Xhino Gjetani v. William Barr, U. S. Atty Gen

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

July 31, 2020

No. 18-60827 Lyle W. Cayce

Clerk

Xhino Gjetani,

Petitioner,

versus

William P. Barr, U.S. Attorney General,

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A216 285 464

Before Dennis, Southwick, and Ho, Circuit Judges.

James C. Ho, Circuit Judge:

Xhino Gjetani, an Albanian citizen, seeks asylum on the ground that

members of his country’s Socialist Party threatened to kill him three times,

and physically attacked him on one of those occasions, due to his support for

the Albanian Democratic Party. What they did to him is repugnant. No

person should have to endure what he suffered. But that does not entitle him

to asylum under our laws. Our Nation’s immigration policy is determined by

the political branches, not the courts.

No. 18-60827

Congress has made clear that asylum is reserved for people who are

the specific targets of “persecution.” That means a systematic, sustained

pattern of assaults or other acts of oppression—not individual or even a

handful of assaults or threats. Furthermore, Congress has vested broad

discretion in the Executive Branch to make asylum determinations, and

instructed courts to give significant deference to Executive decisions.

That deference is required here. Gjetani suffered three threats and

one attack during a short period of time. Had those incidents continued, he

might very well have stated a case of persecution. But he experienced no

further threats or attacks for the following six months, before he decided to

leave Albania. Based on the record before them, both the Immigration Judge

and the Board of Immigration Appeals concluded that these facts did not

amount to persecution. Our precedents leave us no choice but to defer to

that Executive Branch determination. Accordingly, we deny the petition for

review in part and dismiss the petition in part.

I.

Gjetani is an Albanian national and a supporter of the Albanian

Democratic Party. While in Albania, he was, according to his testimony,

threatened three times and assaulted once on account of his political beliefs

by members of the rival Socialist Party.1

The first time he was threatened, on June 15, 2017, Gjetani and his

friends were publicly carrying flags for the Democratic Party, when they

1

The dissent says that Gjetani was threatened four times, rather than three. The

discrepancy results from the dissent’s decision to treat one of his three threats as two

separate incidents. We defer to the IJ, BIA, and Gjetani himself in stating that he was

threatened three times. For example, his asylum interview contains the following exchange

between Gjetani and the asylum officer: “Q: How many times have you been threatened?

A: I’ve been threatened three times.”

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No. 18-60827

encountered members of the Socialist Party. The Socialist contingent

confiscated their flags and threatened to kill Gjetani if he carried Democratic

Party flags again. Gjetani attempted to file a report with the police, but was

rebuffed.

Three days later, Gjetani was at home with his family when Socialist

Party members came canvassing for votes. Upon learning that Gjetani and

his family supported the Democratic Party, the Socialist Party members

attacked Gjetani and his father. Gjetani suffered injuries to his left knee and

toe. According to Gjetani, four men assaulted him and his father using a belt

and a “sharp metal object.” The Socialist Party members said they would

kill Gjetani if he did not vote as directed. Gjetani went to the hospital,

received stitches, and was discharged that day. He was not prescribed any

pain medication.

A week later, on Election Day in Albania, Gjetani and his family were

traveling to vote. They were confronted by Socialist Party members who

demanded they vote for the Socialists or else face death.

Six months later, on December 20, 2017, Gjetani left Albania. He filed

an application for asylum, withholding of removal, and relief under the

Convention Against Torture (CAT). Gjetani explained that he feared he

would be persecuted, beaten, and killed because of his political opinions if he

returned to Albania.

The Immigration Judge (IJ) held an evidentiary hearing on June 4,

2018. The IJ concluded that these incidents did not constitute persecution.

And although Gjetani had a subjective fear of future harm, the IJ found that

his fear was not objectively reasonable. The IJ also denied relief under

withholding of removal and the CAT.

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The Board of Immigration Appeals (BIA) adopted and affirmed the

IJ’s decision and dismissed the appeal. Gjetani now seeks review in federal

court.

II.

We generally review only the asylum decision of the BIA, although, as

here, we will consider the IJ’s decision if it influenced that of the BIA. See

Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009).

Asylum is available to a “refugee” at the discretion of the

government. 8 U.S.C. § 1158(b)(1). A “refugee” is “any person . . . who is

unable or unwilling to return to . . . [his] country because of persecution or a

well-founded fear of persecution on account of [a protected ground].” Id.

§ 1101(a)(42). To establish eligibility for asylum, Gjetani was required to

demonstrate either past persecution or a well-founded fear of future

persecution. See 8 C.F.R. § 208.13(b). But even proving eligibility “does not

automatically entitle a refugee to asylum.” Chen v. Gonzales, 470 F.3d 1131,

1135 (5th Cir. 2006). Federal law makes clear that “the Attorney General’s

discretionary judgment whether to grant [asylum] relief [to a refugee] shall

be conclusive unless manifestly contrary to the law and an abuse of

discretion.” 8 U.S.C. § 1252(b)(4)(D).

As Gjetani acknowledges, “[w]e use the substantial evidence standard

to review the IJ’s factual conclusion that an alien is not eligible for asylum.”

Zhao v. Gonzales, 404 F.3d 295, 306 (5th Cir. 2005). Under this deferential

standard, we will grant a petition for review only when the record evidence

“compels” a conclusion contrary to the agency’s determination. Id. (citing

INS v. Elias–Zacarias, 502 U.S. 478, 481 n.1 (1992)). “The applicant has the

burden of showing that the evidence is so compelling that no reasonable

factfinder could reach a contrary conclusion.” Chen, 470 F.3d at 1134

(emphasis added). After all, Congress has declared that “administrative

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No. 18-60827

findings of fact are conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).

Moreover, our circuit precedents (which we are, of course, duty-

bound to follow) make clear that we use the “substantial evidence” standard,

even when the agency determines the alien is credible and accepts his version

of the facts. See, e.g., Tamara-Gomez v. Gonzales, 447 F.3d 343, 347 (5th Cir.

2006) (“[r]eviewing these findings under the substantial evidence standard”

when an alien was deemed “credible” and “‘accepting his account’” of the

facts).2

A.

First, some preliminary procedural issues. Gjetani argues that the IJ

used the wrong legal standard in evaluating past persecution, and that the IJ’s

persecution finding failed to sufficiently analyze the extremity of the harm he

2

The dissent’s contention that we should apply de novo rather than substantial

evidence review is thus contradicted by circuit precedents such as Tamara-Gomez.

In response, the dissent contends that Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062

(2020), abrogates our substantial evidence review circuit precedents. It does not.

Guerrero-Lasprilla addressed the scope of the judicial review provision in 8 U.S.C.

§ 1252(a)(2)(D)—namely, “whether the statutory phrase ‘questions of law’ includes the

application of a legal standard to undisputed or established facts.” Id. at 1068.

But the issue here is not whether we have jurisdiction to review Gjetani’s

persecution claim under § 1252(a)(2)(D) (we do), but what standard of review we must

apply to his claim under § 1252(b)(4)(B). See, e.g., Tamara-Gomez, 447 F.3d at 347

(applying substantial evidence review under § 1252(b)(4)(B)). These are distinct issues—

which explains why the majority in Guerrero-Lasprilla does not even mention, let alone

purport to construe, § 1252(b)(4)(B). And of course, only our en banc court can “overrule

the decision of a prior panel unless such overruling is unequivocally directed by controlling

Supreme Court precedent”—a standard plainly not met here. United States v. Zuniga-

Salinas, 945 F.2d 1302, 1306 (5th Cir. 1991).

So it is not surprising that even Gjetani acknowledges that his appeal is subject to

substantial evidence, not de novo, review.

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No. 18-60827

suffered in light of the entire record. Neither of these claims was raised

before the BIA. Gjetani has thus failed to exhaust his administrative remedies

as to those claims. We therefore lack jurisdiction to consider them. See

Omari v. Holder, 562 F.3d 314, 318 (5th Cir. 2009) (“Petitioners fail to

exhaust their administrative remedies as to an issue if they do not first raise

the issue before the BIA.”). These claims are dismissed.3

B.

Gjetani contends that the attack and death threats against him

amounted to persecution, and that the BIA erred in concluding otherwise.4

Persecution is often described in the negative: It is not harassment,

intimidation, threats, or even assault. Persecution is a specific term that

“does not encompass all treatment that our society regards as unfair, unjust,

or even unlawful or unconstitutional.” Majd v. Gonzales, 446 F.3d 590, 595

(5th Cir. 2006) (quoting Al–Fara v. Gonzales, 404 F.3d 733, 739 (3rd Cir.

2005)). Persecution requires more. As our distinguished colleagues from

courts of appeals across the country have elaborated, it has the quality of a

sustained, systematic effort to target an individual on the basis of a protected

ground. See Bocova v. Gonzales, 412 F.3d 257, 263 (1st Cir. 2008), superseded

in unrelated part by 8 C.F.R. § 1240.26(i) (noting persecution is characterized

as “mistreatment [that] can be said to be systematic rather than reflective of

a series of isolated incidents”); Lie v. Ashcroft, 396 F.3d 530, 537 (3rd Cir.

3

Gjetani also sought relief before the IJ and BIA under the Convention Against

Torture. But he has not challenged the denial of that relief before this court. We therefore

treat that claim as abandoned. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).

4

Gjetani also challenges the BIA’s reliance on Matter of Acosta, 19 I. & N. Dec. 211,

222 (BIA 1985), overruled in part on other grounds by Matter of Mogharrabi, 19 I. & N. Dec.

439 (BIA 1987), for allegedly setting out the wrong legal standard for persecution. We find

no error. The BIA correctly stated the governing legal standard.

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No. 18-60827

2005), superseded in unrelated part by 8 U.S.C. § 1158(b)(1)(B)(i) (holding a

“pattern or practice” of persecution requires it be “systemic, pervasive, or

organized”) (citation omitted); Baharon v. Holder, 588 F.3d 228, 232 (4th

Cir. 2009) (finding “[a] key difference between persecution and less-severe

mistreatment is that the former is ‘systematic’ while the latter consists of

isolated incidents”); Wijono v. Gonzalez, 439 F.3d 868, 874 (8th Cir. 2006)

(holding “persecution of [a] group must be ‘systemic, pervasive, or

organized’”) (citation omitted). See also Woldeyes v. Ashcroft, 83 F. App’x

586, 588 (5th Cir. 2003) (per curiam) (finding no persecution absent

“evidence of systematic persecution by the government”).

So even those subject to brutal physical attack are not necessarily

victims of “persecution.” Courts have condemned all manner of egregious

and even violent behavior while concluding they do not amount to

persecution. See, e.g., Singh v. Barr, No. 19-60150, 2020 WL 3407167, at *3

(5th Cir. June 19, 2020) (per curiam) (no persecution when an individual was

twice beaten, including once until unconscious and resulting in a swollen

shoulder and legs); Venturini v. Mukasey, 272 F. App’x 397, 402–03 (5th Cir.

2008) (per curiam) (no persecution when an individual was beaten twice and

hospitalized for bruises, a broken rib, trouble breathing from tear gas, and

overnight hospitalization); Rojas v. INS, 937 F.2d 186, 188 (5th Cir. 1991) (per

curiam) (no persecution when an individual was “arrested, beaten, and

tortured”); see also Reyes-Morales v. Gonzales, 435 F.3d 937, 942 (8th Cir.

2006) (no persecution when an individual was beaten unconscious and left

with “a physical deformity and several scars” while his “friend was killed

during this incident”); Dandan v. Ashcroft, 339 F.3d 567, 573–74 (7th Cir.

2003) (no persecution when an individual was kidnapped, detained for three

days without food, and extensively beaten, resulting in facial swelling).

When we do have evidence of regular and methodical targeting, by

contrast, we have not hesitated to find persecution. Take Tamara-Gomez v.

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No. 18-60827

Gonzales, 447 F.3d 343 (5th Cir. 2006). Henry Tamara-Gomez was a

Colombian helicopter mechanic who accompanied a team of Colombian

National Police (CNP) officers on a retrieval mission to recover the bodies of

fallen CNP comrades killed in a remote jungle village by terrorists in the

Fuerzas Armadas Revolucionarias de Colombia (FARC). Id. at 345. Soon

after the mission concluded, Tamara-Gomez began receiving death threats

against him and his family. Id. at 346. The calls went to his cell phone, and

then spread to his home phone. Id. Fearing for his family’s safety, Tamara-

Gomez uprooted his wife and children and moved them away. Id. Within

weeks, the calls began again at the new house, now accompanied by demands

for money. Id. Soon after, a bicycle bomb detonated in his family’s new

neighborhood, killing five civilians. Id. And all the while, FARC was

systematically hunting down and executing Tamara-Gomez’s retrieval team

members and their families. Id.

That is prototypical persecution. The refugee faced an organized,

relentless campaign of intimidation, extortion, and murder. Gjetani’s

treatment at the hands of Socialist Party members cannot be said to be the

same. The three occasions on which he was threatened—one of which

resulted in physical injury—did not necessarily reflect the kind of pattern of

sustained pursuit that persecution requires. Instead, the IJ concluded that

these acts were one-off incidents related to the one-time event of the

Albanian election, and unlikely to recur.

The beating and threats suffered by Gjetani are similar to those

endured in Singh v. Barr, No. 19-60150, 2020 WL 3407167 (5th Cir. June 19,

2020) (per curiam). Singh, a member of the minority Mann Party in India,

was beaten twice—including once to the point of losing consciousness—and

received death threats by members of the rival Badal Party. See Singh, 2020

WL 3407167, at *1. But we concluded that Singh had not demonstrated he

suffered the requisite level of harm to constitute persecution. See also Singh

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No. 18-60827

v. Whitaker, 751 F. App’x 565, 567 (5th Cir. 2019) (per curiam) (no

persecution where a member of a minority political party was beaten twice);

Gill v. Barr, 765 F. App’x 225, 225 (9th Cir. 2019) (per curiam) (no

persecution where a member of a minority political party was beaten and

threatened with death).

Lastly, we have often taken note of when, as here, an alien has endured

a threat or assault but has nevertheless chosen to stay in his home country for

a period of time—because the choice to stay tends to weaken the claim of

persecution. See, e.g., Panmesri v. Holder, 313 F. App’x 723, 726 (5th Cir.

2009) (per curiam), Diaz Flores v. Ashcroft, 104 F. App’x 418, 419 (5th Cir.

2004) (per curiam); Hafiz v. Ashcroft, 69 F. App’x 659 (Table) (5th Cir.

2003) (per curiam). Gjetani remained in Albania until December 20, 2017.

He has offered no explanation as to why he elected to stay in Albania for

almost half a year after the last instance of threatening behavior, or how he

was persecuted when no further threats or attacks took place during that

time.

We conclude that the BIA did not err in finding that Gjetani’s injuries

did not amount to past persecution.

C.

To establish a well-founded fear of future persecution, an alien must

demonstrate “a subjective fear of persecution, and that fear must be

objectively reasonable.” Eduard v. Ashcroft, 379 F.3d 182, 189 (5th Cir. 2004)

(citation omitted). The IJ and BIA reasonably concluded that Gjetani failed

to show that his subjective fear of persecution on his return to Albania was

objectively reasonable. They properly considered the fact that Gjetani’s

family has not received threats or suffered any physical harm despite

remaining in Albania. See id. at 193 (noting “the reasonableness of an alien’s

fear of persecution is reduced when his family remains in his native country

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No. 18-60827

unharmed for a long period of time after his departure”). Further, the IJ and

BIA found no evidence in the record to suggest that anyone had been looking

for Gjetani in Albania since the election, much less that he was being targeted

in the future.

Lastly, Gjetani complains that the IJ and BIA did not consider his

expert affidavit stating that he would suffer continued persecution if he

remained in Albania. The record belies that claim. It establishes that the IJ

gave meaningful consideration to the affidavit—not least by explicitly

referencing it in his evidentiary report. See Abdel-Masieh v. INS, 73 F.3d 579,

585 (5th Cir. 1996) (“We do not require that the BIA address evidentiary

minutiae or write any lengthy exegesis.”).

D.

Gjetani has failed to show error by the IJ and BIA in denying his

request for asylum. Because he did not qualify for asylum, Gjetani necessarily

did not meet the higher threshold for establishing eligibility for withholding

of removal. See Eduard, 379 F.3d at 186 n.2.

***

Our decision today does not diminish the injury that Gjetani and many

other foreign nationals too often suffer in their home countries simply for

holding unpopular political beliefs. Perhaps it is little surprise then that so

many of them seek refuge in America—a country built on the idea that

political disagreements are to be celebrated, rather than repressed. But how

our Nation deals with refugees is a political decision for the political branches

to make. And Congress has gone out of its way to circumscribe the role of

the federal courts in this arena. Accordingly, we must deny the petition in

part and dismiss in part.

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No. 18-60827

James L. Dennis, Circuit Judge, dissenting.

I must respectfully disagree with the majority’s holding. It would be

one thing if the majority simply concluded that the treatment that Xhino

Gjetani endured was not severe enough to constitute “persecution,”

although I would disagree with that assessment. However, the majority also

errs by characterizing the Board of Immigration Appeals’s (BIA’s)

determination that the undisputed facts of this case amount to “persecution”

within the meaning of 8 U.S.C. § 1101(a)(42)(A) as a “factual conclusion”

that is subject to only the deferential “substantial evidence” standard of

review. Majority at 4.

To be sure, the BIA’s determination that an alien has failed to

establish persecution on account of a protected ground can be based on

factual determinations for which the substantial evidence standard applies.

For example, in INS v. Elias-Zacarias, the Supreme Court applied the

substantial evidence standard to the question of whether the alien had

established that any persecution he would face was because of his political

opinion. See 502 U.S. 478, 482 (1992) (“Elias–Zacarias still has to establish

that the record also compels the conclusion that he has a ‘well-founded fear’

that the guerrillas will persecute him because of that political opinion, rather

than because of his refusal to fight with them.” (emphasis in original)). This

is because what motivates a group or individual—including a persecutor—is

a classic example of a question of fact. See, e.g., Casarez v. Burlington

N./Santa Fe Co., 201 F.3d 383, 384 (5th Cir. 2000) (“It is clear that Casarez

has met his burden . . . by creating a factual question as to what actually

motivated Burlington to terminate his employment.”); Trevino v. Ramos, 197

F.3d 777, 781 (5th Cir. 1999) (“The primary issue in this case is the factual

question of motivation[.]”); Nationwide Amusements, Inc. v. Nattin, 452 F.2d

651, 652 n.1 (5th Cir. 1971) (“The factual sufficiency of the cause of action

turns on the motivation of the city officials, a fact question that can only be

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determined in the district court.”). Similarly, substantial evidence review

would apply to the question of past persecution when the BIA’s

determination was based on a finding that the alien’s account was not

credible; this, too, is a question of fact—i.e., whether the alien was telling the

truth or whether the events the alien recounted actually occurred. See, e.g.,

Wang v. Holder, 569 F.3d 531, 537 (5th Cir. 2009) (applying substantial

evidence standard to determination that alien’s account of events was not

credible).

But none of these factual questions are in play in this case, where the

Immigration Judge (IJ) and BIA found Gjetani’s account of events credible.

Instead, the IJ and BIA’s determination was based on the purely legal

conclusion that the undisputed facts were not “persecution” within the

meaning of 8 U.S.C. § 1101(a)(42)(A). Determining the meaning of

“persecution” as it appears in the statute and applying that standard to

undisputed facts is a basic matter of statutory interpretation, which is a

“quintessential question of law.” Stephens ex rel. R.E. v. Astrue, 565 F.3d 131,

137 (4th Cir. 2009); accord Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1068

(2020).1 The BIA’s interpretation is therefore due deference, if at all, only

1

The Majority contends that the rule of orderliness obliges us to apply the

substantial evidence standard because panels of this court have in the past employed the

“substantial evidence” language when considering the question of persecution where the

facts were undisputed. However, any duty we had to follow these precedents was

abrogated by the Supreme Court’s recent affirmance of the basic principle that “the

application of a legal standard to undisputed or established facts” is a “question of law”

within the meaning of the Immigration and Nationality Act. Guerrero-Lasprilla, 140 S. Ct.

at 1068. Although this occurred in the context of a case examining a jurisdictional bar in

another portion of the Immigration and Nationality Act, we have long recognized that “we

review . . . questions of law de novo,” including when reviewing the BIA’s conclusions

regarding persecution. Rui Yang v. Holder, 664 F.3d 580, 584 (5th Cir. 2011) (citing Zhu v.

Gonzales, 493 F.3d 588, 594 (5th Cir. 2007)); accord, e.g., Shaikh v. Holder, 588 F.3d 861,

863 (5th Cir. 2009); Lopez–Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001); Eduard v.

Ashcroft, 379 F.3d 182, 186 (5th Cir. 2004) (citing Mikhael v. INS, 115 F.3d 299, 305 (5th

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to the extent called for under the familiar Chevron framework. See Chevron,

U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 841(1984) (holding

that courts should defer to an agency’s reasonable interpretation of

ambiguous statutes).

Neither the Government nor the majority argues that the term

“persecution” as it appears in 8 U.S.C. § 1101(a)(42)(A) is the type of

“ambiguous statutory term” for which “the BIA should be accorded Chevron

deference as it gives [the word] ‘concrete meaning through a process of case-

by-case adjudication.’”2 I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999)

(quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 448–449 (1987)). In the

absence of such an argument, I would reaffirm that, where the facts are

undisputed, “[w]hether a prior assault rises to the level of past-persecution

is a question of law that we review de novo.” Morales v. Sessions, 860 F.3d

812, 816 (5th Cir. 2017).

Upon de novo review, I believe Gjetani has made a sufficient showing

to establish past persecution under our precedents. It is undisputed that

Gjetani was subject to repeated in-person death threats and an armed attack

that was explicitly tied to his political affiliation. The first death threat was

accompanied by the theft of his political paraphernalia. On the second

occasion, Gjetani and a family member were severely beaten with a belt and

stabbed with sharp metal objects, resulting in a severe enough injury that

Cir.1997)); etc. Guerrero-Lasprilla’s holding that the BIA’s application of a legal standard

to undisputed facts is a question of law therefore unequivocally settles the question of what

standard of review we should apply to such conclusions.

2

Were that the case, we would examine the BIA’s interpretation to decide if it is

unreasonable or clearly contrary to congressional intent, as well as whether its application

was consistent with the agency’s past precedents. See Cardoza-Fonseca, 480 U.S. at 448

(holding that the phrase “well-founded fear,” which is also found in 8 U.S.C. §

1101(a)(42)(A), is ambiguous).

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Gjetani required stitches. And on the third and fourth occasions, which

occurred on the same day, the death threats were expressly tied to Gjetani’s

vote for the political party of his choice. Gjetani repeatedly attempted to seek

protection from law enforcement, but each time the police refused, citing his

political affiliation.

We have indeed stated that persecution “requires more than a few

isolated incidents of verbal harassment or intimidation, unaccompanied by

any physical punishment, infliction of harm, or significant deprivation of

liberty.” Eduard v. Ashcroft, 379 F.3d 182, 187 n.4 (5th Cir. 2004) (citation

omitted). But Gjetani’s treatment was not isolated or unaccompanied by

physical punishment, and it was more severe than what this court has

identified as persecution in past cases. For instance, in Tamara-Gomez v.

Gonzales, 447 F.3d 343, 348 (5th Cir. 2006), which the majority discusses, we

found that the IJ had erred in determining that the petitioner had not

established persecution based on repeated credible death threats and

vandalism to his home. Unlike the present case, the petitioner had not

suffered physical harm that would corroborate the death threats. See id.

Gjetani has indisputably suffered greater harm to his person than the

petitioner in Tamara-Gomez, and the treatment should likewise qualify as

persecution.

Because a rebuttable presumption of future persecution is created

when a petitioner establishes past persecution, see 8 U.S.C. § 208.13(b)(1),

the remainder of the BIA’s reasoning cannot stand. Accordingly, I

respectfully dissent.

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