Denada M. Bace v. John Ashcroft , United States Attorney General

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3909
D ENADA M. B ACE ,
Petitioner,
v.
J OHN A SHCROFT , U NITED S TATES A TTORNEY G ENERAL ,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A76-140-481
____________
A RGUED S EPTEMBER 25, 2003—D ECIDED D ECEMBER 18, 2003
____________
Before C UDAHY , R IPPLE , and K ANNE , Circuit Judges.
C UDAHY , Circuit Judge. Denada M. Bace petitions
for review of the Board of Immigration Appeals’ (BIA’s)
rejection of her and her husband’s application for asylum,
withholding of removal and relief under the Convention
Against Torture Act. We find that the BIA’s decision to deny
asylum was not supported by substantial evidence. We
therefore vacate the BIA’s order and remand for further
proceedings.

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2 No. 02-3909
1 The administrative record in this case will be designated as
“AR.” The appendix to the Petitioners’ brief will be referred to as
“App.”.
I. BACKGROUND
Petitioner Denada Bace and her husband, Erion Bace,
natives and citizens of Albania, entered the United States
on January 16, 1999, using fake Italian passports. AR 407. 1
Upon arriving in the United States, Mr. Bace indicated that
he came seeking asylum for political reasons. AR 407, 409.
On February 11, 1999, the Immigration and Naturalization
Service (INS) initiated removal proceedings, charging them
under the Immigration and Nationality Act (INA) §
212(a)(6)(C)(i) (fraud or willful misrepresentation) and §
212(a)(7)(A)(i)(I) (not in possession of a valid unexpired
immigration visa or other valid entry document). The Baces
requested asylum under INA § 208, 8 U.S.C. § 1158,
withholding of deportation under INA § 241(b)(3), 8 U.S.C.
§ 1231(b)(3) and withholding of removal under the United
Nations Convention Against Torture, 8 C.F.R. §
208.16(c)(3).
In 1995, Mr. Bace joined the Albanian Democratic Party.
AR 350. In a national election, the Democratic Party’s
chairman, Sali Berisha, won the presidency and retained
this position until 1997. In early 1997, the collapse of mas-
sive pyramid schemes and the resulting loss of many
Albanians’ life savings led to five months of chaos, violence
and near anarchy. AR 425. An agreement of all the major
political parties to hold early elections and the formation of
a government of national reconciliation, as well as the
creation of a multinational protection force, brought about
sufficient public order to conduct elections. Id. In the na-
tional election, a new government led by the Socialist
Party’s Fatos Nano was installed. AR 426. Albania’s

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No. 02-3909 3
Parliament, then dominated by the Socialist Party, pro-
posed a new constitution, and a national constitutional
referendum was conducted on November 22, 1998. AR 319,
366-67.
Mr. Bace was appointed by the Democratic Party to serve
on a commission to supervise and certify the referendum.
AR 319, 350. In this capacity, he observed incidents of
multiple voting, voting by persons not registered and voter
intimidation. AR 319, 351. While at the voting site, he
complained to other members of the commission of the open
fraud, but the Socialist Party representatives dismissed his
complaints. AR 352, 380-82. Thus, Mr. Bace and the deputy
chairman of the commission, who was also a representative
of the Democratic Party, left the site without certifying the
vote. AR 353, 382. Shortly after leaving, Mr. Bace was
accosted by eight masked men in two cars. AR 438. They
identified him as “the one who did not sign the report” and
“the one who wants justice.” AR 353-54, 382, 438. They then
proceeded to beat Mr. Bace and cut him with a razor. AR
353-54.
Believing that those who attacked him were being
protected by the state, Mr. Bace concluded that reporting
the incident to the police would be futile and instead he
wrote a complaint to the head of the Democratic Party. AR
354-55. However, on December 1, 1998, Mr. Bace was again
beaten by a group of four masked persons on the streets of
Tirana. The men said, “look at who’s coming, the new
politician, the hope of the country . . . and be careful not to
beat him very hard, because . . . he might even become the
president of Albania.” AR 356, 438. After this second attack,
Mr. Bace wrote a letter to another Democratic Party official,
a former Chairman in the Albanian Parliament, again
complaining of the situation and listing the names of people
whom he thought were generally involved in government
corruption. AR 357-58.

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4 No. 02-3909
Two days later, on December 3, 1998, Mr. Bace was again
beaten by masked persons who told him that he would
“suffer the consequences” of mentioning names and becom-
ing “too involved with the private lives of people.” AR 359,
438. After this third beating, Mr. Bace wrote to the Demo-
cratic Party’s new leader to complain. AR 360.
At about midnight on January 5, 1999, a number of
masked and armed men dressed in black came to Mr. and
Mrs. Bace’s home where they lived with Mr. Bace’s parents.
AR 361. The intruders claimed that they “were representing
the state” and sought to search for illegal weapons. Mr.
Bace asked to see a search warrant but the men forced their
way inside and one hit Mr. Bace in the stomach with the
butt of a rifle. AR 395. Mr. Bace’s father went to his aid but
was struck down with a blow to the head. When Mr. Bace
went to help his father, the masked men beat him. AR 396.
At that point, two of the intruders set upon Mrs. Bace and
raped her in front of her husband and her in-laws. AR 361-
62, 396. During the rape, one of the men said to Mr. Bace,
“you look for justice and we’ll show you what justice is . . .
.” AR 396. Shortly after this last attack on Mr. Bace and his
family, Mr. and Mrs. Bace acquired fake Italian passports,
traveled to the United States and requested asylum. AR
378, 404-17, 440-46.
One month later, the INS initiated removal proceedings
against the Baces. After hearing testimony from both Mr.
and Mrs. Bace, the Immigration Judge (IJ) denied their
requests for relief from removal and ordered them removed
to Albania. AR 316-27. The IJ made only three relevant
findings:
(1) The evidence does not lead to the conclusion that
any of the alleged attacks were politically motivated on
account of any of the letters which the male respondent
sent to various Democratic Party officials after each
incident, or to support his belief of complicity between

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No. 02-3909 5
2 Because the BIA’s affirmance was issued without opinion, the
proper object of our review is the IJ’s decision. See 8 C.F.R.
§ 1003.1(a)(7); see also Kharkhan v. Ashcroft, 336 F.3d 601, 604
(7th Cir. 2003).
the Democratic Party and the Socialist Party. Further-
more, the identities of the various alleged attackers has
not been established so as to conclude that the respon-
dents have an objectively reasonable fear of persecution
from either political party.
(2) All of the alleged incidents occurred within a one-
and-a-half month time frame in Tirana. The respon-
dents have thus not addressed the issue of internal
relocation elsewhere. (Citations omitted).
(3) The respondents have submitted no supporting
documentation concerning present-day Albania’s politi-
cal landscape so as to support any of their generalized
assertions concerning country conditions.
AR 324-35. The IJ’s opinion also seems to rely heavily on a
State Department report which indicated, in part, that in
Albania “[t]he settling of accounts persist (sic), but in-
dividuals are rarely targeted for mistreatment on political
grounds.” App. at 8 (emphasis added). The BIA affirmed
without opinion in an order dated October 4, 2002. 2
On November 4, 2002, the Baces’ attorney filed a petition
for review of the decisions below, which omitted Mr. Bace
from the petition. According to the Baces, this was an
inadvertent omission. On March 19, 2003, the Baces,
through a newly retained attorney, filed motions to reopen
with the BIA, attaching more recent evidence of persecution
against the Bace family and documentation of country
conditions. AR 7-275. On March 28, 2003, the BIA denied
the motions to reopen as untimely filed. AR 1-4. As the
Baces do not appeal the denial of the motions to reopen, we
have not considered this new evidence.

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6 No. 02-3909
II. DISCUSSION
A) Proper Parties
As a preliminary matter, we must decide who are the
proper parties to this appeal. Due to what according to the
petitioners was an inadvertent error on the part of their
former counsel, Mr. Bace’s name was left off their timely
filed petition. Although the INS concedes that Mr. and Mrs.
Bace are similarly situated, it argues that Mr. Bace has
waived his right to appeal. See Brief of Respondent at 2 n.2.
Even if Mr. Bace were not a proper party to this appeal,
however, the ultimate outcome would be the same because
under 8 U.S.C.A. § 1158(b)(3)(A), “[a] spouse or child . . . of
an alien who is granted asylum under this subsection may,
if not otherwise eligible for asylum under this section, be
granted the same status as the alien if accompanying, or
following to join, such alien.” See Tsevegmid v. Ashcroft, 336
F.3d 1231, 1233 n.2 (10th Cir. 2003) (finding that “[t]he wife
and son’s asylum request was encompassed within Mr.
Tsevegmid’s application”). Therefore we decline to take a
formalistic view of the petition in this case, and we find that
Mr. Bace’s appeal is encompassed within his wife’s. See,
e.g., Fed. R. App. P. 3(c)(4) (“[a]n appeal must not be
dismissed for . . . failure to name a party whose intent to
appeal is otherwise clear from the notice.”).
B) Asylum
This court has jurisdiction to review the order of the BIA
to deny asylum under 8 U.S.C. § 1252(a)(1). We review the
BIA’s factual determinations under the highly deferential
substantial evidence standard. See Tamas-Mercea v. Reno,
222 F.3d 417, 422 (7th Cir. 2000); Petrovic v. INS, 198 F.3d
1034, 1037 (7th Cir. 2000). We may not reverse the BIA’s
determination simply because we believe it was wrongly

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No. 02-3909 7
decided, but rather we must be compelled by the evidence
to reach that conclusion. Tamas-Mercea, 222 F.3d at 422;
Bradvica v. INS, 128 F.3d 1009, 1012 (7th Cir. 1997); Anton
v. INS, 50 F.3d 469, 472 (7th Cir. 1995).
1) Past Persecution
To qualify for asylum, the Baces must show that they are
refugees within the meaning of the INA by proving that
they were persecuted in the past on account of race, reli-
gion, nationality, membership in a social group or political
opinion, or alternatively, by proving that they have a well-
founded fear of future persecution on account of the same
reasons. See 8 U.S.C. § 1158(b)(1); 8 U.S.C. § 1101(a)
(42)(A); Ambati v. Reno, 233 F.3d 1054, 1059-60 (7th Cir.
2000). The issue of past persecution is particularly critical
here because of the presumption of a well-founded fear of
future persecution that applies if we find past persecution.
Dandan v. Ashcroft, 339 F.3d 567, 573 (7th Cir. 2003). A
finding of past persecution actually shifts to the govern-
ment the burden of rebutting the presumptive fear of future
persecution. See id.; 8 C.F.R. § 208.13(b)(1).
This Circuit has defined persecution as “punishment or
the infliction of harm for political, religious, or other rea-
sons that this country does not recognize as legitimate.”
Tamas-Mercea, 222 F.3d at 424 (quoting Mitev v. INS, 67
F.3d 1325, 1330 (7th Cir. 1995)); see also Ambati, 233 F.3d
at 1060. “Although the term ‘persecution’ includes actions
less severe than threats to life or freedom, ‘actions must
rise above the level of mere harassment to constitute per-
secution.’ ” Ambati, 233 F.3d at 1060 (citation omitted).
The Baces present a compelling case of past persecution.
After Mr. Bace witnessed serious voting improprieties and
refused to certify the vote, he was the subject of repeated
beatings over the course of a month. These incidents only
ended when the Baces fled the country. In each incident,
Mr. Bace was attacked by multiple assailants and in at

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8 No. 02-3909
least one incident he was attacked and cut with a razor.
During each assault, the assailants made statements sug-
gesting that the attack was politically motivated. It was the
last straw when a group of men broke into the Baces’ home,
beat Mr. Bace and his father and raped Mrs. Bace in front
of her husband, her father-in-law and her mother-in-law.
During the rape, the men said to Mr. Bace, “you look for
justice and we’ll show you what justice is.” AR 396.
The IJ’s cursory opinion did not make a specific credibility
ruling nor a specific finding on past persecution. Zhao v.
U.S. Dept. of Justice, 265 F.3d 83, 97 (2d Cir. 2001) (“Fail-
ure to explain a decision adequately presents a ground for
reversal.”). The IJ did note that:
The evidence does not lead to the conclusion that any of
the alleged attacks were politically motivated on
account of any of the letters which the male respondent
sent to various Democratic Party officials after each
incident, or to support his belief of complicity between
the Democratic Party and the Socialist Party. Further-
more, the identity of the various attackers has not been
established so as to conclude that the respondents have
an objectively reasonable fear of persecution from either
political party.
App. at 10-11. Whether any of the attacks were politically
motivated on account of Mr. Bace’s letters, however, is not
central to a finding of politically motivated past persecu-
tion. The IJ ignored clear evidence in the record that the
attacks were motivated by Mr. Bace’s membership in the
Democratic Party and his refusal to certify the vote. The
attacks began occurring only after Mr. Bace refused to cer-
tify the vote, and during every attack, the assailants made
statements suggesting the attacks were politically moti-
vated.
Mr. Bace’s inability to identify his attackers in this case
is not critical to a determination of past persecution. There

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No. 02-3909 9
3 The text of the statute, itself, implies that persecution need not
be sponsored or directed by the government:
(i) In cases in which the applicant has not established past
persecution, the applicant shall bear the burden of establish-
ing that it would not be reasonable for him or her to relocate,
unless the persecution is by a government or is government-
sponsored.
(ii) In cases in which the persecutor is a government or is
government-sponsored, or the applicant has established per-
secution in the past, it shall be presumed that internal relo-
cation would not be reasonable, unless the Service establishes
by a preponderance of the evidence that, under all the
circumstances, it would be reasonable for the applicant to
relocate.
8 C.F.R. § 208.13(b)(3) (emphasis added).
is no rule requiring that persecution actually be directed by
the state or by an organized political party. See 8 C.F.R. §
208.13(b)(3) 3 ; Roman v. INS, 233 F.3d 1027, 1034 (7th Cir.
2000) (noting that an applicant must only show that the
government condoned persecution or demonstrated an
inability to protect victims); Chitay-Pirir v. INS, 169 F.3d
1079 (7th Cir. 1999) (finding that terror committed by a
four-member local “civil defense patrol” could be the basis
of past persecution); Andriasian v. INS, 180 F.3d 1033,
1042-43 (9th Cir. 1999) (finding that threats by “thugs”
could be the basis of past persecution where the government
could not or would not control the threat); Sangha v. INS,
103 F.3d 1482, 1487 (9th Cir. 1997) (finding a possibility of
past persecution where petitioner was threatened by a
“terrorist group the government is unable to control”). Even
if it were a requirement that persecution actually be
directed by the state, the proximity of the attacks to the
time Mr. Bace failed to certify the vote, as well as the
comments made by his attackers, suggest that the attacks
were likely directed by members of the Socialist Party.

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10 No. 02-3909
Regardless, the attackers clearly had a political motivation.
We believe the Baces have presented ample evidence of past
persecution on account of political opinion.
While every asylum case involves unique facts, this case
bears some resemblance to Chouchkov v. INS, 220 F.3d
1077 (9th Cir. 2000). In Chouchkov, the petitioner was a
Russian nuclear engineer who objected to a government-
approved deal to sell nuclear technology to Iran. Id. at 1080.
As a result, he received threatening phone calls, his car was
rear-ended, stolen and his father was injured in a hit-and-
run. Id. at 1081. After each of these incidents, the petitioner
received phone calls linking the event to his objection. The
Ninth Circuit reversed the BIA’s adverse finding with
respect to past persecution, finding that its decision was not
supported by substantial evidence. Id. at 1084. We believe
that the Baces’ case of past persecution is at least as strong,
if not stronger, than the petitioner’s claim in Chouchkov.
At oral argument, the government argued that the IJ
properly denied asylum because the Baces’ evidence of past
persecution was “contradicted” by the State Department
report on Albania. If the IJ did make such a finding, it was
not mentioned in his written opinion. We hope, however,
that this was not the basis of the IJ’s decision because it
would be improper to find that a witness’s testimony about
specific events could be “contradicted” by a generalized
State Department report broadly discussing conditions in
the applicant’s country of origin.
It is unrealistic to expect that country condition reports
could contain references to all citizens of that country
who have faced, or might face, persecution on one of the
specified grounds. While country reports may, in rare
instances involving prominent dissidents, contain direct
corroboration of a petitioner’s account, to demand that
they do so and otherwise eschew any analysis of the
evidence is clearly erroneous.

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No. 02-3909 11
El Moraghy v. Ashcroft, 331 F.3d 195, 204 (1st Cir. 2003);
see also Galina v. INS, 213 F.3d 955, 959 (7th Cir. 2000)
(“[T]he [State Department] reports are brief and general,
and may fail to identify specific, perhaps local, dangers to
particular, perhaps obscure, individuals.”); Ladha v. INS,
215 F.3d 889, 899 (9th Cir. 2000). Moreover, the State
Department report, to which the government referred, ac-
tually tended to support a finding of past persecution,
concluding that in 1998, “Democratic Party members were
indeed the victims of numerous attacks and murders, but in
Albania’s general atmosphere of lawlessness and lax law
enforcement, neither culprits nor motives were ever found
or confirmed for most of these crimes.” See AR at 422.
For these reasons, although the BIA failed to make an
express finding with respect to past persecution, any de-
termination that the Baces were not the victims of past
persecution on account of Mr. Bace’s political opinion is not
supported by substantial evidence. Any reasonable finder of
fact would be compelled to conclude that the Baces were the
victims of persecution such that their lives or freedom were
threatened on account of Mr. Bace’s political opinion.
2) Well-Founded Fear of Future Persecution
Because the Baces properly established past persecution,
the IJ should have shifted to the INS the burden of re-
butting the presumptive fear of future persecution. See
Dandan, 339 F.3d at 573; 8 C.F.R. § 208.13(b)(1). The IJ’s
opinion contains nothing explicit on the burden of making
a showing of fear of future persecution, but the implication
is that it remained with the petitioners. App. at 11 (finding
that the “respondents have thus not addressed the issue of
internal relocation elsewhere” and “have submitted no sup-
porting documentation concerning present-day Albania’s
political landscape. . . .”)

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12 No. 02-3909
Reading the IJ’s opinion in the light most favorable to the
respondent, we note that it found that the following three
factors suggested that the Baces did not have a well-
founded fear of future persecution: (1) they did not know
the identities of their attackers; (2) they did not address the
issue of internal relocation outside of Tirana; and (3) they
submitted no evidence concerning present-day Albania’s
political landscape.
With respect to the identities of their attackers, the fact
that the Baces do not know specifically who attacked them
does not in itself make future persecution any more or less
likely. It is true that if this information were known, it
might be easier to determine the likelihood of attacks being
repeated in the future. But the difficulty engendered by the
absence of this information falls upon the party who bears
the burden of showing the likelihood of future persecution,
which, as we have noted, has become the government. Not
surprisingly, the government has also failed to produce any
evidence regarding the identities of the Baces’ attackers.
Thus, the fact that their attackers have not been identified
should not be weighed against the Baces in determining
whether they have a well-founded fear of future persecu-
tion.
Similarly, with respect to internal relocation, it was the
government’s burden to show that it was reasonable to
expect the Baces to move elsewhere in Albania. See 8 C.F.R.
§ 208.13(b)(2)(ii); Melkonian v. Ashcroft, 320 F.3d 1061,
1070 (9th Cir. 2003) (“[T]he burden is on the INS to demon-
strate by a preponderance of the evidence . . . that the
applicant can reasonably relocate internally to an area of
safety.”) (emphasis added). In order to determine the
reasonableness of internal relocation, the IJ was required
to consider “whether the applicant would face other serious
harm in the place of suggested relocation; any ongoing civil
strife within the country; administrative, economic, or ju-
dicial infrastructure; geographical limitations; and social

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No. 02-3909 13
and cultural constraints, such as age, gender, health, and
social and familial ties.” 8 C.F.R. § 208.13(b)(3). The State
Department report which refers to “a glut of firearms,
extreme poverty . . . and extrajudicial killings . . . through-
out the country” does not, in itself, establish that relocation
would be reasonable in this case. AR 422. Moreover, the
mere fact that all of the alleged incidents occurred within a
one-and-a-half month time frame in Tirana does not
establish that relocation would be reasonable.
Finally, we turn to Albania’s present-day political land-
scape. As we noted earlier, it appears that the IJ improperly
placed the burden on the Baces to show that the dangerous
conditions of former Albania persist. Further, it appears
that the IJ misconstrued the need for corroborative evi-
dence, finding that “[a]s the basis for an asylum claim
becomes less focused on specific events involving the alien
personally . . . corroborative evidence . . . may become
essential.” App. at 11 n.1. The present claim, however, is
not directed at broad allegations regarding general condi-
tions in the aliens’ country of origin. See Matter of Dass, 20
I&N Dec. 120 (BIA 1989). To the contrary, this asylum
claim is based almost entirely on specific events personally
involving the Baces. Thus, the need for corroborative evi-
dence—particularly of a general nature—was not pressing.
As we read the IJ’s opinion, it appears that the entire
finding that the Baces failed to show a well-founded fear of
future persecution rests on a portion of the 1998 State
Department profile, which states, in part, that “[t]he
settling of accounts persist (sic), but individuals are rarely
targeted for mistreatment on political grounds.” App. at 5
(emphasis added). As we noted earlier, however, this same
State Department report indicates that “Democratic Party
members were indeed [in 1998] the victims of numerous
attacks and murders, but in Albania’s general atmosphere
of lawlessness and lax law enforcement, neither culprits nor
motives were ever found or confirmed for most of these

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14 No. 02-3909
4 Because we vacate the BIA’s denial of asylum, we need not
reach the question of the BIA’s denial of petitioners’ claim for
withholding of removal or the petitioners’ claim under the
Convention Against Torture.
crimes.” AR at 422. Ultimately, we think this particular
State Department report to be an inadequate basis for
denial of asylum given the egregious facts of this petition.
See, e.g., Galina, 213 F.3d at 958 (finding that the board
erred by giving conclusive weight to the State Department
country report’s statement that Latvia had a “free and fair”
parliamentary election in 1996 and that human rights in
Latvia are “generally respected”); Kataria v. INS, 232 F.3d
1107, 1115 (9th Cir. 2000) (finding that a State Department
Profile which, inter alia, described the level of violence in
the country of origin as “only ‘lower,’ ” was not enough to
rebut the presumption of a well-founded fear). On remand,
we expect that this State Department report will be given
the weight it is due. See Galina, 213 F.3d at 959 (warning
that State Department reports warrant a “healthy skepti-
cism” and the BIA should not treat them as “Holy Writ”).
III. CONCLUSION
We therefore V ACATE the BIA’s order and R EMAND for
further proceedings in accordance with this opinion. 4 See
INS v. Ventura, 537 U.S. 12, 16-17 (2002) (holding that
absent rare circumstances, it is not appropriate for a court
of appeals to grant asylum in the first instance). Although
the choice of a hearing officer is left to the discretion of the
BIA, we urge the BIA to assign a different judge to the
Baces’ case on remand. Cf. Circuit Rule 36 of the United
States Court of Appeals for the Seventh Circuit; see also
Georgis v. Ashcroft, 328 F.3d 962, 970 (7th Cir. 2003). Most
importantly, because the evidence of past persecution is
persuasive, the burden is on the respondent to negate the

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No. 02-3909 15
existence of a well-founded fear of future persecution.
Further, the BIA may allow the parties to supplement the
record with evidence addressing such issues as internal
relocation, Albania’s present-day political landscape, and
the threat of future persecution. See Chitay-Pirir, 169 F.3d
at 1081 (requesting that the Board supplement the record
on remand with evidence of the current state of affairs in
Guatemala); Surita v. INS, 95 F.3d 814, 821 (9th Cir. 1996)
(“On remand, the BIA should allow the parties to supple-
ment the record with evidence of current conditions in Fiji,
and determine whether the INS can rebut, by a preponder-
ance of the evidence, the regulatory presumptions regarding
eligibility for asylum . . . .”); Castaneda-Hernandez v. INS,
826 F.2d 1526, 1531 (6th Cir. 1987) (“Finally, since we are
remanding for other reasons, the Board should supplement
the record in order to evaluate how present conditions in El
Salvador affect petitioner’s claim.”).
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-18-03

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