IN THE UNITED STATES COURT OF APPEALS FOR THE

FIRST CIRCUIT

No. 10 – 1109

Mark PRECETAJ Peti t ioner

vs.

Eric H. Holder, Jr.

ATTORNEY GENERAL Respondent

Peti t ion for Review of an

Immigration Matter from the Board of Immigration Appeals

Brief for Peti t ioner

Jeffrey B. Rubin, Esq. Law Offices of Jeffrey R. Rubin

Attorney for Peti t ioner One Center Plaza, Suite 230

Boston, MA 02203 617-367-0077

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Table of Contents

Table of Authorities ..................................................................................................... ii Jurisdictional ............................................................................................................... 1 Statement of the Issues ................................................................................................ 1 Statement of the Case .................................................................................................. 1 Statement of Facts ........................................................................................................ 3 Summary of the Argument .......................................................................................... 9 Standard of Review .................................................................................................... 10 Argument ................................................................................................................... 10 I. Mr. and Ms. Precetaj had suffered past persecution on account of his political opinion at the hands of agents of the Albanian government ..................................... 12 II. Mr. and Mrs. Precetaj had established past persecution creating a presumption of future persecution which remained unrebutted .................................................... 14 III. The Immigration Judge and the Board of Immigration Appeals Erred by Failing to consider or address Mr. and Mrs. Precetaj’s eligibility for humanitarian asylum . 16

Conclusion ................................................................................................................. 17 Certificate of Service .................................................................................................. 18 Certificate of Compliance .......................................................................................... 18

Table of Authorit ies

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Federal Cases Aguilar-Solis v. INS, 168 F.3d 565 (1st Cir. 1999).................................................11 Bocova v. Gonzales, 12 F.3d 257 (1st Cir. 2005)....................................................11 Arriaga-Barrientos v. INS, 937 F.2d 411 (9th Cir.1991)........................................11 Jorgji v. Mukasey, 514 F.3d 53 (1st Cir. 2008).......................................................11 Ravindran v. INS, 976 F.2d 754 (1st Cir. 1992)......................................................11 Tota v. Gonzales, 457 F3d 161 (1st Cir. 2006)..................................................13, 14 Nikijuluw v. Gonzales, 427 F.3d 115 (1st Cir. 2005)...............................................11 Zhang v. Ashcroft, 388 F.3d 713 (9th Cir. 2004)..............................................................11

Administrat ive Decisions Matter of Acosta, 19 I&N Dec. 211 (BIA 1985).....................................................10 Matter of A-T-, 24 I&N Dec. 617 (A.G. 2008)........................................................13 Matter of Chen, 20 I&N Dec. 16, 21 (BIA 1979)................................................2, 14 Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987).......................................12, 15 Federal Statutes 8 U.S.C. §1252.....................................................................................................1, 10 Code of Federal Regulat ions

8 C.F.R. §208.13..................................................................................................2, 12 8 C.F.R. §208.16......................................................................................................12 8 C.F.R. §1208.13....................................................................................................14 Jurisdict ional Statement

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This matter comes before the United States Court of Appeals pursuant to a

Petition for Review of a final removal order entered by the Board of Immigration

Appeals on October 18, 2005. The Petition for Review of this case was timely filed

with the Clerk of this Court on September 14, 2009, within the time period

prescribed by 8 U.S.C. §1252(b)(1). This Court has jurisdiction over this matter as

provided by 8 U.S.C. §1252(b)(2).

Statement of the Issues

Whether the Immigration Judge Erred In Denying Mr. and Ms. Precetaj’s

applications for Asylum, Withholding and Deferral where there was ample evidence

of past persecution and of their eligibility for Humanitarian Asylum.

Statement of the Case

Applicant Mark Precetaj (Mr. Precetaj) and Respondent Nilda Precetaj (Ms.

Precetaj), by and through undersigned counsel, respectfully submits this Brief in

Support of their Appeal of a Decision of the Immigration Judge and the Board of

Immigration Appeals denying their application for Asylum, Withholding of Removal,

and Deferral of Removal under the Convention Against Torture (CAT).

The Immigration Judge and the Board of Immigration Appeals erred in

finding no past persecution in this case. The Immigration further erred in holding

that Mr. and Ms. Precetaj's asylum application would be denied because he had not

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shown past persecution. Although an asylum seeker is not required to show past

persecution in order to establish status as a refugee, Mr. Precetaj did in fact provide

ample evidence of past persecution on the basis of his political opinion, including

evidence of assault and battery and repeated death threats by agents of the Albania

government against the Precetajs, the kidnaping and vicious beating of their son, the

kidnaping and rape of their daughter, and other acts committed by agents of the

Albanian government with the express purpose of intimidating and persecuting Mr.

and Ms. Precetaj. The government failed to rebut Mr. and Ms. Precetaj's evidence of

past persecution, and failed to rebut the presumption that his fear of future

persecution was reasonable.

The Immigration Judge and the Board of Immigration Appeals further erred

in holding that circumstances in Albania have changed to the extent that the

respondent would no longer have a well-founded fear of future persecution, as the

government failed to establish by a preponderance of the evidence that conditions in

Albania have changed to such an extent that Mr. Precetaj and his wife would no

longer have a well-founded fear of persecution.

Finally, the Immigration Judge and the Board of Immigration Appeals erred in

failing to consider or respond in any way to the argument that Mr. Precetaj had made

out a case for humanitarian asylum under the Board of Immigration Appeals’

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precedent decision, Matter of Chen, 20 I&N Dec. 16, 21 (BIA 1979), and under 8

C.F.R. §208.13(b)(1)(iii)(A). The Immigration Judge's failure to even acknowledge in

his Oral Decision that such an argument had been made, much less to make findings

of fact and law consistent with this argument, was clear error. The case should be

remanded to the Immigration Judge for findings of fact and law on the issue of

whether Mr. Precetaj is eligible for humanitarian asylum.

The Respondents therefore ask this Court to overturn the decision of the

Board of Immigration Appeals and remand the case for findings of fact and law

consistent with the law.

Statement of Facts 1

1 Citations to the Certified Administrative Record appear as “A.R.”

Mr. Precetaj is a native and citizen of Albania. Mr. Precetaj testified credibly

that in 1991, he spotted two state agents at a demonstration organized by students

from the Democratic Party. A.R. at 131. He recognized these agents because he had

seen them many times while he was working as the chauffeur to the head of the

Albanian Supreme Court, Aranit Cala. A.R. at 131-32. Mr. Precetaj reported this to

the leader of the demonstration. Id. Soon after he reported the presence of the two

government agents at the demonstration, Mr. Precetaj began receiving threats. Id.

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Mr. Precetaj testified that he believed these threats were also related to his

knowledge of secret crimes by people in power, which he was aware of through his

job at the Albanian Supreme Court, where he had worked for 10 years. A.R. at 131,

134. The Socialist ruling party was well aware that Mr. Precetaj was pro-Democratic.

A.R. at 138.

At first, Mr. Precetaj received only telephone threats. A.R. at 142. The callers

told him to keep his mouth shut, and that if he revealed certain names or persons, he

would pay a very high price. Id. He believed that the callers were threatening to do

something against him, and that they might possibly kill him. A.R. at 134. But soon

after, he was also physically confronted in front of his home as he was closing his car

door. See A.R. at 132. These threats worried Mr. Precetaj enough to cause him to

quit his job in May of 1991. A.R. at 132. Mr. Precetaj continued to help the

Democratic Party and participating in rallies after that. A.R. at 138.

In February of 1993, three persons wearing masks confronted Mr. Precetaj as

he was parking his car. A.R. at 138-39. They insulted Mr. Precetaj, and then began

hitting and beating him. A.R. at 139. They called him a filthy Democrat and a

traitor. A.R. at 140. As they beat him, they warned him to keep his mouth shut, and

ordered him not to reveal any of the secrets of the person that he had been working

for, or to tell the names of other persons. A.R. at 139-40. They threatened his with

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different and harsher consequences the next time. A.R. at 139. Mr. Precetaj's

masked assailants hit his head so hard he felt dizzy, gave him a black eye, cut his lips,

and left his whole body black and blue. A.R. at 140. He was afraid to go to a doctor,

so his family took care of him at home, treating him with ice and alcohol compresses.

A.R. at 140-41. He also used traditional remedies like onions and salt. He didn't call

the police, because the police were all infiltrated with Socialists. A.R. at 141.

In June of 1997, Mr. Precetaj was stopped by a number of people outside his

home who told him that his days were counted (numbered). A.R. at 142. They said

they they were going to win the upcoming election, and after that, “ you are going to

find out all the mistakes you made.” Id. Later that month, the Socialists did win the

election. Id. Mr. Preetaj continued to participate in Democratic Party meetings.

A.R. at 144.

On February 4, 1998, the telephone rang, and Mr. Precetaj's wife handed him

the phone. A.R. at 145. The person on the phone told Mr. Precetaj to look out the

window at his car, which he did. Id. Mr. Precetaj saw his car in flames. Id. The

caller told Mr. Precetaj Happy 5th Anniversary, and to look at his anniversary

present, referring to the 5th anniversary of his beating in 1993. A.R. at 145-47. The

car was destroyed. A.R. at 148.

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Then things took an even darker turn, as Mr. Precetaj's persecutors began

targeting his children as a way to get to him. A.R. at 149. In March of 1999, Mr.

Precetaj's son Marjo was taunted by three people in a car, who asked his father's

name. A.R. at 149. Once they found out that Mr. Precetaj is his father, they called

him "a son of Democrat's guilty one" [sic], and began beating him and tore his shirt.

A.R. at 149-50. Mr. Precetaj's son ran away from his attackers that time without

suffering too much. A.R at 150. The next time, Marjo was not so lucky. In June of

1999, two people, one of whom was one of his earlier attackers, beat Marjo up very

badly. A.R. at 151-53. There was no place on his body that he was not beaten up.

Id. Marjo's attackers told him that his beating was a present for his father. Id.

In October of 1999, the Precetajs’ son Marjo was kidnapped. A.R. at 157.

Marjo told Mr. Precetaj that his kidnappers were police officers wearing hurried

disguises. Id. Marjo's kidnappers beat and insulted him. A.R. at 157-58. After they

were done, they threw him out of the car and told him to tell his father that the

present they had just given, you're going to have them again. A.R. at 158.

Less than a month later, Mr. Precetaj's daughter was kidnapped in front of him

by masked men. A.R. at 158; see also Ex. 10, affidavit of Mark Precetaj. For three

days, Mr. Precetaj didn't know where she was. A.R. at 158-59. Mr. Precetaj

reported her disappearance to the police and to the Democratic Party. A.R at -160-

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61. The police did nothing to help find her. A.R. at 161. Weeks later, three

persons from the secret police beat up Mr. Precetaj and told him to go ahead and

report everybody. Id. When Mr. Precetaj's daughter finally came home, she was

devastated, because her kidnappers had tortured and raped her. A.R. at 159-160.

Her torturers told her that we're pretty sure your family is going to be very happy

about what's happened to you. A.R. at 160.

After his daughter returned, Mr. Precetaj wrote to Bamir Topi, the Vice

Chairman of the Democratic Party, to ask if he could find out who had taken his

daughter. A.R. at 163-64. He also told his children to leave Albania because they

were suffering for what the Socialists thought were his mistakes. A.R. at 164. In

December of 1999, both of Mr. Precetaj's children left Albania. Id. They fled to the

US. A.R. at 164. Mr. Precetaj's children were eventually granted political asylum by

the immigration judge in New York. A.R. at 112, 130, 154.

After Mr. Precetaj's children fled Albania, his hatred for the Socialists grew,

and he because more of an activist. A.R. at 165. In June of 2001, Mr. Precetaj was

attacked while changing a flat tire. A.R. at 166. His attacker was a young, strong man

who hit him with his fist and kicked him, and told him to keep his mouth shut for the

Socialists, or they're going to shut his mouth for him. A.R. at 166. Mr. Precetaj

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reported the crime to the Democratic party. Id. Mr. Precetaj received a phone

threat telling him to stop complaining against his attacker. A.R. at 167.

Finally, in May of 2002, Mr. Precetaj received a final threat. A.R. at 166. A

telephone called told him they had left a present for him at the door. Id. When he

went outside to look, he found two bullets in an envelope left right in the door. Id.

Mr. Precetaj knew this meant that his life and his wife's life were in danger. Id. After

this final deadly threat, Mrs. Precetaj fled for the United States, and Mr. Precetaj went

into hiding. A.R. at 168. He would have gone with her right away, but he had no

visa. Id.

Mr. Precetaj believes that if he were to return to Albania, his life would be in

danger. A.R. at 168. The Socialists who threatened him are still in Albania. A.R. at

187. Although the Democrats won the parliamentary elections, local elections were

won by the Socialists in 2007. A.R. at 192. There continues to be abuse of prisoners

and detainees by police in Albania. A.R. at 192-193. Mr. Precetaj remains afraid that

he would be in danger if he is returned to Albania, in part, because Albania is a very

small place, and if he moved, his persecutors would be able to find him. A.R. at

194.

Summary of the Argument The Immigration Judge and the Board of Immigration Appeals erred in finding no past

persecution in this case. Both the Immigration Judge and the Board of Immigration

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Appeals further erred in holding that Mr. and Ms. Precetaj's asylum application

would be denied because he had not shown past persecution. Mr. Precetaj did in fact

provide ample evidence of past persecution on the basis of his political opinion,

including evidence of assault and battery and repeated death threats by agents of the

Albania government against the Precetajs. In doing so, Mr. Precetaj created a

presumption that he would be subject to persecution. The government failed to

rebut Mr. and Ms. Precetaj's evidence of past persecution, and failed to rebut the

presumption that his fear of future persecution was reasonable.

The Immigration Judge and the Board of Immigration Appeals further erred

in holding that circumstances in Albania have changed to the extent that the

respondent would no longer have a well-founded fear of future persecution, as the

government failed to establish by a preponderance of the evidence that conditions in

Albania have changed to such an extent that Mr. Precetaj and his wife would no

longer have a well-founded fear of persecution.

Finally, the Immigration Judge and the Board of Immigration Appeals erred in

failing to consider or respond in any way to the argument that Mr. Precetaj had made

out a case for humanitarian asylum under Matter of Chen, 20 I&N Dec. 211 (BIA

1985). The Immigration Judge and the Board of Immigration Appeals’ failure to

even acknowledge in his Oral Decision that such an argument had been made, much

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less to make findings of fact and law consistent with this argument, was clear error.

The case should be remanded to the Immigration Judge for findings of fact and law

on the issue of whether Mr. Precetaj is eligible for humanitarian asylum.

Standard of Review

This Court has the authority to review this matter with regard to any facts

which “any reasonable adjudicator would be compelled to conclude to the contrary”;

and legal conclusions that were contrary to the law and thus an abuse of discretion. 8

U.S.C. §1252(b)(3)(4)(C) and (D).

Argument

I. The Immigration Judge was correct in f inding that Respondent had suffered past persecution on account of his poli t ical opinion at the hands of agents of the Albanian government.

The cruel, inhuman and degrading treatment that Mr. Precetaj and his family

received at the hands of Albanian government agents clearly constitutes past

persecution, and as such, creates a rebuttable presumption of future persecution.

The Board of Immigration Appeals has defined persecution as a threat to the

life or freedom of, or the infliction of suffering or harm upon, those who differ in a

way regarded as offensive. Matter of Acosta, 19 I&N Dec. 211, 222 (BIA 1985).

Asylum seekers who can show reasonable fear of any form of cruel, inhuman, or

degrading treatment on account of one of the five protected grounds can establish

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eligibility for asylum. See Asylum Officer Basic Training Court (AOBTC), Lesson

Plan on Asylum Eligibility, Part. I (Dec. 5, 2002) at 20-21.

While it is true that the totality of a petitioner's experiences must add up to

more than mere discomfiture, unpleasantness, harassment, or unfair treatment to

constitute persecution, it is also true that mistreatment can constitute persecution

even though it does not embody a direct and unremitting threat to life or freedom.

See Nikijuluw v. Gonzales, 427 F.3d 115 (1st Cir. 2005); Bocova v. Gonzales, 12

F.3d 257 (1st Cir. 2005), citing Aguilar-Solis v. INS, 168 F.3d 565, 569-70 (1st Cir.

1999). Furthermore, persecution need not be personal to the asylum seeker if it

reasonably creates a well-founded fear of persecution in that person. See Jorgji v.

Mukasey, 514 F.3d 53 (1st Cir. 2008), citing Ravindran v. INS, 976 F.2d 754, 759

(1st Cir. 1992), citing Arriaga-Barrientos v. INS, 937 F.2d 411, 414 (9th

Cir.1991)(violence against a petitioner's family may establish a well-founded fear of

future persecution if a close link to the petitioner is shown)); see also Zhang v.

Ashcroft, 388 F.3d 713,718 (9th Cir. 2004).

In the instant case, Mr. Precetaj presented ample documentary and testimonial

evidence which established that his life and freedom had been threatened by

government actors in Albania on account of his political opinion or imputed political

opinion. A.R. 131-165; see also Exhibits 10, 14, 15, 16. Mr. Precetaj was threatened

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on numerous occasions. Id. His car was burned and destroyed as a threat and a

warning. A.R. at 145-48. And he himself was beaten on two separate occasions by

attackers insulting his Democratic party sympathies and warning him to keep quiet

about government figures. A.R. at 138-141; 165-167. But even worse, both of his

children were kidnapped and savagely beaten at least in part to send a message to

him. A.R. at 149-60; Ex. 10. His daughter also tortured and raped, again, expressly

to send a message to him to keep quiet denouncing members of the socialist

government. A.R. 158-60; Ex. 10.

Furthermore, Mr. Precetaj's testimony was sufficiently detailed to provide a

plausible and coherent account of the basis for fear and sustain a claim for asylum. 8

C.F.R.§§ 208.13(a), and 208.16(b); Matter of Mogharrabi, 19 I & N Dec. 439, 445

(BIA 1987). In fact, the Immigration Judge found Mr. Precetaj's testimony to be

credible, internally consistent, and consistent with his written statement. O.D. at 3.

That finding remained undisturbed by the Board of Immigration Appeals.

II. Because the Respondent established past persecution, there is a presumption of future persecution, which was not rebutted by the government.

Where an asylum applicant establishes past persecution, the applicant is

presumed to have a well-founded fear of persecution unless a preponderance of the

evidence establishes there has been a fundamental change in circumstances or the

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applicant could reasonably be expected to relocate to another part of the country. 8

C.F.R. §1208.13(B)(1)(i). In cases in which an applicant has demonstrated past

persecution, the government bears the burden of establishing by a preponderance of

the evidence that there has been a fundamental change in circumstances or the

applicant could reasonably be expected to relocate to another part of the country. 8

C.F.R. § 1208.13(B)(1)(ii). It is the government's burden not just to show that

conditions have changed, but to show that the changed conditions have obviated the

risk to life or freedom related to the original claim. Matter of A-T-, 24 I&N Dec. 617

(A.G. 2008).

In the instant case, while the government certainly argued that there had been a

fundamental change in circumstances, they never demonstrated by a preponderance

of he evidence that these changed conditions have obviated the risk to Mr. Precetaj's

life or freedom. Although the Democratic Party is now the ruling national party,

local politics are still often controlled by the Socialists, Mr. Precetaj's persecutors.

A.R. at 192.

Unlike in Tota v. Gonzales, 457 F3d 161 (1st Cir. 2006), in which an Albanian

Muslim had claimed asylum based on past persecution by the notorious Albanian

Communist Party in the late 1980s and early 1990s, Mr. Precetaj's claim is that he was

persecuted by government actors during a period in which the US human rights

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reports on Albania were reporting a lack of systemic political persecution. See Tota

v. Gonzales, 457 F.3d at 166-167. Yet he and his family were targeted and

persecuted repeatedly over the course of years on the basis of political opinion and

imputed political opinion. In such a circumstance, the government cannot meet their

burden just by showing that things are generally better in Albania now. They needed

to show that Mr. Precetaj's individualized fear is no longer reasonable. This they

have not done.

The Immigration Judge erred when he summarily concluded that the change

in the party in national power would necessarily remove Mr. Precetaj's well-founded

fear of future persecution. Socialists have won local elections, and remain throughout

Albania as a group as a power that Mr. Precetaj reasonably believes the national

government could not or would not keep from harming or killing him. His fear of

future persecution is both subjectively and objectively reasonable, and as such, asylum

should have been granted.

III. The Immigration Judge erred in utterly fai l ing to consider or address the respondent 's arguments or humanitarian asylum under Matter of Chen.

Finally, even if the government had met its burden to show that the changed

conditions have obviated the risk to life or freedom related, an applicant may still be

granted so-called "humanitarian asylum" as a matter of discretion. See 8 C.F.R. §

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1208.13(B)(1)(iii); see also Matter of Chen, 20 I&N Dec. 16 (BIA 1989). In certain

cases where the applicant has established past persecution but there is little likelihood

of future persecution, a favorable exercise of discretion may still be warranted if the

alien demonstrates compelling reasons for her unwillingness to return to her country

arising out of the severity of the past persecution, or a reasonable possibility that she

may suffer other serious harm upon removal to that country. Id.

In instant case, Mr. Precetaj does have a very compelling reason for being

unwilling to return to Albania: the memory of what was done to his children because

of him. Mr. Precetaj not only saw his son's bruises after he was beaten on three

separate occasions, and kidnapped one. Mr. Precetaj has to live with the memory of

watching as his daughter was kidnapped in front of him. Mr. Precetaj anguished for

three days not knowing what had happened to her. And when she did return home,

he learned that she had been tortured and raped, all because of him. What

happened to Mr. Precetaj's children was severe and brutal enough to result in grants

of asylum to them by the Immigration Judge in New York.

But in spite of all that, the Immigration Judge and the Board of Immigration

Appeals in this case failed to actually consider or respond in any way to the argument

that Mr. Precetaj had made out a case for humanitarian asylum under Matter of

Chen, supra. The Immigration Judge's failure to even acknowledge in his Oral

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Decision that such an argument had been made, much less to make findings of fact

and law consistent with this argument, was clear error. The case should therefore be

remanded for findings of fact and law on the issue of whether Mr. Precetaj is eligible

for humanitarian asylum.

Conclusion

The Immigration Judge was correct in finding that Respondent had suffered

past persecution on account of his political opinion at the hands of agents of the

Albanian government. Because the Respondent established past persecution, there is

a presumption of future persecution, which was not rebutted by the government.

The Immigration Judge erred in failing to consider or address the respondent's

arguments for humanitarian asylum. The Immigration Judge thus erred in denying

Mr. Precetaj the relief requested. For these reasons and those discussed above, the

decisions of the Board of Immigration Appeals and the Immigration Judge must be

reversed. Mr. and Ms. Precetaj thus pray that this Honorable Court grant this

Petition for Review.

Respectfully Submitted,

/S/ Jeffrey B. Rubin

Jeffrey B. Rubin, Esq. Law Offices of Jeffrey B. Rubin, P.C. Attorney for Petitioner One Center Plaza, Suite 230

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Boston, MA 02108 (617) 367-0077

Certi f icate of Service

I hereby certify that on May 17, 2010, I served two (2) copies of the foregoing

Petitioner’s Brief upon Lauren Ritter, Esq., Office of Immigration Litigation, Civil

Division, P.O. Box 878, Ben Franklin Station, Washington, D.C. 20044, by first class

mail, postage prepaid.

/S/ Jeffrey B. Rubin Jeffrey B. Rubin

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Certi f icate of Compliance

Pursuant to Rule 32 of the Fed. R. App. P., the undersigned hereby certifies that the foregoing brief uses a proportionally spaced typeface, which includes serifs, of fourteen (14) points. The total number of words, according to the word processing system used to write the body of this brief, is 3,832.

/S/ Jeffrey B. Rubin Jeffrey B. Rubin