KASTRIOT MUSABELLIU , ASIJE MUSABELLIU , and LEDINA MUSABELLIU v. ALBERTO R. GONZALES , Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2286
K ASTRIOT M USABELLIU , A SIJE M USABELLIU ,
and L EDINA M USABELLIU ,
Petitioners,
v.
A LBERTO R. G ONZALES , Attorney General
of the United States,
Respondent.
____________
Petition for Review of a Decision of the
Board of Immigration Appeals
____________
A RGUED S EPTEMBER 27, 2005—D ECIDED M ARCH 27, 2006
____________
Before C UDAHY , P OSNER , and E ASTERBROOK , Circuit
Judges.
E ASTERBROOK , Circuit Judge. For 30 years Kastriot
Musabelliu served in Albania’s military. When mustered
out at the end of January 2001 he held the rank of brigadier
general. He used a tourist visa to enter the United States
that May; when the visa expired he neither departed nor
sought an extension. He claimed asylum with only a few
days left in the year allowed for that step. 8 U.S.C.
§1158(a)(2)(B). His wife and daughter have filed claims that
depend on his; we do not discuss them further.
Musabelliu contends that he was persecuted (and remains
at risk of persecution) because of his political opinions. He

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2 No. 04-2286
relates that during the first half of 1999, while Serbian
forces were removing ethnic Albanians from Kosovo and
soldiers under his command were posted at the border, he
noticed illegal arms deliveries into Kosovo and the diversion
of food from refugees to the black market. He notified both
his immediate superior and Luan Hajdaraga, the Minister
of Defense, who told him to keep his mouth shut and mind
his own business—which he did, allowing both the arms
smuggling and the diversion of relief supplies to continue.
A colonel at the time, Musabelliu soon was promoted to
general. Hajdaraga was removed from the defense portfolio
on July 7, 2000, though in July 2003 he returned to the
cabinet as Acting Minister of Foreign Affairs. (He is not in
office today. His party lost the election in 2005, and a new
cabinet was formed that September with Sali Berisha of the
Democratic Party as Prime Minister.)
Musabelliu suspects that Hajdaraga (though out of office)
had a hand in his dismissal (which the military services
justified on the ground that 30 years is enough). Musabelliu
likewise suspects that Hajdaraga was behind an incident
during January 2001: two persons fired at a military convoy
in which Musabelliu was riding. After the end of his
military career Musabelliu tried without success to meet
with Prime Minister Ilir Meta and asked the public prosecu-
tor to do more about corruption; he was shot in the arm
during April 2001 while returning from a visit to the
prosecutor’s office and maintains that all those who have
opposed Hajdaraga must flee Albania if they are to remain
safe.
The immigration judge concluded that Musabelliu had not
established, by a preponderance of the evidence, that his
speech caused the later events. The immigration judge
added that, even if all of Musabelliu’s suspicions are
correct, they would not show that he had been or would
be persecuted on account of his political opinions. The

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No. 04-2286 3
Board of Immigration Appeals agreed with the immigration
judge on both grounds.
Asylum is available to refugees, a term defined in 8
U.S.C. §1101(a)(42)(A) as those facing “a well-founded fear
of persecution on account of race, religion, nationality,
membership in a particular social group, or political opin-
ion” in their native land. Losing a job is not persecution. See
Medhin v. Ashcroft, 350 F.3d 685, 689 (7th Cir. 2003).
Musabelliu does not contend that other employment in
Albania was closed to him or that he faced substantial
economic disadvantage. See Borca v. INS, 77 F.3d 210, 215-
17 (7th Cir. 1996); Kovac v. INS, 407 F.2d 102, 107 (9th Cir.
1969); Matter of Acosta, 19 I&N Dec. 211, 222 (BIA 1985).
The spoils system is limited by the first amendment in the
United States, see Rutan v. Republican Party of Illinois, 497
U.S. 62 (1990); Elrod v. Burns, 427 U.S. 347 (1976), but we
do not ban all efforts to fill public positions with persons
deemed reliable (let alone insist that the whole world follow
Rutan and Elrod). Asylum is not a form of unemployment
compensation. In this nation senior military officers are
subject to Senate confirmation; no one doubts the ability of
the President and Senate to deny a generalship to a person
whose opinions they deem unacceptable. So although it may
be regrettable when a foreign nation removes from its
military command persons who have opposed corruption,
that does not entitle the removed officer to live the rest of
his life in the United States.
For completeness we add that Musabelliu has not estab-
lished that his speech led to the discharge. Post hoc ergo
propter hoc is not a good way to prove causation. Musabelliu
was left in his post at the border after passing his observa-
tions up the chain of command. Later he was promoted.
Thirty years is a long career for a military officer in the
United States; if a return to civilian life after three decades
is unusually soon for generals in Albania, then Musabelliu
could have demonstrated that fact in order to support an

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4 No. 04-2286
inference that his departure had an unusual cause. Sub-
stantial evidence supports the agency’s conclusion that he
has not established that his decision to inform his superiors
cost him his military career. See INS v. Elias-Zacarias, 502
U.S. 478, 481 & n.1 (1992). See also 8 U.S.C. §1252(b)(4).
The same must be said about the convoy incident in
January 2001. Musabelliu testified that the shots were fired
at the lead vehicle in a convoy. Musabelliu himself was
farther back in the line and was uninjured. At the time, the
region that Musabelliu’s solders had been patrolling (and
from which the convoy was departing) was full of armed
refugees from Kosovo plus other armed factions and some
bandits. That two people shot in a convoy’s direction could
have had many causes other than an effort to assassinate
the commanding general; and if it was an effort to kill the
general, it could have had causes other than Musabelliu’s
statements two years earlier. Musabelliu may have had
many enemies; having served since 1971 in the military of
one of the world’s most repressive regimes (Enver Hoxha,
who ruled Albania between 1944 and 1985, was intolerant
of religion, markets, speech, and freedom, among other
things, and his successor Ramiz Alia continued his policies
through 1990) Musabelliu may have been at risk from other
persons who wanted to settle scores once arms became
available to the populace. The agency did not commit a
clear error in concluding that Musabelliu had not estab-
lished a causal link between his 1999 statements and this
incident.
Unlike losing command of a brigade, a risk of death can
be “persecution,” so the next question is whether
Musabelliu’s post-discharge complaints to the pub-
lic prosecutor, and his efforts to meet with the Prime
Minister, are a form of “political opinion” that led to the
shooting incident in April 2001. Musabelliu changed his
story in material ways between his written application for
asylum and the hearing. In one version the prosecutor

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No. 04-2286 5
summoned him (the implication being that Musabelliu
was in trouble with the authorities), and in another
Musabelliu took the initiative in helping a crusading
prosecutor get the goods on corrupt office holders. In one
version Musabelliu was shot, from long range, a good
distance from his home; in another he was shot from close
range just outside his door. In one version the press had
publicized his upcoming visit to the prosecutor (the implica-
tion being that someone who learned about his whistle-
blowing wanted his mouth closed), and in another the visit
was confidential. The immigration judge noted that no press
accounts were introduced into evidence, though they should
have been available—if only because Musabelliu had held
a high position in a small nation (Albania’s population is
under 4 million), and his shooting would be newsworthy
even though the wound was not life-threatening. His wife
Asije testified that the incident “was everywhere in the
media.”
Musabelliu testified that he was a friend of the U.S.
Ambassador, who believed that Musabelliu was at risk
and issued visas so that his family could escape to safety;
but the IJ concluded from the timing of the visa applica-
tions (which predated April 2001) that this cannot have
been so. Joseph Limprecht, the Ambassador to Albania
at the time of these events, could have cleared matters
up, but died in May 2002 (the same month Musabelliu
applied for asylum), which enabled Musabelliu to testify
without fear of contradiction—and he did not offer either
testimony or affidavit from anyone else who was on the
Embassy’s staff at the time and would have been able to
confirm his version of events. That almost a year passed
between Musabelliu’s arrival in the United States and
his claim for asylum, and that the stated reason for the
visas was to allow Musabelliu and his wife to attend their
daughter’s graduation from college, further undermine
his contention that the Embassy issued the visas to facili-

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6 No. 04-2286
tate the family’s escape. Finally, the IJ noted that even if
everything Musabelliu said on the stand is true, there is no
particular reason to believe that Hajdaraga (out of public
office at the time) was behind the shooting. Musabelliu had
been warned by friends to “watch his back,” but they did not
say why—and as we have noted he may have had many
enemies. The IJ’s evaluation is not an adverse credibility
determination; instead it is a conclusion Musabelliu had not
established the cause of the events to which he testified,
and that decision cannot be labeled clearly erroneous.
All questions about causation to one side, Musabelliu still
has problems, for he did not take a public political stand.
Whistle-blowing about public corruption can be a form of
political opinion. See Marquez v. INS, 105 F.3d 374, 381
(7th Cir. 1997); Grava v. INS, 205 F.3d 1177, 1181 (9th Cir.
2000). Someone who campaigns against the government and
urges the voters to throw the rascals out is engaged in
political speech. Likewise someone who writes an op-ed
piece or otherwise urges the people to rid themselves of
corrupt officials. But Musabelliu did not do either of these
things. Instead he made his views known within the chain
of command, as part of his official duties. Later he talked in
private with a prosecutor. It is an open question even in the
United States whether the first amendment gives public
officials a right to be free of retaliation when they speak
within an agency’s hierarchy on an issue of public concern,
as part of their duties. The Supreme Court has granted
certiorari in Garcetti v. Ceballos, No. 04-473 (reargued Mar.
21, 2006), which presents a question along these lines.
Smuggling and the diversion of relief supplies are
issues of public concern, but Musabelliu did not take
them to the public in quest of a political decision. Cf.
Connick v. Myers, 461 U.S. 138 (1983); Givhan v. Western
Line Consolidated School District, 439 U.S. 410 (1979);
Taylor v. Carmouche, 214 F.3d 788, 792 (7th Cir. 2000). It
would be implausible to treat the reference to “political

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No. 04-2286 7
opinion” in §1101(a)(42)(A) as necessarily encompassing
forms of expression that may not have constitutional
protection even in the United States—and that are, if
protected at all, at or near the outer limit of the first
amendment’s coverage. The need for a public stance on
politics, as opposed to crime (which everyone is against
in the abstract), is a point we made in Marquez, which
sustained the agency’s order even though Marquez had
broadcast his complaint about corruption over the radio and
thereafter had been shot and pistol-whipped by a colonel.
105 F.3d at 377, 381. Musabelliu’s case is easier.
How far to press the “political opinion” clause of the
statute is a matter principally committed to the agency,
whose understanding must be accepted unless it exceeds
the interpretive leeway delegated by Congress. See INS v.
Cardoza-Fonseca, 480 U.S. 421 (1987). Unfortunately the
Board of Immigration Appeals, while agreeing with the
immigration judge that Musabelliu had not established
persecution “on one of the statutorily protected grounds,”
did not spell out its reasoning or refer to any other opin-
ion in which that subject had been explicated. We therefore
cannot be sure that it meant to address the scope
of “political opinion” in the statute or had some other
rationale.
Although a conclusion that private communications to
a military commander, a cabinet member, and a public
prosecutor about potential crimes are not a form of “political
opinion” could be an allowable understanding of the statute,
this may not have been the Board’s resolution. We therefore
do not rely on this aspect of the Board’s disposition; an
agency must take a stance if it wants the court to rely on its
exercise of interpretive discretion. The Board’s conclusion
that Musabelliu has not shown a causal connection between
his speech and the later events is, however, wholly a matter
of fact, and is supported by substantial evidence.

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8 No. 04-2286
The petition for review is denied.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-27-06

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