Rudina Shkembi v. Alberto R. Gonzales

*Pursuant to Federal Rule of Appellate Procedure 43(c), we have substituted
Alberto Gonzales for John Ashcroft as the named respondent.
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued January 26, 2005
Decided April 11, 2005
Before
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge*
No. 04-1257
RUDINA SHKEMBI,
Petitioner,
v.
ALBERTO R. GONZALES,*
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
No. A 77 840 780
ORDER
Rudina Shkembi is a native and citizen of Albania who entered the United
States in July 1999 without being admitted or inspected by an immigration officer.
She requested asylum and withholding of removal the next year, claiming
persecution on account of her political opinion. After a hearing, an immigration
judge (IJ) concluded that Shkembi was not credible and, even if she were, that she
failed to offer sufficient evidence that she was persecuted in the past or had a well-
founded fear of being persecuted in the future on account of her political opinions if
she returned to Albania. We deny Shkembi’s petition for review because we agree
with the IJ that she failed to prove her case.
Shkembi was born in 1970 when the Communist Party controlled Albania.
Her family was forced to live in what she called a “concentration camp” because her

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grandfather was an outspoken critic of communism. The Communist Party ruled
Albania for the early years of Shkembi’s life, until a multi-party political system
was put in place in the 1980s. See U.S. Department of State, Background Note:
Albania (October 2004), http://www.state.gov/r/pa/ei/bgn/3235.htm (last visited
March 31, 2005). In 1992 Sali Berisha, who was the leader of the Albanian
Democratic Party, became the country’s first democratically elected president.
Elections in June 1997 brought the Socialist Party to power, and they remain in
power today. See U.S. Department of State, Albania Profile of Asylum Claims and
Country Conditions (2001); see also Comollari v. Ashcroft, 378 F.3d 694, 696 (7th
Cir. 2004).
Shkembi bases her claim of past persecution and fears of future persecution
on four separate incidents. The first two occurred while the Democratic Party was
still in power. In August 1994 Shkembi attended a rally for the Democratic Party.
When she stood up at the rally to criticize the party, the police arrested her.
Shkembi explains that they “did not want anyone to say bad things about the
democratic party.” Shkembi was detained for 24 hours and hit on the legs, knees,
and chest with rubber sticks and warned that if she continued protesting she would
be put in jail. Shkembi did not testify about the severity of the beating, the extent
of her injuries, or whether she required any medical care.
Shkembi’s second encounter with the police was in 1996. On May 5, the day
in Albania when the country honors its heroes and martyrs, she joined a group of
25-30 people who were demonstrating. Shkembi was there to protest that two of
her uncles, who were killed by communists, were omitted from the government’s
official list of heroes and martyrs. Shkembi testified that the police first threatened
to arrest the protestors and then began to hit them, including her, with sticks.
Shkembi was arrested and held at the police station for eight hours but was not
charged with an offense. She did not testify that she was hit or otherwise
mistreated at the station.
Shkembi described a third incident that occurred in October 1998, when the
Socialist Party was in control of the government. Shkembi was walking home to
her apartment one evening when she heard a gunshot and saw that a window in
her building had been shattered. She testified that she also “heard some voices
saying that Rudina Shkembi this is what you deserve.” When questioned about
who she thought was responsible, she responded vaguely that it was the
government:
The same people from the socialist party, the same people that were
the communist party were again in, in the government, and governing
the country so I was again one of the people (indiscernible), amongst
the people in their list, so they wanted to eliminate me.

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No. 04-1257 Page 3
She also said: “All the people that were against the government, they had on their
lists, so they knew what they were doing against the government and they had
their names.” When asked to explain her statement that she was on a list, she
offered a vague explanation. She claimed that she participated in large scale riots
earlier that year, and, even though she was never arrested during them, that the
police might have seen her and identified her as an opponent of the government.
Shkembi described a fourth and final incident that occurred before she fled
Albania. She said that about two weeks after the gunshot incident she was stopped
in Tirana by “two plain clothes people” who told her that if she didn’t stop her
“activity” she was going to be “eliminate[d] . . . physically.” She testified that she
thought they were police officers, but did not explain why. Shkembi said that she
left Albania shortly thereafter because she thought that her life was in danger.
In addition to testifying about her experiences, Shkembi submitted some
documentary evidence: a membership booklet of the Association of Formerly
Politically Persecuted and records to prove that she had been arrested twice. But
an expert testified and called the validity of the documents into question. The IJ
found the expert to be credible and discounted the documentary evidence as
possibly fabricated.
Based on Shkembi’s submission of questionable documents as well as other
factors, the IJ concluded that she was not credible. In addition he said that even if
Shkembi was detained in 1994 and 1996 as she testified, the incidents were minor
and did not rise to the level of persecution; Shkembi had not demonstrated that she
was seriously harmed by the police or that she needed medical care. On the issue of
future persecution, the IJ said that Shkembi had not provided sufficient evidence or
explanation of why she would be viewed as an opponent of the Albanian
government and thus the target of political persecution. Shkembi appealed, and
the Board of Immigration Appeals affirmed without a separate opinion.
In this court Shkembi attacks the IJ’s credibility determination, and raises
some doubt that it was well-reasoned. For example, she points out that the
questionable documents undermined her credibility even though IJ never made a
finding that Shkembi knew the documents were false. See Kourski v. Ashcroft, 355
F.3d 1038, 1039-40 (7th Cir. 2004) (negative credibility finding warranted only if
person knew or should have known that documents were false).
But the IJ also reached an alternative conclusion that she failed to prove her
case, and Shkembi barely addresses that part of the IJ’s decision. She suggests
without support in her brief that the beating she endured “rose way above the level
of mere harassment,” that the persecution she endured was on account of her
political opinion, and that the “pattern of intimidation was worsening.”

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No. 04-1257 Page 4
We will overturn the IJ’s determination that Shkembi’s experiences with the
police did not rise to the level of persecution only if we are compelled to reach an
alternative conclusion. Dandan v. Ashcroft, 339 F.3d 567, 572 (7th Cir. 2003).
Actions must rise above the level of harassment to constitute persecution. Id. at
573. “Multiple incidents create a more compelling case,” id., but petitioners still
must prove that the beatings were severe. Petitioners often prove the severity of a
beating by testifying about the extent of their injuries. See id. at 574 (“We do not
hold that lost teeth or broken bones are the sine qua non of persecution, but these
specifics indicate the severity of the beating and support its claim to be considered
persecution.”).
Although Shkembi contends on appeal that her experiences rose above
harassment, she never provided testimony to support that conclusion. Her first
detention lasted 24 hours and during it she was hit on her body with rubber sticks.
She did not offer any details about the severity of the beating, and, as the IJ noted,
she did not describe her injuries. The second detention lasted only 8 hours, and
Shkembi did not testify that she was mistreated during it, though she did say that
officers hit her when she was apprehended. In a recent case, we held that the
evidence did not compel a finding of persecution when the petitioner claimed that
he was stopped and interrogated several times, detained once for 24 hours, and
beaten once, causing an injury to his hands. See Prela v. Ashcroft, 394 F.3d 515,
517-18 (7th Cir. 2005). Shkembi’s reports likewise do not compel a finding of
persecution.
On the issue of future persecution, the IJ concluded that Shkembi failed to
prove a well-founded fear of future persecution because she didn’t explain why she
would have been identified as an opponent of the Albanian government. Shkembi
claims that she “continually expressed her political views that each successive
regime was not fulfilling its promises to the people” and that her activism took the
form of attending demonstrations and affiliating with the Association of the
Formerly Politically Persecuted. But her activism at demonstrations occurred when
the Democratic Party was in power, and she has never provided a sound
explanation of why the current socialist government would view her as an opponent
based on her criticism of the Democratic Party. As far as her membership in the
Association of Formerly Politically Persecuted, she has never explained why her
membership amounts to a political statement or implies a particular political
opinion. In her brief she says, without citation to the record, that “the organization
is dedicated, among other things, to having those killed by the Communists
recognized as martyrs.” But according to the record, the government maintains a
list of people who were formerly politically persecuted, and even purports to grant
benefits to the families of people on the list. See U.S. State Department, Albania:
Profile of Asylum Claims and Country Conditions (2001), (explaining that the
government promises benefits to formerly politically persecuted individuals, but no
government since 1992 has fulfilled its promises). Shkembi has not explained why

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a government that maintains an official list of persecuted people would target her
for joining an organization that seeks to have individuals added to that list. We
recognize that there may be an explanation, but it was Shkembi’s burden to fill in
the gaps in her story. The IJ’s conclusion that Shkembi failed to prove that she has
a well-founded fear of being persecuted in the future on account of her political
opinion is supported by the record.
One final matter deserves mention. At argument counsel asserted: “If there’s
a ten percent chance that someone will return to his own country and has a basis
for an objective fear . . . they are entitled to a grant of political asylum.” Counsel
cited INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987), in support of his
proposition. We are not sure what counsel meant to suggest with this statement,
but in the context of the argument we understand him to assert that Shkembi
needed to show only a ten percent chance that any persecution she might face
would be on account of her political opinion. In Cardoza-Fonseca, the Supreme
Court did say that a petitioner may have a well-founded fear of persecution if there
is only a ten percent chance that he will be persecuted. Id. By way of example, the
Court pointed out that if a government is executing one out of every ten adult
males, a petitioner will be able to show that his fear of persecution is “well-
founded.” Id. But petitioners still must prove that any persecution they fear would
be “on account of” one of the grounds listed in the act. See 8 U.S.C. § 1101(a)(42).
The Cardoza-Fonseca Court was not focusing on this element, and its example
should not be interpreted to excuse petitioners from proving it. Shkmebi certainly
has not proven that the Albanian government persecutes one out of ten political
opponents, and neither has she proven that the government has reason to identify
her as a political opponent.
Because the conclusion that Shkembi failed to prove that she was subjected
to past persecution or that she has a well-founded fear of future persecution on
account of a ground listed in the act is supported by substantial evidence, we deny
her petition for review.

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