pub l i cl y as s ault ing B erishaj a fter she had endur ed at lea st two prior beatings a

nd repe ated thre ats, the facts surrounding Ademi’s trial compel the conclusion that the g overnme nt was and is unwilling or unable to prote ct B erishaj f rom future attack. There is no dispute about the fac ts, as the I J found that B erishaj wa s “entire ly cre dible.” She te sti fi e d th a t A de mi’ s tr ia l be g an with the jud g e c omm e nti ng that “e ve ry Al ba nia n w oma n g e ts h it by the hu sb and .” I t w a s c e rt a inl y re a so na ble fo r A de mi t o c on c lud e that hi s in fracti on was no t a serious one in the e y es of the c ourt, so he tested that assumption. Af ter c oncedingthat he slappe d B e ri sh a j in pu bli c be c a us e sh e did

n’ t w ant t o s e e him

any mor e and wa s n ot i nte re ste d in

the ir relationship, he told t he judg e: “I ’m serious in g etting e ng ag ed a n d marry her a nd I ’ll not stop persuing[si c] seriously

about this matter.” 5 Ikn owwh a t I wo uld have do ne ha d a de fe nd ant i n a

sim ila r s itu a tio n f

loute d th e law i n th is fashion; I would have r esponded by imposing a stiff ja il sentence , coupled with a w arningabout eve n ha rs he r c on se qu ences sh ou ld t he re be any

fu rt he r i nc ide nts , a

nd Ic ann ot i ma g ine any

re a so na bleNo. 05-3747

Berishaj v. Gonzales Pag e 15 judge in any

country who would not have r esponded in the same way to Ademi’s decla

rations to the

c ourt
. Th e fa c t that the jud g e pr e sid ing ov e r Ad e mi’ s c a se sa id no thi ng wh a tso e ve r in re sp on se to Ad e mi’ s st a te me nts , a

nd the n im po se d o nly

a fi ne on Ad e mi, sen t an un mis taka ble sig na l to bo th Ademi and Ber ishaj that the Kosovo courts would not protec t Be rishaj from future attac ks, and that the Code of Ka

nun was more potent than Kosovo law. Ademi’s conduc t after

his court hea

ring and convic tion provide additional evidenc e that Ademi, undeter

red by his se ntence , intends to flout Kosovo law in favor of the dictates of the Code of Ka nun and ther efor e that the g overnme nt of Kosovo is unable or unw illing to protec t Be rishaj from private per secution at Ad em i ’s hands. I n the af termath of A demi’s conviction, his frie nds beg an publi cly threatening to kill Be rishaj, frequently making such t hreats to Be rishaj per sonally at her sc hool. Ademi also called Be rishaj daily on the t elephone , threatening that he wa s g oing to r ape

and kil l he r. B e ri sh a

j ju sti fi a bly fe are d f or he r l if e a t th a t poin t, a

nd fl e d th e c ountr

y , w iththe he lp of he r m oth e r a

nd an aunt wh o live s in

Mic hig an. Ad dit ion a lly , B e ri sh a j te sti fi e d th a t sh e sp ok e wi th her pare nts a fter flee ing to the United States, and lear ned that Ade mi had publically sworn a blood oath in front of the village elder s that he would kill Be rishaj. The e lders appr oved Ade mi’s blood

oath a s th e on ly

pr op e r w ay to re sto re his sh a me d hon or un de r the Cod e of Ka nun. Cr iti c a lly , A de mi must carr y out his blood oath under the Code; until his honor is restore d, Ademi cannot live in the

are a, he can’ t g et marr ied or have a f amily , or find employ

ment. As rec ently

as two months before the I J ’s hea

ring , two friends stil l living in Kosovo told Be rishaj t hat Ademi continued to threaten he r life. All of the e vidence Be rishaj presented compels me to conclude that the g overnme nt of Kosovo is una ble or unwi lli ngto p ro te c t B e ri sh a j f ro m pe rs e c uti on

a t A de mi’ s h and s.No. 05-3747

Berishaj v. Gonzales Pag e 16 Iam mindful of the def

ere ntial standard of

revie w in this case. In acc ordanc e with the “substantial evidenc e” sta ndard, how ever , Ifind that Be rishaj has met her bur den of de monstrating that the Kosovo g overnme nt is unable or unwilling to pr otect her from Ademi, and h er ev i d ence compels the c onclusion that the I J ’s dec ision to t he contr ary is not supported by substantial evidence

. Acc ording ly , Iwould RE VE RSE on the issue of private per secution, and REMAND for a de te rm inatio n o f whe the r B e ri sh a j f a lls wi thi n o ne of

the pr ote c te d g ro un ds fo r a sylum

.