Rexhep Bejko v. Alberto R. Gonzales

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3872
R EXHEP B EJKO ,
Petitioner,
v.
A LBERTO R. G ONZALES ,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A76-785-860.
____________
A RGUED M AY 12, 2006—D ECIDED N OVEMBER 13, 2006
____________
Before M ANION , K ANNE , and R OVNER, Circuit Judges.
R OVNER , Circuit Judge. Petitioner Rexhep Bejko is a
native and citizen of Albania, who was detained while
attempting to enter the United States unlawfully, and
sought asylum and withholding of removal pursuant to
§§ 208(a) and 241(b)(3) of the Immigration and Nationality
Act, and protection under Article 3 of the United Nations
Convention Against Torture. The Immigration Judge (IJ)
denied him relief on all of those claims, and the Board of
Immigration Appeals (BIA) affirmed. He now appeals
that determination to this court.
Bejko alleges that he suffered past persecution, and that
he has a well-founded fear of future persecution, in Albania

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2 No. 05-3872
based on his membership in the Democratic Party in
Albania. At the hearing before the IJ, Bejko testified as to
a series of events in Albania that form the basis for his
asylum claim. He testified that he became a member of the
Democratic Party from its inception, and that he served on
the Board of Elections in Albania. On September 12, 1998,
Azim Hadjari, a member of parliament for the Democratic
Party, was killed by six gunmen outside Democratic Party
headquarters. Upon his death, chaos ensued in Tirana,
Albania, where Bejko lived. Hadjari’s funeral occurred two
days later in Tirana. Bejko attended the funeral, but not
the procession following it, and he acknowledged that
general chaos was present throughout Albania on the day
of the funeral. While at his home that evening, Bejko heard
noises such as gunshots in his backyard. He saw three
masked men in military uniform in his backyard. The
following morning, he discovered that his van had been
stolen. Bejko reported the incident to the police, and was
informed that based on his description of their clothing, the
perpetrators were probably state policemen assigned to the
investigation of crimes. Bejko filed a report with the police,
but stated that no action was taken against the perpetra-
tors.
On October 16, 1998, Bejko was summoned to the police
station to meet with an investigator. That investigator
accused him of participating in illegal demonstrations and
meetings for the Democratic Party. The investigator sought
information regarding the organizers of those meetings and
demonstrations, which Bejko did not provide. At the end of
the meeting, he was assessed a fine, but was permitted to
return home to obtain the funds to pay it. Although he
intended to return the next day to pay the fine, the police
came to his home before he was able to do so, and returned
him to the Tirana police station where he was again
accused of participating in illegal meetings and demonstra-
tions of the Democratic Party. When he again refused to

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No. 05-3872 3
inform as to the organizers, he was placed in a small cell.
He was held there for two weeks under primitive conditions.
He was provided an inadequate amount of food, which
included only lunch and dinner, and lost a significant
amount of weight during that time. He also was provided
minimal water, and was allowed to use the bathroom only
once a day. He was released on October 30, and walked the
three or four kilometers from the jail to his home. He did
not need medical treatment as a result of his confinement.
Bejko continued to work on behalf of the Democratic
Party following that confinement. On November 22, 1998,
a referendum was to be held in Albania on a proposed
constitution. Bejko was a representative of the Democratic
Party to the Election Board, which involved him in super-
vising the election and establishing the accuracy of the
voter registration list in an area near his home. He was
part of a three-member team that also included a member
of the Socialist Party and a member of the Balli Kombetar
Party, whose function was to travel house to house to verify
the voter registration list. During that process, the team
discovered discrepancies on the list, such as a deceased
person and two persons who had left Albania still on the
list. Bejko and the Balli Kombetar representative asserted
that those individuals needed to be removed from the list,
but that suggestion was met with much resistance from the
representative of the Socialist Party. On November 16,
1998, Gazmend Demi arrived at Bejko’s house, and told
Bejko’s wife that unless Bejko resigned from the election
commission, his home would be blown up. Bejko and his
family feared Demi, because he had a reputation as a
person who had committed crimes including murder, and he
ostensibly was protected by the Socialist Party. Bejko
resigned the next day, and five days later Bejko and his
wife departed for the United States.
Because the BIA summarily affirmed the IJ’s order, we
base our review on the IJ’s analysis. Balogun v. Ashcroft,
374 F.3d 492, 498 (7th Cir. 2004). In order to succeed on his

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4 No. 05-3872
claim for asylum, Bejko must demonstrate that he is unable
or unwilling to return to his country because of persecution
or a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social
group, or political opinion. 8 U.S.C. § 1101(a)(42)(A); Hanaj
v. Gonzales, 446 F.3d 694, 698 (7th Cir. 2006). If he has
demonstrated past persecution, he is entitled to a
rebuttable presumption of a well-founded fear of future
persecution. Id. We review the IJ’s adverse determination
under a highly deferential standard, reversing only if no
reasonable fact finder could fail to find that the petitioner
suffered from past or future persecution. Margos v. Gonza-
les, 443 F.3d 593, 597 (7th Cir. 2006); Diallo v. Ashcroft, 381
F.3d 687, 698 (7th Cir. 2004). It is irrelevant whether or not
this court would have reached the same conclusion if in the
IJ’s position. Only where the evidence compels a different
result may we reverse. Id.
That standard of review ultimately ordains the outcome
of this appeal. As the IJ recognized, Bejko based his
persecution claim on the following events: (1) the theft of
his van and the gunshots fired in the vicinity of his yard on
September 15; (2) the questioning at the police station on
October 16, resulting in the imposition of a fine; (3) the
return to the police station on October 17, culminating in
his confinement for a two-week period; and (4) the Novem-
ber 16 visit by Demi and the threat to his home and family.
The IJ was not required, however, to find that those
incidents constituted past persecution or the well-founded
fear of future persecution.
The events must be considered as a whole to provide the
context, as the IJ recognized in her thorough decision, but
the most serious allegations are undoubtedly the confine-
ment and the threat to his home. In Diallo v. Ashcroft, 381
F.3d 687, 698 (7th Cir. 2004), we reviewed the caselaw
in this circuit and recognized that “short detentions or
detentions without physical abuse seem to have been less

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No. 05-3872 5
apt to reach the ‘persecution’ threshold required by this
court.” Determination of whether a detention constitutes
persecution includes consideration of the circumstances as a
whole, including the length, frequency and conditions of the
confinement, and the severity of the treatment such as
whether there was physical or other abuse. Thus, in Asani
v. INS, 154 F.3d 719, 721 (7th Cir. 1998), we held that it
was likely that detentions were sufficiently serious to rise
above the level of mere harassment where the applicant
was detained for two weeks in a cell with only enough room
to stand, handcuffed to a radiator on the wall, and received
only one slice of bread and one glass of water a day, with
that detention resulting in the loss of his construction job,
and he was later detained again and beaten with fists and
a police stick, during which two teeth were knocked out. On
the other hand, in Dandan v. Ashcroft, 339 F.3d 567, 573-74
(7th Cir. 2003), we held that the IJ was not compelled to
find persecution where the applicant was detained for three
days without food, interrogated and beaten resulting in
a swollen face. The two week detention in this case cer-
tainly was not insignificant, and we do not minimize the
painfulness of the experience, but it was not accompanied
by physical abuse, and was not of a duration or frequency
that would compel a finding of past persecution. Although
he experienced some deprivations during his confinement,
he was provided with at least the minimal level of food and
water, and did not require any treatment upon his re-
lease—in fact acknowledging that he was able to walk 3 to
4 kilometers to his home at that time. Again, the question
before us is not whether such a confinement can constitute
past persecution, and we do not hold here that the described
confinement and threats are insufficient to constitute past
persecution as a matter of law. Instead, the only question
before this court is whether the IJ was compelled to find
that such confinement constituted past persecution. As we
noted in Dandan, that is “a high standard and one that is
properly difficult to meet without powerful and moving

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6 No. 05-3872
evidence.” Id. In light of the caselaw in this circuit holding
that confinement of such a nature is often not sufficient to
constitute past persecution, the IJ was not compelled to find
past persecution on these facts.
Of course, we do not view the confinement in isolation
from the other allegations; it is axiomatic that the evi-
dence of persecution must be considered as a whole, rather
than piecemeal. Cecaj v. Gonzales, 440 F.3d 897, 899 (7th
Cir. 2006). But the other allegations do not elevate the
circumstances to the level of past persecution as a matter of
law. There is no allegation that the theft of the van was tied
to his political views, and the questioning at the police
station was a relatively benign occurrence. The threat by
Demi, on the other hand, is more serious in nature. Threats
can constitute past persecution only in the most extreme
circumstances, such as where they are of a most immediate
or menacing nature or if the perpetrators attempt to follow
through on the threat. Boykov v. INS, 109 F.3d 413, 416
(7th Cir. 1997); Roman v. INS, 233 F.3d 1027, 1035 (7th
Cir. 2000). In the majority of cases, however, threats in and
of themselves will not compel a finding of past persecution.
Boykov, 109 F.3d at 416; Ahmed v. Ashcroft, 348 F.3d 611,
616 (7th Cir. 2003). “Rather, unfulfilled threats will fall
within that category of past experience more properly
viewed as indicative of the danger of future persecution.”
Boykov, 109 F.3d at 416.. We have also recognized, however,
that “[a] credible threat that causes a person to abandon
lawful political or religious associations or beliefs is persecu-
tion.” Kantoni v. Gonzales, 461 F.3d 894, 898 (7th Cir.
2006). In this case, Bejko did not point to any actions taken
by Demi to follow through with the threat. Rather, the
reputation of Demi was the critical factor that caused the
Bejkos to give the threat credence, and to fear that it would
be carried out. The IJ noted, however, that Bejko failed to
provide any corroborative evidence as to Demi’s reputation,
such as statements from his friends or family, including his

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No. 05-3872 7
brother who resided in the United States. The IJ could have
been more detailed in her consideration of the threat as an
aspect of past persecution, but in his briefs to this court,
Bejko discusses the threat only in a cursory manner in his
past persecution analysis, and has not developed any
argument that the threat was of an immediate or menacing
nature, or that it otherwise compelled a finding of past
persecution under the caselaw of this circuit. Accordingly,
Bejko has failed to demonstrate that the IJ was compelled
to find past persecution.
Bejko additionally challenges the IJ’s determination that
there was no well-founded fear of future persecution. As
support for that argument, Bejko relies at length on
portions of State Department reports. The government
pointed to those reports as well to demonstrate that the
country conditions had changed since Bejko’s departure.
The IJ determined that those reports refuted any threat
of future persecution to Bejko based on his involvement
in the Democratic Party. The United States Department
of State 2003 Country Report on Human Rights Practices
stated that recent elections throughout the country were
generally calm, and represented an improvement over
previous elections, with only a few isolated incidents of
irregularities. Furthermore, the United States Department
of State 2004 Profile of Asylum Claims and Country
Conditions noted the consensus that in recent years
Albanians had been able to freely exercise their right to
change their government through democratic means
including the ability to organize and campaign free from
government interference. The Profile further noted that any
fear of the secret police had diminished as a result of its
restructuring, increased level of professionalism, and lack
of involvement in political activity. Finally, the Profile
recognized that serious political repression existed in the
past, but noted that there had been no major outbreaks of
political violence since 1998, and that “the available

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8 No. 05-3872
evidences suggests that neither the Government nor the
major political parties engage in policies of abuse or
coercion against their political opponents.”
Bejko does not contend that those reports are inac-
curate, but instead argues that the IJ failed to consider
other portions of the reports favorable to his position. The
portions cited to this court by Bejko, however, do not
undermine the IJ’s conclusion. Bejko cites to the provisions
detailing the conditions of prisons, and treatment of
prisoners in general, but that is not relevant unless
the imprisonment resulted from political activity. The
Country Report, however, which discusses the treat-
ment of prisoners, also states that there were no con-
firmed cases of detainees being held for strictly political
reasons. Bejko’s reliance on general human rights issues
such as societal violence, discrimination against women and
children, and treatment of prisoners and the media does not
indicate that he has a well-founded fear of persecution
based on his political activities. Instead, the reports relied
on by the IJ indicate that after the violence and political
turmoil experienced in 1997 and 1998, the political process
became much more stable. The electoral process had
resulted in coalition government, with participation by both
the Democratic Party and the Socialist Party, among others.
See also Cecaj v. Gonzales, 440 F.3d 897, 900 (7th Cir.
2006)(noting that conditions in Albania have changed even
further, with the Democratic Party gaining control of the
government in 2005). The IJ properly focused on the report
as it related to the claim before her. The prior threat was
based on actions by Bejko as a member of the Democratic
Party and as a participant on the electoral committee in a
prior election, and subsequent elections have taken place in
a fairer environment. There was no testimony that any
adverse actions have been taken against him or his family
since the threat was issued, and the house that Demi had
threatened to blow up apparently remained untouched after

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No. 05-3872 9
Bejko fled, and in fact was later sold by his brother-in-law.
Bejko had testified that he remained in contact with friends
who told him that Demi still was seeking out Bejko, but the
IJ noted that he provided no letters or other corrobora-
tion from those friends as to whether Demi was still
alive, whether he was still interested in Bejko, and whether
he was still associated with the Socialist Party. Given the
changed political climate, the absence of any evidence that
Demi presented any continuing threat, and the tie of the
threat to the actions surrounding a distant election, the IJ
was not compelled to find a well-founded fear of persecu-
tion.
The remaining issue is whether the IJ committed revers-
ible error in failing to inform Bejko of his right to request
withdrawal of his application for admission. Bejko asserts
that the failure to inform him of that right pursuant to 8
C.F.R. § 1240.11(a)(2) and 8 U.S.C. § 1225(a)(4) violated his
due process rights. The government argues that Bejko failed
to demonstrate prejudice resulting from the alleged failure,
and we agree.
Bejko’s due process claim based on the IJ’s failure to
inform is reversible error only if he can demonstrate
prejudice arising from it, and he has failed to do so. Ramos
v. Gonzales, 414 F.3d 800, 804 (7th Cir. 2005); Feto v.
Gonzales, 433 F.3d 907, 912 (7th Cir. 2006). Bejko was
represented by counsel in the proceedings before the IJ, and
does not allege that he was actually unaware of that right
to withdraw his application for admission. Moreover, his
only allegation of prejudice before this court is that had he
been so informed, he “may have focused his endeavors on
obtaining it.” He thus does not argue that his actions below
would have been different in any way, nor does he assert
that he was in fact unaware of that right. Because he has
not alleged any prejudice that resulted from the IJ’s alleged
failure to inform him of his rights, this claim must fail.
A FFIRMED .

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10 No. 05-3872
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-13-06

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