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Gjerazi v. Gonzales

January 30, 2006

ARQILE GJERAZI, KLARITA GJERAZI, ALBA GJERAZI, AND JUSTIN GJERAZI, PETITIONERS,
v.
ALBERTO GONZALES,*FN1 RESPONDENT.



Petition for Review of an Order of the Board of Immigration Appeals. No. A77-835-484.

The opinion of the court was delivered by: Coffey, Circuit Judge.

ARGUED APRIL 14, 2005

Before COFFEY, RIPPLE, and KANNE, Circuit Judges.

Arqile Gjerazi ("Gjerazi"), his wife, Klarita, and their two children, Alba and Justin, are citizens of Albania. In March of 1999, the Gjerazi family fled Albania for the United States. The following November, Gjerazi filed an application for asylum on behalf of himself and his family with the Immigration and Naturalization Service ("INS"),*fn2 seeking political asylum, withholding of removal, protection under the Convention Against Torture, and, in the alternative, voluntary departure.*fn3 The claims of Gjerazi's wife and children are derivative of Gjerazi's, and thus we focus on his petition and claims. Although the Immigration Judge ("IJ") found Gjerazi's testimony to be credible, he determined that Gjerazi had failed to establish that his persecution was politically motivated. The IJ denied Gjerazi's application for asylum as well as his request for voluntary departure and ordered the Gjerazi family to return to Albania. The Board of Immigration Appeals ("BIA") adopted and affirmed the IJ's decision in a one-paragraph opinion. We grant the Gjerazi family's petition for review and remand this case for further proceedings, holding that the IJ and BIA's conclusions are not supported in the record with substantial evidence.

I. Background

A. The Gjerazi Family's Life in Albania

Gjerazi, his wife, and their two children are natives of Albania. Gjerazi testified that he had been an active member of the Democratic Party, the largest opposition party to the Socialist Party in Albania, since 1992. In November of 1993, Gjerazi was elected to the position of "secretary" for the Democratic Party in the Albanian city of Fier, a position he held until July of 1997. He testified that his duties included contacting Albanians to promote the ideology of the Democratic Party as well as maintaining quotas and collecting membership dues for the Fier region. He also assisted in preparations for the 1997 elections, including sponsoring and organizing Democratic Party meetings, and was selected to represent the party at a polling station in Fier.

Not only was Gjerazi an active member of the Democratic Party, but previous generations of his family had similarly taken active roles in opposing the Socialist Party. In his application for asylum, he stated that his political activism as well as that of past generations of his family resulted in frequent persecution by Albanian authorities. For example, during his asylum hearing, he testified that his uncle and his mother's uncle had been imprisoned by the Communist Party for twenty-four and eighteen years, respectively. As a result of his family's history of political activism, when he was a child, the Socialist government confiscated land and a store that had been in his family for years. In 1990, the property was returned to Gjerazi's mother, and, upon her death in 1992, Gjerazi became the owner. Despite these past problems, Gjerazi testified that once the property was returned to his family, he made a "good living" as a store owner. He drew approximately $3,000 in profit each month and was considered "quite wealthy" by Albanian standards.

Despite his status in Albania as a successful business owner, like past generations of his family, Gjerazi's political activism precipitated several unfortunate events. On June 5, 1997, while en route to a party meeting in Tirana, Albania's capital city, the taxi transporting Gjerazi was stopped by two masked men who forced him out of the vehicle and assaulted him, beating him with the butt of a gun and kicking him until he lost consciousness. Gjerazi testified that as they beat him, the men stated that he would not be going "to meet the celebration in Tirana." He did not continue on to Tirana or seek medical attention. Upon returning to his home that evening, he received an anonymous telephone call during which the caller threatened him with "very bad consequences" if he did not adjust the election returns in order to ensure the success of the Socialist Party. Gjerazi testified that because he was the person responsible for the polling station in Fier, he "figured that [the callers] wanted [him] to manipulate the results and the scores" in order that the Socialist Party would prevail. Although he reported the incident to Democratic Party officials as well as to the police, no action was taken to locate the assailants or to determine who made the call and the ensuing threat.

Three days after he was attacked on the way to Tirana, a second major incident befell the Gjerazi family. On June 8, 1997, Gjerazi's two-year-old son, Justin, was kidnaped while playing in his own backyard. Gjerazi claimed that two officials from the Socialist Party, Argon Mecallin and Agim Idrizi, were responsible for the kidnaping. He testified that, approximately one half hour after the child's abduction, the kidnapers contacted his father-in-law and conditioned the child's release on the Socialist Party winning the vote in Fier. According to Gjerazi, his father-in-law told the kidnapers that Gjerazi was not the "main decision-maker" at the polling station and that he could not guarantee the results they wanted. Gjerazi immediately contacted the police, controlled at that time by the Democratic Party. While the police were sympathetic, they were unable to secure his son's release, so Gjerazi enlisted the aid of his wife's uncle.*fn4 The uncle located the child and was able to negotiate the boy's release in exchange for a ransom of $5,000. A few weeks after Justin's kidnaping, the Socialist Party won the election, including the local election in Fier.

On July 2, 1997, approximately one month after his son's abduction and a few days after the Socialist Party regained control of Albania, Gjerazi's wife, Klarita, was accosted and beaten by two masked men. Klarita testified that when she arrived home, the men struck her from behind, entered the home, and began calling out for Gjerazi. When they discovered he was not in the apartment, they beat her into a state of unconsciousness. After the attack, Klarita spent ten days confined in a hospital. Shortly after her release from the hospital, Gjerazi resigned from his position as a secretary of the Democratic Party and moved his family to Vos Kopoje, a town located in a remote mountainous area in Southern Albania. Although Gjerazi continued to live in Fier, he traveled to Vos Kopeje regularly, keeping a "low profile" while deciding what to do with his family's store, land, and personal belongings.

Gjerazi's problems flared up again in April of 1998, when he attended a monthly Democratic Party meeting. After returning from the meeting, Gjerazi's apartment was set on fire while he was in the building. Although he escaped, his unit was completely destroyed. After the fire, Gjerazi moved to Vos Kopoje with his family. In September of 1998, he returned to Fier to attend a peaceful demonstration in protest of the assassination of Azem Hajdari, a Democratic Party official. Shortly after the demonstration, a warrant was issued for Gjerazi's arrest, alleging that he had attacked the main offices of the police station. Although he received notice of the arrest summons, instead of reporting to the police, he began making arrangements to leave Albania.

Upon payment of $15,000, Gjerazi arranged for Slovenian passports and transportation, and, on March 23, 1999, he and his family fled Albania. After a stop in Italy,*fn5 they flew to the United States. Gjerazi testified that when he and his family arrived in the United States, he destroyed their Slovenian passports as directed by the individuals who provided the passports. In November, the Gjerazis filed for asylum.

According to Gjerazi, when he left Albania, he did not know that he would eventually land in the United States and apply for asylum. During the hearing, he explained that he feared returning to Albania with his family because the Socialist Party was still in power. He testified that his family's persecution in Albania was motivated by his membership in the Democratic Party and that he believed current conditions in Albania to be the same as they were in 1997. He stated that if he and his family were forced to return, he was concerned that there could be "very severe consequences" for them, and he speculated that he would be arrested or even killed.

During the asylum hearing, Gjerazi's wife and daughter also testified about their tumultuous lives in Albania and Gjerazi's involvement with the Democratic Party. Gjerazi's wife testified about the beatings she and her husband endured as well as her son's abduction. She corroborated her husband's testimony about his active participation in the Democratic Party and stated that she feared for their lives should they be forced to return to Albania. The IJ also requested that Gjerazi's ten-year-old daughter, Alba, testify. Although she recalled her brother's kidnaping, not surprisingly, she was unable to add much to the record, including anything about her father's political activities.*fn6

In addition to the testimony presented by the Gjerazi family, Dhimo Jano, a citizen of Albania who left the country in October of 1997, testified on their behalf. Jano knew and socialized with the Gjerazi family in Albania. Jano confirmed Gjerazi's membership in the Democratic Party and his position as a secretary within the party. He also described an incident that occurred in Albania in 1997 when he and Gjerazi were having coffee. He stated that he observed a member of the Socialist Party approach Gjerazi, point at him, and proclaim, "[T]his is the ...


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