Shehu v. Gonzales, et al

United States Court of Appeals
Fifth Circuit
F I L E D
March 17, 2006
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 05-60585
Summary Calendar
_______________
FLORIE SHEHU,
Petitioner,
VERSUS
ALBERTO R. GONZALES,
U.S. ATTORNEY GENERAL,
Respondent.
_________________________
Petition for Review of an Order
of the Board of Immigration Appeals
______________________________
Before SMITH, GARZA, AND PRADO,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Florie Shehu, a Kosovar Muslim who fled
her country during the 1998 turmoil, appeals
the decision of the Board of Immigration Ap-
peals (“BIA”), which summarily affirmed the
decision of the Immigration Judge (“IJ”)
denying her petition for asylum. The IJ found
Shehu to be a credible witness and that Shehu
had established past persecution. Because she
established past persecution, Shehu was en-
titled to a rebuttable presumption of a well-
founded fear of future persecution, with the
burden on the government to prove, by a pre-
ponderance of the evidence, that circumstanc-
es in Kosovo had changed to such degree that

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Shehu’s fear was no longer “well-founded.”1
The IJ found that the government has met
that burden. On appeal, Shehu argues that the
IJ’s findings were general and did not respond
to her individualized factual statements dem-
onstrating fear of future persecution. She also
argues that any alleged change in Kosovo is
not a “fundamental” change and that she was
entitled to humanitarian asylum.
We must affirm if the decision is “supported
by reasonable, substantial, and probative
evidence on the record considered as a
whole.” INS v. Elias-Zacarias, 502 U.S. 478,
481 (1992). We will reverse only if we de-
termine that the evidence compels a different
result. Id.
I.
This court has not considered what limi-
tations should be placed on inferences that can
be drawn from generalized evidence of
changed country conditions. Even assuming
that we would require the government to ne-
gate the applicant’s individual fear of persecu-
tion, the evidence effectively negates Shehu’s
individual fear of persecution.
All instances of past persecution that Shehu
has cited, on behalf of herself or of her rela-
tives, were at the hands of the Serbian-domin-
ated police or Serbian paramilitary forces. The
IJ found, howeverSSand the finding is
supported by substantial evidenceSSthat the
Kosovo administration (and police) are no
longer dominated by Serbs, but by the United
Nations Interim Administrative Mission in
Kosovo (“UNMIK”) and Provisional Institu-
tions of Self Government (“PISG”).
The Serbian paramilitary forces have left
Kosovo. Moreover, we take judicial notice of
the 2003 Country Report, which states that
“the high level of revenge-based violence that
followed Yugoslavia’s 1999 withdrawal con-
tinued to decline significantly,” and that there
were “several instances of Serb violence
against Kosovo Albanians, but no reported fa-
talities.”2 Erebara v. Ashcroft, 124 Fed.
Appx. 444 (7th Cir. 2005) (taking judicial
notice of the same report).
The identity of the current Kosovar gov-
ernment is therefore different from that of the
past government that persecuted the Shehus.
The Serbian paramilitary forces have also left
the country. Whatever harassment or violence
against former KLA members and their fami-
lies still exists cannot be labeled “persecution”
absent some proof that the current UNMIK
and Albanian-controlled Kosovar government
“condoned it or at least demonstrated a com-
plete helplessness to protect the victims.”
Galina v. INS, 213 F.3d 955, 958 (7th Cir.
2000).
The record does not compel or even sup-
port a conclusion that Mr. Shehu’s crash,
which petitioner labels attempted killing, was
orchestrated or condoned by the current gov-
ernment. The IJ stated that “[r]espondent
does not specifically address who her
1 See 8 C.F.R. § 208.13(b)(1)(i), (ii); Zhu v.
Ashcroft, 382 F.3d 521, 529 & n.6 (5th Cir. 2004);
Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir.
2005).
2 See Dobrota v. INS, 195 F.3d 970, 973 (7th
Cir. 1999) (taking judicial notice of most recent
Country Report to determine current country con-
ditions); United States Department of State, Coun-
try Reports on Human Rights PracticesSS2003:
Serbia and Montenegro (Feb. 25, 2004), available
at www.state.gov/g/drl/rls/hrrpt/2003-
/27874pdf.htm.

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husband’s enemies were and why she believes
they are still at large in Kosovo.” A.R. 91.
In fact, the most current country report, of
which we also take judicial notice, states that
“[t]here were no politically motivated killings
by UNMIK, the PISG, KFOR, or their agents”
and that “UNMIK and the PISG generally re-
spected the human rights of Kosovo’s resi-
dents” with some exceptions with respect to
violations of the rights of Kosovo Serbs.3
That is, it is Serbs, not Albanians, who appear
most of risk of potential persecution. Because
Shehu has not presented any direct or circum-
stantial evidence that would connect the gov-
ernment to her husband’s car crash, the IJ was
not required to believe her speculative opinion
as to the origin of the crash, even if he be-
lieved her factual account that there was a
crash.
Contrary to Shehu’s assertions, even if her
factual testimony that a car crash occur might
not require corroboration if credible, there is
no ban on the IJ’s asking for corroboration on
the applicant’s opinion testimony that the cur-
rent Kosovar government condoned the crash,
especially given that there is no factual basis to
make such an opinion inference. For instance,
there is no evidence that the Shehus reported
the crash to the police or requested protection,
and whether that effort was in vain. Although
the violence against former KLA members
reported by Shehu’s expert is unfortunate,
there is no “persecution” absent proof that the
violence is condoned or orchestrated by the
current Kosovar government. Therefore, the
IJ did not misapply the corroboration rule, and
the record does not compel a conclusion that
the change in circumstances did not negate
Shehu’s alleged fear of persecution.
Decisions from other jurisdictions have
reach similar conclusions.4 The Second Circuit
has recently held, for instance, that where the
past and future forms of abuse implicate
different policies or practices, the govern-
ment’s burden in proving changed country
conditions is lighter than if the abusive prac-
tices implicated the same concerns. See Islami
v. Gonzales, 412 F.3d 391, 397 (2d Cir.
2005). Because Islami’s prospective fears
were not related to “institutionalized persecu-
tion” from the government and military, but in-
stead centered on “alleged scattered incidents
of continued harassment and abuse of ethnic
Albanians,” the court found that the pre-
sumption of future persecution was adequately
rebutted. Id. In this case, as in Islami, the
past and future forms of abuse implicate
different policies or practices because the past
persecution was institutionalized persecution
led by the Serbian-controlled government and
paramilitary forces, but the current abuse, al-
though attributed to Serbs, is not linked to the
UNMIK and Albanian-controlled Kosovar
3 United States Department of State, Country
Reports on Human Rights PracticesSS2004: Serbia
and Montenegro (Feb. 28, 2005), available at
h t t p : / / w w w . s t a t e. g o v / g / d r l / r l s / h r r p t -
/2004/41706.htm.
4 See, e.g., Grishaj v. I.N.S., 101 Fed. Appx.
631 (6th Cir. 2004) (holding that the presumption
of future persecution was rebutted by evidence that
conditions in Kosovo had changed, because,
despite citing some contrary evidence, petitioner
has not met her burden of showing that any rea-
sonable adjudicator would be compelled to reach a
different conclusion); Jakaj v. U.S. Dep’t of
Justice, 2006 WL 166479, at *1 (2d Cir. Jan. 24,
2006) (finding that presumption of future perse-
cution based on political opinion was rebutted by
evidence from state department reports and news-
paper articles that the Democratic League of Koso-
vo, the political party in which Jakaj was an active
member, was successful in the 2001 elections).

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government.
II.
We also reject Shehu’s claim that there was
no proof, by a preponderance of the evidence,
of a “fundamental” change in country condi-
tions. Shehu asserts that reliance solely on
State Department reports was inadequate and
that any change that was proved is only “tem-
porary” thus by definition not fundamental.
Contrary to Shehu’s allegation that the IJ
made his determination as to changed country
conditions based solely on the State Depart-
ment Reports, the IJ stated that “[d]ocuments
submitted by both parties, including the State
Department’s Country Reports on Human
Rights Practices for the Federal Republic of
Yugoslavia, articles on the current situation in
Kosovo, plus a report of an Independent Task
Force in the Balkans describe the changes that
have occurred in Yugoslavia since the fall of
Milosevic.” A.R. 89. From the totality of
these documents the IJ concluded that “the
documents show that the Serbian oppression
of ethnic Albanians has been greatly reduced.”
The IJ also noted that the State Department’s
reports, which show that circumstances have
changed, are corroborated by the report cre-
ated by the Independent Task Force, which
stated that “The Balkan violence of the 1990s
has run its course . . . . In Kosovo, the repres-
sion of the ethnic Albanians has ended and
work has begun to rebuild that damaged soci-
ety.” A.R. 91.
The IJ quoted the State Department Re-
ports that showed that approximately 100,000
Serbs remaining in Kosovo live primarily in the
north or in enclaves under the protection of a
NATO peacekeeping force and that much of
the ethnically motivated violence in the region
is now perpetrated by ethnic Albanians. A.R.
90. The IJ noted that the Serbs became so
fearful of revenge by the ethnic Albanians that
150,000 Serbs left Kosovo. Id.
The IJ also commented that murders in
Kosovo decreased from 136 in 2001 to 68 in
2002 and that most of the murders of Serbs
and minorities were ethnically motivated, but
the killings of Albanians were connected to
family and economic rivalries and criminal ac-
tivities. Id. The IJ noted that although there
was some Serb violence against ethnic Alba-
nians, it was primarily limited to the Serb-
controlled north. Id. He explained that the
Shehus lived in Junik, which was located in the
South, near the border with Albania.
The IJ noted (and this finding is also sup-
ported by the most recent Country Report),
that freedom of movement for ethnic minori-
ties, particularly Kosovo Serbs, continued to
be a serious problem, so Serbs from Northern
enclaves could not travel to Junik to endanger
the Shehus’ lives. Shehu’s expert testified that
Serbs continued to move freely, but the IJ
gave more weight to the State Department re-
ports because Shehu’s expert failed to give
specific examples to corroborate her opinion.
The record does not compel (rather than mere-
ly support) a contrary conclusion.
In sum, the IJ found that fundamental
changes have occurred in Kosovo because the
paramilitary forces that persecuted Shehu in
the past no longer control Kosovo. Although
Shehu cites to a 2000 article that the NATO
forces were unable fully to control the vio-
lence, later country reports plainly show that
the violence has been significantly decreased,
as noted above. Most importantly, there is no
evidence that the UN, NATO and Albanian
forces controlling Kosovo are orchestrating
and condoning violence against ethnic Alba-

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nians for ethnic or political reasons. The rec-
ord does not compel a contrary conclusion.
Shehu also argues that only transitory, not
fundamental, changes occurred in Kosovo be-
cause the Serbian nationalists won a plurality
of votes in the Serbian parliament in 2003, so
there was risk of backsliding in the region.
This argument is frivolous. Although Kosovo
is technically part of Serbia and Montenegro,
it has significant autonomy, its own parliament
in which ethnic Albanians have a majority of
votes, and its own administration independent
of Serbia. There is no indication that the
Serbian nationalists could ever gain control of
the Kosovar legislative or executive branches.5
Therefore, the record does not compel a
conclusion that the changes in Kosovo are
transitory as opposed to permanent.
III.
The regulations, namely 8 C.F.R. § 208.13-
(b)(1)(iii)(A), nevertheless allow an alien who
has been persecuted but is in no danger of
being harmed in the future to avoid removal by
showing “compelling reasons” for not being
returned to his country. Shehu argues that she
qualifies under this provision.
For this regulation to be invoked, the past
persecution suffered by an alien must be par-
ticularly severe, as was the case of the German
Jews, the victims of the Chinese Cultural Rev-
olution, survivors of the Cambodian genocide,
and a few other such extreme cases.6 As Bu
cur explained, “[m]ild persecution may be
something of an oxymoron, but the regulation
makes clear that a refugee who has no reason-
able fear of future persecution must indeed
prove that his past persecution was a severe
rather than a mild (bordering on ‘mere’ dis-
crimination) form of persecution.” Bucur, 109
F.3d at 405.
In Bucur, the persecution suffered by a Je-
hovah’s Witness in Romania, where allegedly
he was not allowed to practice his religion,
was found not to be severe enough as that out-
lined in past cases such as Matter of Chen.
Similarly, in Pergega-Gjonaj v. Gonzales, 128
Fed. Appx. 507 (6th Cir. 2005) (per curiam),
the four months of hard labor and starvation
endured by petitioners was found “undoubt-
edly terrible, and their plight was considered
even more difficult as a result of the atrocities
committed against their family members,” id.
at 512, yet, the court was “convinced that the
suffering inflicted upon these petitioners does
not represent the type of extreme case neces-
sary to justify the invocation of § 208.13(b)-
(1)(iii)(A),” id. at 513.
Like the petitioners in Bucur and Pergega-
Gjonaj, Shehu has been unable to show severe
persecution. She argues that severe persecu-
tion is demonstrated by the facts (1) that her
father was kidnaped and executed; (2) that she
5 Furthermore, it is uncertain whether after the
departure of the NATO forces, Kosovo will even
continue to be part of Serbia and Montenegro, or
will be recognized as an independent state later this
year after the conclusion of UN-led negotiations
that are currently taking place in Vienna.
6 Bucur v. INS, 109 F.3d 399, 405 (7th Cir.
(continued...)
6(...continued)
1997); see also Gonahasa v. INS, 181 F.3d 538,
544 (4th Cir. 1999) (“Eligibility for asylum based
on severity of persecution alone is reserved for the
most atrocious abuse.”); Matter of Chen, 20 I. &
N. Dec. 16, 19-20 (BIA 1989) (humanitarian asy-
lum justified for victim of Chinese Cultural Rev-
olution whose father was tortured for eight years
and killed, and who was interrogated, imprisoned,
tortured, and starved for nine years, beginning
when he was a child, leaving him physically de-
bilitated).

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was forced to watch her husband being beaten;
(3) being forced into exile and having to es-
cape by foot; (4) having her livelihood as a
doctor destroyed; (5) being subjected to artil-
lery and infantry attack for a few days,
(6) having a home destroyed by Serbian troops
and (7) that her husband was wounded, beat-
en, and subject to attempted murder.
Facts (1) and (7) do not apply because they
do not relate to persecution personally suf-
fered by the petitioner. Similarly, facts (2),
(3), and (7) are no more severe than the expe-
rience of a vast percentage of those seeking
asylum who suffered beatings and were forced
into exile. Although these circumstances are
terrible, they are not severe enough to warrant
application of humanitarian asylum. Further-
more, losing one’s type of employment (fact
(4)) is not sufficient to show entitlement to
humanitarian asylum or even persecution.7
Shehu’s short arrests in 1990 and 1994 also do
not constitute persecution, or at least not se-
vere persecution.8
Last, although the fact that Shehu and her
village were subject to artillery and infantry
attacks for a few days does constitute persecu-
tion, it is not as severe as that in Chen, in
which the petitioner was interrogated, impris-
oned, tortured, and starved for nine years, be-
ginning when he was a child, leaving him phy-
sically debilitated. 20 I. & N. Dec. at 19-20.
Therefore, the evidence Shehu has presented
does not compel a conclusion that she was
entitled to humanitarian asylum.
The petition for review is therefore
DENIED.
7 See Capric v. Ashcroft, 355 F.3d 1075, 1093
(7th Cir. 2004) (holding that termination from job,
even in face of other economic hardship, did not
constitute persecution, especially considering that
economic hardship existed throughout country and
petitioner never sought other work); Medhin v.
Ashcroft, 350 F.3d 685, 689 (7th Cir. 2003)
(holding that loss of job because of ethnicity was
discrimination but not persecution); Sharif v. INS,
87 F.3d 932, 935 (7th Cir. 1996) (finding no per-
secution where petitioner lost job and found anoth-
er); Gormley v. Ashcroft, 364 F.3d 1172, 1178-80
(9th Cir. 2004) (holding that loss of jobs as a result
of South Africa’s post-apartheid Employment
Equity Act, and inability to find alternate
employment, not persecution); Barreto-Claro v.
United States Attorney Gen., 275 F.3d 1334, 1340
(11th Cir. 2001) (holding that losing job as taxi
driver and finding only “menial work” not
persecution); Zalega v. I.N.S., 916 F.2d 1257,
1260 (7th Cir. 1990) (holding that loss of job was
“persecution” but not substantial persecution).
8 See, e.g., Prela v. Ashcroft, 394 F.3d 515,
518 (7th Cir. 2005) (stating that being “inter-
rogated at various times by the police, detained for
twenty-four hours, harassed for money, and beaten,
causing an injury to his hands” does not compel a
finding of persecution); Dandan v. Ashcroft, 339
F.3d 567, 573-74 (7th Cir. 2003) (concluding that
detention for three days without food and beatings
that caused facial swelling did not compel a finding
of past persecution); Zalega v. INS, 916 F.2d
1257, 1260 (7th Cir. 1990) (affirming finding that
periodic searches, arrests, and detainments did not
constitute past persecution).

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