Johana Cece v. Eric Holder, Jr.

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-1989

JOHANA C ECE,

Petitioner,

v.

E RIC H. H OLDER, JR., Attorney General

of the United States,

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals.

No. A096 158 857

A RGUED O CTOBER 5, 2011—D ECIDED F EBRUARY 6, 2012

Before E ASTERBROOK, Chief Judge, and M ANION and

R OVNER, Circuit Judges.

M ANION , Circuit Judge. Johana Cece, a citizen of

Albania, petitions for review of a decision from the

Board of Immigration Appeals upholding the denial of

her application for asylum because she had not

established membership in a particular social group. Cece

argues on appeal that young Albanian women in danger

2 No. 11-1989

of being trafficked for prostitution constitute a social

group. Her proposed group, however, is defined solely

by the persecution feared by its members and lacks the

type of common, immutable characteristics otherwise

required of a particular social group. Moreover, sub-

stantial evidence supports the Board’s conclusion that

Cece has not established a well-founded fear of persecu-

tion if she returns to Albania. Accordingly, we deny

the petition for review.

Cece, using a fake Italian passport, came to the United

States in 2002 when she was 23 years old. Less than a

year later, she applied for asylum and withholding of

removal, asserting that she feared returning to Albania

because she believed that, as a young woman living

alone, she would be kidnapped and forced to join a pros-

titution ring. She also contended that the police in

Albania would not protect her because she is an

Orthodox Christian and supports the Democratic party,

which was not in power at that time.

At a hearing before an immigration judge, Cece elabo-

rated on the events that precipitated her flight from

Albania. In 2001, “Reqi,” the leader of a Muslim

gang known for forcing women into prostitution,

began harassing her. He invited her out for drinks,

offered her rides in his car, and stalked her throughout

the city. Cece ignored Reqi whenever he approached

her, but once he followed her into a cosmetics store

and pinned her against a wall for 20 minutes, demanding

to know why she declined his advances. After Reqi left

the store, Cece reported the incident to the police, who

No. 11-1989 3

took no action. Two days later, someone shattered a

window in Cece’s apartment with a rock.

Fearing that Reqi would kidnap her, Cece moved

120 miles north to live with her sister and teach in Tirana.

There she felt safe until the following year, when her

sister moved to the United States. Living alone once

more, Cece explained that she feared that Reqi or

another gang member would kidnap her and force her

into prostitution, so she left the country. Using her fake

Italian passport, she entered the United States under

the Visa Waiver Program.1 See 8 C.F.R. § 217.2.

Dr. Bernd Fischer, a professor of Balkan history at

Indiana University, testified about the pervasive sex

trafficking in Albania. He explained that the kidnapping

of women for purposes of prostitution remains “a

very serious problem,” and that police often protect the

responsible gangs. Reports issued from the U.S. Depart-

ment of State in 2004 corroborate his representations.

Gang members target women between the ages of 16

and 26, Dr. Fischer continued, and a single woman

living alone would be particularly vulnerable to

trafficking, especially if she previously had been

pursued by a gang member. He also opined that, given

the nationwide prevalence of trafficking, Cece would be

unable to relocate safely within Albania.

The IJ granted Cece asylum in 2006. He concluded

that she belonged to a particular social group comprised

1

Italy, but not Albania, is a participant in the program. 8 C.F.R.

§ 217.2(a).

4 No. 11-1989

of “young women who are targeted for prostitution

by traffickers in Albania,” and that the Albanian gov-

ernment was unwilling or unable to protect women such

as her. But that decision was vacated by the Board,

which rejected the notion that young Albanian women

targeted for trafficking constitute a particular social

group. The Board stated that not only was there no evi-

dence that these women were socially visible in

Albania, but these women also did not share “a nar-

rowing characteristic other than their risk of being perse-

cuted.” The Board added that Cece had not established

fear of future persecution because she showed that

she could avoid any threat by relocating to a different

part of Albania, such as Tirana.

On remand the IJ accepted the Board’s conclusion that

Cece had not identified a cognizable social group. Al-

though the IJ suggested that Cece had established a

subjective and objective fear of future persecution based

on the pervasive kidnapping of young, single women in

Albania, the IJ deferred to the Board’s decision and

denied her application. The Board dismissed Cece’s

appeal, emphasizing that Cece’s proposed group was

“defined in large part by the harm inflicted” on its mem-

bers and did not “exist independently of the traffickers.”

On appeal Cece argues that the Board erred in con-

cluding that members of her proposed social group are

united only by harm suffered in the past. Cece maintains

that young women endangered by trafficking face a

present danger of persecution, and thus form a social

group without “reference to past persecution or prior

problems.”

No. 11-1989 5

Members of a social group, however, must share

a common immutable or fundamental characteristic

beyond the risk, past or present, of harm. See Escobar v.

Holder, 657 F.3d 537, 545-46 (7th Cir. 2011); In re Kasinga,

21 I. & N. Dec. 357, 365-66 (BIA 1996). Thus, even if mem-

bers of Cece’s proposed group fear forced prostitution,

a social group “cannot be defined merely by the

fact of persecution” or “the shared characteristic of

facing danger.” Jonaitiene v. Holder, 660 F.3d 267, 271

(7th Cir. 2011) (concluding that government informants

fearing retaliation do not form social group). And

young Albanian women who fear being trafficked for

prostitution have “little or nothing in common beyond

being targets.” Gatimi v. Holder, 578 F.3d 611, 616 (7th

Cir. 2009). The Sixth Circuit rejected a nearly identical

social group of Albanian women because its members

did not share a narrowing characteristic other than the

risk of being forced into prostitution. Rreshpja v. Gonzales,

420 F.3d 551, 555-56 (6th Cir. 2005). And although we

have recognized that women who fear female genital

mutilation constitute a social group, Cece has not pre-

sented evidence that sex trafficking poses the same par-

ticularized and inescapable threat to all young Albanian

women. See Agbor v. Gonzales, 487 F.3d 499, 502 (7th

Cir. 2007); Hassan v. Gonzales, 484 F.3d 513, 518 (8th Cir.

2007). Nor has she demonstrated that trafficking is

“deeply imbedded” in Albanian culture. See Mohammed

v. Gonzales, 400 F.3d 785, 797-98 (9th Cir. 2005); see

also Sarhan v. Holder, 658 F.3d 649 (7th Cir. 2011) (recog-

nizing women facing honor killings as social group);

see Safaie v. INS, 25 F.3d 636, 640 (8th Cir. 1994), superseded

6 No. 11-1989

by statute on other grounds, Illegal Immigration Reform

and Immigrant Responsibility Act of 1996, Pub. L. No. 104-

208, 110 Stat. 3009 (concluding that Iranian women

subject to harsh restrictions do not form social group).

Even if Albanian women endangered by trafficking

could be labeled as a particular social group, Cece still

would face a number of obstacles. As an initial matter,

she could have been ejected summarily when her fraudu-

lent entry to the United States was discovered. See Bayo

v. Napolitano, 593 F.3d 495, 505-06 (7th Cir. 2010)

(en banc) (discussing appropriate handling of aliens

who enter under false claim of eligibility to participate

in Visa Waiver Program). Moreover, substantial

evidence supports the agency’s conclusion that Cece

has not established an objective fear of future persecu-

tion on account of her membership in the group. She

bases her claim on aggressive advances made by a

gang member coupled with a broken window in her

apartment. Cece reported no specific or ongoing threat,

however, and the past harassment she detailed does not

demonstrate that she would be singled out for persecu-

tion if she returns to Albania. See Nzeve v. Holder, 582

F.3d 678, 684-85 (7th Cir. 2009); Ahmed v. Ashcroft, 348

F.3d 611, 618 (7th Cir. 2003). Nor has Cece met her burden

of showing that she could not relocate safely within

Albania. 8 C.F.R. § 1208.13(b)(3)(i). She relies heavily on

Dr. Fischer’s opinion that “her location would be dis-

covered” if she returned to Albania. But Cece herself

testified that in 2001 she moved to Tirana, where she

worked as a teacher and was not contacted by gang

members. The record thus provides sufficient evidence

No. 11-1989 7

for the Board’s determination that Cece can relocate

safely within Albania. See Oryakhil v. Mukasey, 528 F.3d

993, 998 (7th Cir. 2008); Tendean v. Gonzales, 503 F.3d 8, 11

(1st Cir. 2007).

Accordingly, we D ENY Cece’s petition for review.

R OVNER, Circuit Judge, dissenting. The majority order

rejects Cece’s social group as being one that is defined

solely by the harm its members suffer. Although it is true

that “where a proposed group is defined only by the

characteristic that it is persecuted, it does not qualify as a

‘social group,’ ” the Board of Immigration Appeals has

never required complete independence of any relation-

ship to the persecutor. Escobar v. Holder, 657 F.3d 537,

545 (7th Cir. 2011). Just because all members of a group

suffer persecution, does not mean that this characteristic

is the only one that links them. Id. at 545-46. A social

group “cannot be defined merely by the fact of persecu-

tion” or “solely by the shared characteristic of

facing dangers in retaliation for actions they took

against alleged persecutors.” Jonaitiene v. Holder, 660 F.3d

267, 271-2 (7th Cir. 2011) (emphasis added). But such a

fact does not disqualify an otherwise valid social

group. Escobar, 657 F.3d at 547 (instructing that we

8 No. 11-1989

cannot tease out one component of the group’s charac-

teristics to defeat the definition of social group.) The

Board’s cases instruct that we must look to see whether

the group shares “common characteristics that members

of the group either cannot change, or should not

be required to change because such characteristics are

fundamental to their individual identities.” Id. at 545

(quoting In re Kasinga, 21 I. & N. Dec. 357, 365-66 (BIA

1996)). In this case, although it is true that these women

are linked by the persecution they suffer—being targeted

for prostitution—they are also united by the common

and immutable characteristic of being women between

the ages of sixteen and twenty-seven who meet the

profile of the traffickers.

In Escobar, the social group at issue was defined as

former truckers (or, more generally, those with a special

skill needed by the persecutors) who resisted a powerful

insurgent group and collaborated with authorities.

This court deemed these characteristics unchangeable

because Escobar could not alter his past actions or skills.

In short, although the group may share the common

experience of being targets of persecution, the members

of that group may also share another trait that renders

them a cognizable social group for asylum purposes. That

characteristic might be membership in an extended

family, sexual orientation, a former association with a

controversial group, or membership in a group whose

ideas or practices run counter to the cultural or social

convention of the country. In this latter group we find

women who are opposed to and fear female genital

mutilation, Agbor v. Gonzales, 487 F.3d 499, 502 (7th Cir.

No. 11-1989 9

2007); women who “in accordance with social and

religious norms in Jordan, are accused of being

immoral criminals and, as a consequence, face the

prospect of being killed without any protection from

the Jordanian government,” Sarhan v. Holder, 658 F.3d

649, 654 (7th Cir. 2011); or Christian women in Iran who

do not wish to adhere to the Islamic female dress code,

Yadegar-Sargis v. INS, 297 F.3d 596, 603 (7th Cir. 2002). This

court’s recent opinion in Sarhan lists many other

examples of social groups, included among them

children who escaped after being enslaved by Ugandan

guerillas, women who are sold or forced into marriage

and involuntary servitude, and landowning cattle

farmers targeted by Columbian rebels. Sarhan, 658 F.3d

at 655.

Human trafficking in general and forced prostitution

specifically are serious, devastating, and widespread

problems. This, however, does not mean that every

young person or woman in the world who has a gen-

eralized fear of human trafficking has a viable claim

for asylum in this country. Cece’s claims were very spe-

cific. Because of her family circumstances, she was left

to live alone in a country where it is uncommon for

women to do so. She was, at that time, within the age

range of young women who are seen as good candidates

for forced prostitution. She was targeted by the leader of

a gang known for harassing, threatening, and trafficking

women. That leader stalked and harassed her, at one

point pinning her against a wall and threatening that

he would not be stopped. Cece went to the police, but

they refused to help. Cece’s expert testified that forced

prostitution is pervasive in Albania because of political

10 No. 11-1989

instability, because the police turn a blind eye, and

perhaps most importantly, because the police and gov-

ernment themselves are frequently the ones involved

in trafficking. (See, e.g., R. 224-28). According to the

expert, Albania is also unique among the other Balkan

states and Europe because in many ways it still has not

completed its transition from a closed Communist society

to an open market economy, because the rule of law

has not yet been established, and because of pervasive

political and economic instability. (R. 232). Furthermore,

according to Cece’s own expert, women age out of the

targeted category at a still rather young and predictable

age—twenty-six or twenty-seven—another factor unique

in asylum claims.

Cece maintains that she faces a present danger of perse-

cution, but the testimony of Cece’s own expert is that

the group of threatened women in Albania is com-

posed of women who are between the ages of sixteen

and twenty-six (perhaps twenty-seven) who live alone.

Cece is now in her early thirties and clearly no longer

a member of the group defined by her own expert. Al-

though her expert testified that there are people outside

this age range who are being kidnaped and trafficked,

he did not explore in any detail the factors that might

make someone outside of this group a target. (R. 255).

Cece’s circumstances have changed in such a way that

we must now evaluate whether her life or freedom

would still be threatened in Albania. See 8 C.F.R.

§ 1208.16(b)(i)(A).

The majority also claims that the record provides suf-

ficient evidence for the Board’s determination that Cece

No. 11-1989 11

can relocate safely within Albania. The Board, however,

failed to take account of the fact that Cece relocated

to Tirana without incident, but only when she lived with

her sister there—a sister who now lives in the United

States. (R. 9, 330). See also (R. 145, 170-71, 173). Cece’s

claim is that women who live alone, without the protec-

tion of family, are subject to human trafficking.

On remand, the immigration judge noted that the

Board’s conclusion that Cece could relocate within

Albania was inconsistent and not supported by the

only evidence on the matter, but that he was forced to

follow the Board’s conclusion nevertheless. (R. 118-20).

I would remand to the immigration judge to determine

whether Cece has a viable claim that she will remain

a target of forced prostitution if she returns to Alba-

nia. Therefore, I respectfully dissent.

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