News from the Courts
Sholla v. Gonzales—The Asylum Case Burden of Proof
The Court of Appeals for the Eighth Circuit (Court) recently granted a petition for review of an Order of the Board of Immigration Appeals (BIA). Petitioner Leonard Sholla, a native and citizen of Albania , entered the United States on December 2, 2000, with a valid tourist visa, which expired on June 1, 2001. One June 20,2001, Sholla applied for asylum, withholding of removal, and relief under the Convention Against Torture. On October 31, 2002, immigration authorities served Sholla with a notice to appear charging that he was a removable alien under 8 U.S.C. § 1227(a)(1)(B). After admitting removability, Sholla appeared for a merits hearing on September 29, 2004.
Sholla, along with his brother Milto, presented testimony evidence at the hearing to establish incidents of persecution that drove Sholla to flee to the United States . The testimony was uncontradicted, and the Immigration Judge (IJ) found the testimony to be credible. Sholla and Milto provided evidence that Sholla and his family became ardent supporters of the democratic reform movements against the Communist regime in Albania . In 1980, Sholla, his wife, and then-two-year-old daughter were arrested and placed in a hard-labor internment camp; they were released in 1981. Sholla, along with three of his brothers, became involved in anti-Communist political activities, and joined the Democratic Party, which formed in 1991. After the Albanian economy collapsed in 1997, Sholla and his brothers took positions in the Democratic campaigns which followed the Democratic prime minister’s resignation. The police at this time were controlled by the Socialists, who threatened Sholla on numerous times, often accompanied by violence. Sholla offered evidence of three specific incidents, all associated with Democratic Party meetings or peace demonstrations, where Socialist police beat him. After the Socialists won the 1997 elections, Sholla and his brothers were further targeted: a bomb exploded in Milto’s house, wounding his youngest son; another brother’s store was bombed; in 2000, masked men sprayed Sholla’s home with gunfire, wounding his youngest son. Sholla’s three brothers were granted asylum after fleeing to the United States , one of which was granted asylum one month prior to Sholla’s hearing, in the same immigration court as the IJ who decided Sholla’s case. In addition to this testimony evidence, Sholla offered a letter from the Democratic Party corroborating the attacks against him, a document from the Ex-Politically Persecuted Association in Albania, and other documentation verifying his identity and the identities of his family members.
In an oral decision, the IJ summarized that Sholla’s testimony was credible, but denied his asylum and withholding of removal, finding that the incidents that happened to Sholla in 1997 were "not sufficient to meet the burden of proof that the respondent has a well-founded fear of future persecution" because the record included reports asserting that conditions in Albania have since improved. The IJ also stated that the rifle-assault which wounded Sholla’s youngest son was not supported by enough evidence to show that it was carried out by the Socialist police. In addressing the issue of past persecution, the IJ stated that "while the respondent may have been harassed or even subjected to police brutality . . . the Court cannot find that rises to persecution within the meaning of the [Immigration and Naturalization] Act." The IJ also denied the petition for relief under the Convention Against Torture, stating that the incidents Sholla suffered did not amount to torture within the meaning of the regulations. Sholla appealed this decision to the BIA, which adopted and affirmed the IJ’s decision without comment.
In reviewing the lower courts’ decisions, the Court initially set out principles that govern the analysis of asylum cases. First, the Court will review a Board’s factual findings for substantial evidence and legal determinations de novo, and when the BIA reviews a decision of the IJ without comment, the Court will review the decision of the IJ. See Bushira v. Gonzales, 442 F.3d 626, 630 (8th Cir. 2006). Using a substantial evidence standard, the Court must affirm unless the evidence is "so compelling that no reasonable factfinder could fail to find" that the petitioner qualifies for asylum. INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S. Ct. 812, 117 L. Ed. 2d 38 (1992). The Court went on to outline the requirements for asylum relief as follows: the petitioner must be unable or unwilling to return to his designated country because of persecution or well-founded fear of persecution on the basis of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A). The Court also noted that persecution is a concept that goes beyond low-level intimidation or harassment, but is also fluid such that the threat of death, torture, or injury to one’s person or liberty may fall within the concept of persecution. See Shoaira v. Ashcroft, 377 F.3d 837, 844 (8th Cir. 2004); Bellido v. Ashcroft, 367 F.3d 840, 843 (8th Cir. 2004); Regalado-Garcia v. INS, 305 F.3d 784, 787 (8th Cir. 2002). Finally, if an alien establishes that he has been the victim of past persecution, there is an automatic presumption that his fears of future persecution on the same basis are well-founded. 8 C.F.R. § 1208.13(b)(1). At this point, the burden of proof shifts to the government, Id. § 1208.13(b)(ii), to show, by a preponderance of the evidence, that there has been a "fundamental change in circumstances" that renders the alien’s fears unfounded, or that the alien could reasonably live in another part of the country of removal. Id. § 1208.13(b)(1)(i)(A), (B).
In its analysis, the Court stated that Sholla unquestionably alleged past persecution by state officers on the basis of his political beliefs, and this raises the threshold question of whether he met his burden of proof to establish past persecution which would entitle him to a presumption of a well-founded fear of future persecution in Albania . The Court found that the IJ ignored this step, committing legal error by failing to find whether the alien did in fact establish past persecution. Bushira, 442 F.3d at 631-33. The Court noted that the IJ only described the incidents of violence and harassment in light of evidence of improved Albanian conditions, concluding that Sholla failed to meet his burden. The Court concluded that under Bushira, this fact alone warrants remand. Id. Furthermore, the Court noted that the IJ based its conclusion on country reports that did not establish a pattern of regression or violent behavior of the Socialist Party; however, the Court stated that an absence of a pattern of persecution does not determine the questions of whether Sholla suffered past persecution. See Corado v. Ashcroft, 384 F.3d 945, 947 (8th Cir. 2004). The Court explained that a pattern of persecution is only relevant when an alien has not shown past persecution or any evidence of a "reasonable possibility that he or she would be singled out individually for persecution." 8 C.F.R. § 1208.12(b)(2)(iii). After reviewing Sholla’s undisputed testimony, which the IJ found credible, the Court held that the record compels any reasonable factfinder to conclude that Sholla suffered past persecution and was therefore entitled to the presumption of a well-founded fear of future persecution. This shifts the burden to the government to prove there has been a fundamental change in circumstances or that it would be reasonable for Sholla to relocate to another part of Albania . As the IJ in this case repeatedly put this burden on Sholla instead of the government, the Court remanded this case to the BIA to reconsider Sholla’s claim, with the burden on the government to prove that Sholla’s fear of future persecution is no longer well-founded due to recent changes in circumstances in Albania, or that he could reasonably relocate to a different region of Albania.
