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Haxhiu v. Mukasey

March 19, 2008

SHKELQIM HAXHIU, PETITIONER,
v.
MICHAEL B. MUKASEY, ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT.



Petition for Review of an Order of the Board of Immigration Appeals. No. A97-638-589.

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

SUBMITTED JANUARY 30, 2008*fn1

Before FLAUM, MANION, and EVANS, Circuit Judges.

Shkelqim Haxhiu, a native and citizen of Albania, applied for asylum, withholding of removal, and relief under the Convention against Torture (CAT), alleging that he had been persecuted on account of his political opposition to government corruption.*fn2 The Immigration Judge denied the requested relief, and the Board of Immigration Appeals summarily affirmed the IJ's decision. Because substantial evidence does not support the IJ's findings that Haxhiu's persecution was not on account of his political opinion and that state actors were not responsible for the harm alleged, we grant his petition for review, vacate the order of removal, and remand for further proceedings.

Background

The facts of this case are undisputed because the IJ credited Haxhiu's testimony in full. See Hernandez-Baena v. Gonzales, 417 F.3d 720, 721 (7th Cir. 2005). Haxhiu is a 35-year veteran of the Albanian Army, where he attained the rank of colonel. In February 1999 Haxhiu was assigned to supervise military recruiting operations in Tirana, Albania, a position that included among its duties the eradication of widespread corruption. Haxhiu notes that chief among his accomplishments was a reduction in the theft of payments to excuse military service. According to Haxhiu, Albanian citizens can, by law, buy their way out of compulsory military service at a cost of approximately $2,500 to $3,000, and these payments, often made in cash, were finding their way in to the pockets of individual military and government officials. Haxhiu implemented an accounting system that ensured that each payment would be routed to a bank, thus preventing any further abuse, although angering the beneficiaries of the old system.

In another episode in his fight against corruption, Haxhiu protested the sale of a military building to private purchasers in 2000. Haxhiu testified that a group of corrupt Ministry of Defense officials conspired to reduce the sale price of the building from its true market value of approximately $1,000,000 to a mere $20,000 in exchange for remuneration in a later sale. These same individuals solicited Haxhiu's cooperation in their scheme-offering him an apartment as a bribe-but Haxhiu refused and exposed their efforts in a letter to the Defense Minister at that time. The building was never sold despite repeated attempts; whether Haxhiu's efforts made the difference is unclear, but his resistance did provoke immediate threats of termination from a director in the Ministry of Defense. Haxhiu also received phone calls from unknown individuals who threatened to kidnap his children unless he kept quiet about the sale of the building. These threats intensified after Ismail Lleshi, a particularly corrupt individual according to Haxhiu, became the Minister of Defense in 2000 and continued to push for the sale.*fn3

Ultimately, Haxhiu was fired because of his efforts to resist government corruption. Although Haxhiu's job was admittedly to eliminate certain forms of corruption, his newsuperiors under Lleshi, themselves corrupt, were unhappy with his efforts. Upon termination in 2001, a group of Defense Ministry officials told Haxhiu, "This is just the beginning. We can do to you whatever we want because you are not in uniform now. You will see our power."

Unsurprisingly, Haxhiu's situation deteriorated further after he was fired. First, he challenged his termination in a letter to Albania's Supreme Court, although he did not file a formal complaint or enlist the help of an attorney, which perhaps explains why he did not receive a response. "[A]ggravated by this politician [Lleshi] and by this kind of politics," Haxhiu next approached a newspaper editor and a radio journalist with an offer to assist them in exposing corruption. But before anyone could publish or broadcast his accounts, Haxhiu withdrew his offer because of new threats against him and his family. For example, Haxhiu received word from Lleshi that if he talked to journalists, Haxhiu would end up "worse than [G]eneral Aqif Cikalleshi," a former military official who narrowly escaped an assassination attempt and had to flee to Italy after speaking to journalists on television.

Haxhiu responded to these threats by reiterating that Lleshi was a source of shame for Albanians and that Haxhiu was determined to expose various ongoing abuses to the press. Haxhiu reconsidered his position, though, after the threats turned to attacks on his family: On February 7, 2002, strangers beat his son badly and told him, "Tell your father to shut up his mouth or we will shut it for him for ever." And in May 2002 a group of men tried to kidnap Haxhiu's daughter. Fearing for the safety of his family, Haxhiu sent his son to England and fled to the United States in August 2002, where his wife and daughter joined him one month later.

After three months in the United States, Haxhiu returned to Albania alone to see "if things had changed." But shortly after his return, Haxhiu was attacked while driving home with a friend from a nearby restaurant. Two gunmen cut off Haxhiu's car, got out of their vehicle, and began shooting at Haxhiu, shattering the windshield. Haxhiu and his friend were not hurt, though, and the gunmen ran away after firing all of their bullets. Still, the experience confirmed Haxhiu's fears about his homeland, and he decided to settle permanently in the United States in January 2003. Six months after re-entering the United States, Haxhiu sought asylum, withholding of removal, and CAT protection.

Following an immigration hearing in Chicago, Illinois, the IJ denied Haxhiu's applications. After determining that Haxhiu's testimony was credible and consistent with the record, the IJ turned to the more difficult question of whether the evidence demonstrated that Haxhiu had suffered persecution on account of a protected ground. The IJ began by noting that political agitation against state corruption can support an asylum claim, but to qualify Haxhiu needed to show that he took "active steps to fight [systemic] corruption in Albania" outside of his official duties. The IJ observed that Haxhiu's activities lacked a public aspect; his political activities were confined to the performance of his military function-his job, after all, was to stamp out corruption in the local office. Furthermore, the IJ determined that Haxhiu had not shown that the corruption of which he complained encompassed the government at large, as opposed to a few rogue individuals whose exposure could not be considered an expression of political opinion. For these reasons, the IJ concluded that the harm suffered by Haxhiu was not on account of his political opinion. Even if there was a connection between his harm and his political opinion, the IJ continued, Haxhiu could not demonstrate that the Albanian government was responsible for his treatment, either directly or by failing to protect him.

On December 15, 2006, the BIA adopted and affirmed, without opinion, the IJ's decision, which became the ...


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