Hysi, Ermand v. Gonzales, Alberto R.

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 04-2572

ERMAND HYSI and MIRELA HYSI,

Petitioners,

v.

ALBERTO R. GONZALES,1

Respondent.

____________

On Petition for Review of an Order of

the Board of Immigration Appeals.

No. A 75 320 668 and No. A 75 320 670

____________

ARGUED JANUARY 13, 2005—DECIDED JUNE 15, 2005

____________

Before ROVNER, EVANS and SYKES, Circuit Judges.

ROVNER, Circuit Judge. Ermand Hysi (“Hysi”) and his

wife, Mirela, are citizens of Albania. Hysi overstayed his

visa while visiting the United States and Mirela arrived

here without any valid entry documents. When the

Immigration and Naturalization Service (“INS”) began

1

Pursuant to Federal Rule of Appellate Procedure 43(c)(2), we

have substituted the current Attorney General of the

United States, Alberto R. Gonzales, for his predecessor as the

named respondent.

2 No. 04-2572

proceedings to remove them, Hysi sought asylum, with-

holding of removal under the United Nations Convention

Against Torture and Other Forms of Cruel, Inhuman or

Degrading Treatment or Punishment (“Convention Against

Torture”), and in the alternative, voluntary departure.

Mirela’s claims are derivative of Ermand’s and thus the

focus of the appeal is exclusively on Ermand Hysi’s claims.

An Immigration Judge (“IJ”) found that Hysi lacked cre-

dible evidence to support his claims and therefore denied

Hysi’s applications for asylum and withholding of removal

as well as his request for voluntary departure. Instead, the

IJ ordered the removal of Ermand and Mirela Hysi to

Albania. The Board of Immigration Appeals (“BIA”) sum-

marily affirmed the IJ’s decision and we now affirm as well.

I.

Hysi arrived in the United States in late November 1996

as a non-immigrant visitor with authorization to remain

here until June 14, 1997. Rather than leaving at the ap-

pointed time, Hysi remained and in July 1997, he filed an

application for asylum with the INS. The INS referred the

application to the immigration court and charged Hysi with

removability as an alien who remained in the United States

for a time longer than permitted. See 8 U.S.C.

§ 1227(a)(1)(B). At a preliminary hearing, Hysi admitted

the factual allegations against him and conceded that he

was removable. He petitioned the court for asylum, with-

holding of removal under the Convention Against Torture

and, in the alternative, voluntary departure.

The IJ held a hearing at which Hysi presented testimony,

documentary evidence and an expert witness in support of

his claims. Hysi testified that his family opposed the com-

munist regime in Albania, and that after democratically-

elected President Berisha came into power, he went to work

for the Berisha government. His job involved filing and

No. 04-2572 3

archiving documents, and maintaining the personnel files

of people working for the administration. He also managed

employees with housekeeping, cleaning and utilities duties.

Hysi believed that people who had worked for the commu-

nist regime should not be hired to work in the Berisha-led

government, but his manager disagreed. Hysi had other

conflicts with his manager and was fired from his job in

1996 due to, he claims, his outspokenness.

Hysi testified that he filed a complaint seeking to get his

job back but that complaint was reviewed by the same per-

son who had fired him and thus was denied. He then filed

a complaint with the High Court of Albania that was also

denied. Hysi did not retain copies of these complaints and

thus had no documentary evidence to support this part of

his account. In addition to his job with the Berisha admini-

stration, Hysi worked about once a month on a committee

responsible for returning to the original owners land and

property that had been seized by the communist regime.

Hysi’s job was to review claims for property, verify which

claims were legitimate and then recommend to the commit-

tee chairman whether the property in question should be

returned to the claimant. Hysi averred that he was unable

to help anyone retrieve their property because the commit-

tee chairman would instead give the property to people who

paid bribes or were high ranking government officials. After

he lost his job with the Berisha administration, Hysi was

also removed from the committee.

In January 1996, after losing both positions, Hysi stated

that he went to work for the Right Democratic Party

(known in Albania as the “PDD”) and also became a mem-

ber. In conjunction with the PDD, Hysi was paid to write

articles for publication. Hysi claimed he wrote articles that

criticized the Democratic Party and as a result he was phy-

sically attacked. In late May 1996, he testified, four men

kidnaped him, took him to a mountain and beat him. He

believed the men worked in the Berisha administration.

4 No. 04-2572

According to Hysi, the men warned him that if he continued

to speak or write against the Democratic Party, he would be

“in a lot more trouble.” Hysi testified that he was beaten

into unconsciousness by these men and that passersby later

helped him return home. He did not seek medical attention

for his injuries.

After this attack, Hysi testified, he visited the

United States. During his stay here, he wrote two political

articles which discussed the manipulation of upcoming

Albanian elections by the Democratic Party and the Socialist

Party. He faxed these articles to Albania where they were

published in two different newspapers in August 1996. Hysi

testified that these two newspapers were both published by

PDD members and that the publication of his articles in

these newspapers proved his membership in PDD. Hysi

testified that he lost all of his identification cards when he

lost his wallet on the airplane during his trip to the United

States in November 1996 and thus his only proof of mem-

bership in PDD was the two articles published in PDD

newspapers. He submitted these articles in support of his

application for asylum. He testified that, although he wrote

other articles about the government, he submitted these

two with his application for asylum because he thought

these were “the only ones that have to do with the case.” Tr.

at 150. He confirmed, when asked, that none of his other

articles had caused him problems with the government.

Hysi testified that he returned to Albania in

September 1996 and that in October of that year, he was

interrogated and held in the prosecutor’s office under the

pretext that he had offended President Berisha. He was

beaten and then released after being held two days. He

nonetheless continued his political activities after this at-

tack, but after the November elections, the same four men

who had kidnaped him earlier, kidnaped him again. He

testified that this time his attackers beat him and told him

that if he continued his political activities he would be

No. 04-2572 5

“physically eliminated.” He told the IJ that he required a

one-week stay in a hospital after this beating, and he pro-

vided documentation of the hospital stay. After his release

from the hospital, he and his family decided that it was best

for him to return to the United States. At the end of

November 1996, Hysi returned to the United States. After

his departure from Albania, Hysi testified, his wife was

pressured and threatened by people who told her that Hysi

would be harmed if he returned to Albania. Although his

wife could not say who these people were, she was fright-

ened and decided to come to the United States as well. She

arrived in the United States in August 1997.

On cross-examination, the INS questioned Hysi about the

authenticity of the newspaper articles that were the center

of his claim of persecution. The INS had the original prints

of the articles that Hysi had submitted in support of his

asylum claim, and the INS attorney pointed out that Hysi’s

name appeared to be in a different typeface than the rest of

the article, and was printed in bold unlike other printing on

the page. The IJ examined the newspapers and noted that

parts of the paper containing Hysi’s name were translucent

but the rest of the newspaper was not. The INS attorney

asked Hysi if his name had been stamped on the page after

publication. Hysi’s response to these discrepancies was that

he was in fact the author of these articles. While the

hearing proceeded, the IJ’s law clerk attempted to verify the

authenticity of the articles by contacting the Library of

Congress and by searching the internet. At the close of

evidence, the IJ returned to the issue because the clerk had

been unable to verify the true author of the articles.

Hysi’s counsel complained that the INS had these docu-

ments for a lengthy time without having them analyzed and

suggested that the articles be submitted for evaluation.

Hysi’s lawyer pointed out that neither the attorneys present

nor the IJ were experts who could determine the authentic-

ity of Hysi’s name on the newspapers. The IJ consequently

6 No. 04-2572

sent both newspaper articles to the INS Forensic Document

Laboratory (“FDL”) to determine whether they were

forgeries. The IJ set the case for status six months hence,

noting that she would not be present at that time:

I don’t anticipate that I’ll be here, but I’m going to leave

specific instructions for the next Immigration Judge,

because I’m of the opinion that if in fact these docu-

ments are legitimate and the hospital document is

found to be legitimate with no alterations, nothing frau-

dulent whatsoever about the document, I think that the

respondent has met his burden in establishing eligibil-

ity for the relief requested. However, on the other hand,

if anything whatsoever is found to be fraudulent about

these documents, that taints the entire claim, and in

that case, I don’t think anything the respondent said

can be believed, and it should be denied. And those are

the instructions I’m going to leave the next Immigration

Judge. Okay.

Tr. at 176-77.

In addition to his own testimony, Hysi presented an ex-

pert witness, Prenk Camaj, who testified that he had inter-

viewed government officials in Albania regarding Hysi.

Camaj testified that he spoke to the deputy chief judge of

the Albania Supreme Court, the commander of presidential

security for Albania during the Berisha administration, the

general in charge of all of all departments related to

security, and the minister of the interior. From these

sources, Camaj learned that Hysi would be persecuted on

his return to Albania because of the two articles he wrote

about the Berisha government. He also testified that one of

these sources told him that the government had a “very big

file” on Hysi and that Hysi was “hunted” by security forces.

Camaj was unable to verify the authenticity of the articles

Hysi claimed to have authored but he noted the articles

No. 04-2572 7

were very critical of the Berisha government and that Hysi

would be killed if he returned to Albania because of his

political views.

Six months later, the parties returned to court on the

status set by the IJ. As predicted, a new IJ presided, and

Hysi was present and represented by substitute counsel,

who was standing in that day for his regular attorney. After

noting that the matter had been set for status based on a

suspicion of fraud having been committed in the supporting

documents, the IJ noted that she had received the report

from the FDL indicating that someone had indeed tampered

with both newspaper articles. The IJ indicated that she

intended to issue a written decision based on this additional

evidence, and asked Hysi’s substitute attorney to tell his

regular counsel the plan of action, noting that if a written

decision was not the right course of action, she would “re-

calendar” the case again. After asking Hysi’s counsel

whether there was anything further (he replied “No, Your

Honor”), she closed the matter for written decision. Hearing

nothing further from any of the parties, the IJ issued the

written decision denying Hysi relief approximately five

months later.

In the written decision, the IJ noted the FDL’s conclusion

that the newspaper articles were fraudulent. The FDL

examiner remarked that the author attributions accompa-

nying the questioned articles were added to the newspapers

after the papers were printed. The examiner opined that

the process used to insert the author name after the fact

resulted in the text being indented into the surface of the

page unlike the other text printed on the page. In addition,

the examiner concluded that, for one of the newspaper

articles, a previous entry was eradicated from the name

area of the text, resulting in damage to the surface of the

paper. Because of this forgery, the IJ found that Hysi failed

to establish the underlying facts of his claim for asylum by

a preponderance of credible, probative evidence. The IJ

8 No. 04-2572

found specifically that the use of fraudulent documents in

making his claim seriously undermined Hysi’s credibility

and that Hysi failed to provide any convincing explanation

for questions regarding the authenticity of the articles. The

IJ noted that Hysi simply insisted that he wrote the articles

and that they were genuine even when confronted with the

obvious differences in typeface that were visible even to the

untrained eyes of the IJ and the INS attorney. The IJ found

that because the articles were fraudulent, Hysi’s entire

claim was suspect. Because Hysi lacked credible proof that

he wrote the articles, the IJ discounted Hysi’s claim that he

suffered persecution on account of the articles. The only

other mistreatment Hysi alleged was being fired from his

job, which the IJ found was insufficient to establish perse-

cution. The IJ gave minimal weight to the opinions of the

expert witness because the expert had relied for many of his

conclusions on Hysi’s representation that he had written

the articles and was known in Albania to be the author.

Accordingly, the IJ denied Hysi’s claim for asylum. The IJ

similarly rejected Hysi’s claim for withholding of removal,

which has a more stringent standard than the asylum

claim, and also denied his claim for relief under the Con-

vention Against Torture, again for lack of credible evidence.

The IJ found that Hysi was ineligible for voluntary depar-

ture and thus ordered that he and his wife be removed to

Albania. Hysi appealed to the Board of Immigration

Appeals, which affirmed, without opinion, the results of the

decision below. Hysi then appealed to this court.

II.

In his appeal, Hysi challenges the IJ’s adverse credibility

finding, arguing that the IJ erred because there was no evi-

dence supporting a finding that he altered the newspaper

articles and because his testimony was corroborated by the

expert witness. Hysi also complains that the IJ improperly

No. 04-2572 9

accorded weight to a statement his counsel made to an INS

attorney after the original hearing but before final status

when the IJ closed the case for evidence. Because the BIA

affirmed summarily, that is, without issuing a separate

opinion, we review the decision of the immigration judge

directly to determine if it is supported by substantial

evidence. Tolosa v. Ashcroft, 384 F.3d 906, 908 (7th Cir.

2004); Oforji v. Ashcroft, 354 F.3d 609, 612 (7th Cir. 2003);

Georgis v. Ashcroft, 328 F.3d 962, 966-67 (7th Cir. 2003).

A.

We will affirm the IJ’s decision if it is “supported by

reasonable, substantial, and probative evidence on the rec-

ord considered as a whole.” INS v. Elias-Zacarias, 502 U.S.

478, 481 (1992). Only where the evidence in support of the

application is so compelling that no reasonable fact-finder

could fail to find the requisite fear of persecution will we

reverse a decision for lack of evidence. Elias-Zacarias, 502

U.S. at 483-84; Georgis, 328 F.3d at 967. To qualify for asy-

lum, Hysi bore the burden of showing that he suffered past

persecution or has a well-founded fear of future persecution

on account of his race, religion, nationality, membership in

a particular social group, or political opinion. 8 U.S.C.

§ 1101(a)(42)(A); Ememe v. Ashcroft, 358 F.3d 446, 450 (7th

Cir. 2004). A petitioner’s experience of past persecution

gives rise to a rebuttable presumption that he will face

future persecution. 8 C.F.R. § 208.13(b)(1)(i); see, e.g.,

Oforji, 354 F.3d at 613.

We give great deference to an IJ’s credibility determina-

tions so long as they are supported by cogent reasons that

bear a legitimate nexus to the finding. Tolosa, 384 F.3d at

909. We will reverse an IJ’s credibility findings only in

extraordinary circumstances. Tolosa, 384 F.3d at 909. The

IJ found that Hysi was not a credible witness because the

FDL determined that the author attributions in the news-

10 No. 04-2572

paper articles were added after publication and, in one of

the papers, other text had been erased from the author

name area on the page before Hysi’s name had been added

on top of it. Because the newspaper articles were so central

to Hysi’s asylum claim and because the articles were

altered, the IJ declined to believe Hysi’s testimony.

This is not a case involving extraordinary circumstances.

The heart of Hysi’s claim is that he published two newspa-

per articles critical of the Berisha government and that as

a result of these articles, he was detained, interrogated and

beaten. He claims that because he continued his political

activities after this initial detention and beating, he was

kidnaped, beaten again and threatened that he would be

“physically eliminated” if he continued his political activ-

ities. Moreover, Hysi relies on the articles as proof of his

membership in the PDD. Indeed, Hysi testified that the

articles were the only evidence he had of his membership in

the PDD, having lost his identification cards while traveling

to the United States. If Hysi did not, in fact, publish these

two articles, the very articles that he testified were the only

ones relevant to his claim, then he would be hard pressed

to argue that the government persecuted him because of the

articles. Moreover, if the articles were fraudulent, the only

remaining proof of Hysi’s membership in PDD is Hysi’s own

testimony. The IJ was entitled to infer that Hysi or some-

one acting on his behalf altered the articles, and that the

articles were altered because they would not have sup-

ported Hysi’s claim in their original form. Adding or

changing the author attribution impugned Hysi’s credibility

on an issue central to his claim. The IJ was therefore

entitled to discount his remaining testimony as well.

Hysi argues that other evidence in the record supports his

claim that he was persecuted because of his political beliefs

and activities. He points to his expert witness, Camaj, who

testified that he interviewed government officials in

Albania who verified that Hysi has a “very big file” with the

No. 04-2572 11

government and that he would be hunted by security forces

and killed if he returned to Albania. The IJ reasonably

discounted this testimony because it was based in part on

the expert’s belief that Hysi authored the articles in

question and his belief that Hysi was known in Albania as

the author of the articles. Hysi argues that although

someone altered the newspaper articles, there is no evi-

dence in the record that he is the person who committed the

forgery and no evidence that he was not the author of the

articles. Again, though, the IJ reasonably inferred that Hysi

altered the articles he submitted to the INS. Hysi bore the

burden of proving by a preponderance of the evidence that

he suffered persecution because of his political beliefs. His

argument that there is no evidence he did not author the

articles is thus irrelevant. He bore the burden of demon-

strating that he did author the articles that were the basis

of the government’s displeasure with him and he failed to

establish this fact with credible evidence.

Finally, Hysi complains that he was not given an opportu-

nity to rebut the report from the FDL. We reject this claim

as well. First, at the hearing where Hysi was questioned

about the authenticity of the articles, Hysi’s own attorney

agreed that the FDL was the appropriate entity to examine

the articles. Hysi’s counsel did not request an opportunity

to have another expert provide an independent report. At

the status hearing where the report was received into

evidence, the IJ clearly told Hysi’s substitute counsel that

a written opinion would be issued unless she heard any-

thing further from the parties. Hysi’s lawyer did not ask for

an independent examination of the documents then or at

any time thereafter. Hysi cannot complain at this late date

that he wished to hire an independent examiner to refute

the FDL’s conclusions about the newspaper articles, having

foregone numerous opportunities to do so while the case

was still before the IJ. We find no error in the IJ’s conclu-

sion that the author attributions for the newspaper articles

12 No. 04-2572

were fraudulently added after the fact. Because the articles

were central to Hysi’s claim that he was persecuted for his

political views and membership in the PDD, the IJ was

entitled to find that Hysi was generally not a credible

witness. In short, the record evidence does not compel us to

find the requisite fear of persecution and the IJ’s conclu-

sions are supported by substantial evidence. We therefore

deny the Petition for Review of Hysi’s asylum claim.

Having failed to meet the more lenient burden of proof for

asylum, Hysi cannot establish that he is entitled to with-

holding of removal under 8 U.S.C. § 1231(b)(3) and 8 C.F.R.

§ 1208.16(c)(2). Nor can he establish eligibility for protec-

tion under the Convention Against Torture. Ahmed v.

Ashcroft, 348 F.3d 611, 615 (7th Cir. 2003) (an applicant

who fails to establish eligibility for asylum necessarily can-

not satisfy the more stringent requirements for withholding

of removal under 8 U.S.C. § 1231(b)(3), nor the require-

ments for withholding of removal under the Convention

Against Torture). We thus deny the Petition for Review in

its entirety.

B.

After the initial hearing but before the IJ closed the case

for evidence, the INS filed with the immigration court a

“Notification of Alleged Perjury and False Information”

(“Notification”). The Notification recounted that Hysi pro-

vided the INS with original copies of two newspaper articles

when he applied for asylum and then submitted photocopies

in support of his testimony at the hearing. The Notification

stated that the IJ had submitted the original newspaper

articles to the FDL after their authenticity was called into

question during the hearing. Following that hearing,

according to the Notification, the INS attorney encountered

Hysi’s counsel and reported the following:

No. 04-2572 13

On April 12, 2002, I had a chance encounter with

counsel for the respondent. Counsel informed me that

I was “right on the money” about the articles in ques-

tion. Specifically, he stated that the respondent in-

formed him that he did not write the articles. Counsel

further advised me that he did not have this knowledge

prior to the respondent’s confession.

R. at 416-18 (footnote omitted). Having notified the court

about this conversation, the INS requested that the IJ take

“appropriate action.” In the IJ’s opinion, she stated that

because Hysi had not been given an opportunity to refute

the allegations in the Notification, she would give the

Notification “minimal weight.” In his appeal, Hysi chal-

lenges whether the IJ could properly give any weight to the

Notification without violating Hysi’s due process rights

because Hysi had no opportunity to cross-examine the INS

attorney regarding the allegations. Hysi attached his

lawyer’s response to the Notification to his reply brief

(Hysi’s lawyer has an entirely different account of that con-

versation) and the government moved to strike it because it

was not part of the record below. Curiously, the document

bears the file stamp of the Department of Justice Executive

Office for Immigration Review and is stamped with the date

June 12, 2002, well before the IJ issued her opinion. Yet the

government argues that this document is extra-record

evidence that was not part of the administrative record. This

is a mystery that we need not solve. In reviewing the IJ’s

decision, it is readily apparent that when the IJ said she

would give the Notification “minimal weight,” she meant

“no weight.” The IJ did not rely on the Notification at all in

reaching her decision, relying instead on the report of the

FDL in finding that Hysi lacked credibility. The mysterious

response from Hysi’s counsel thus becomes irrelevant. The

IJ considered neither document and this court has given no

weight to either document. The motion to strike is therefore

denied as moot.

PETITION FOR REVIEW DENIED.

14 No. 04-2572

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—6-15-05