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Voci v. Gonzales

June 6, 2005

ALKET VOCI, PETITIONER
v.
ALBERTO GONZALES,* ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT



On petition for review of a final order of the Board of Immigration Appeals File No: A79-098-188

The opinion of the court was delivered by: Smith, Circuit Judge

PRECEDENTIAL

* Attorney General Gonzales has been substituted as respondent pursuant to Fed. R. App. P. 43(c).

Argued May 5, 2005

Before: MCKEE, SMITH, and VAN ANTWERPEN, Circuit Judges

OPINION OF THE COURT

Appellant Alket Voci, a native of Albania, appeals a decision of the Board of Immigration Appeals ("BIA"), in which the BIA affirmed the Immigration Judge's ("IJ's") denial of Voci's application for asylum, withholding of removal, and protection under the United Nations Convention Against Torture ("CAT"). *fn1 The BIA rejected the IJ's determination that Voci lacked credibility, but agreed nonetheless that Voci had failed to demonstrate eligibility for asylum or for other relief. Because Voci's testimony has been accepted by the BIA as credible, we hold that the BIA erred in determining that the incidents of police mistreatment described by Voci did not rise to the level of persecution under the Immigration and Nationality Act ("INA"). While we take no position concerning whether Voci will ultimately be entitled to the relief he seeks, the absence of analysis in the BIA's decision requires remand to the BIA, in order to permit the BIA explicitly to address the issues implicated by Voci's application for asylum. In addition, if upon remand Voci is able to establish that he suffered past persecution, it may be appropriate for the agency to address whether the government has shown that conditions in Albania have changed, such that Voci no longer has a reasonable fear of facing persecution if he were to return.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Voci's Testimony

Voci testified extensively concerning his background and family history in Albania. While Voci discussed various forms of mistreatment that his grandfather experienced under the Communist regime, these issues have little bearing on Voci's eligibility for asylum. With respect to his own persecution, Voci testified that in 1990 he became involved in the "democracy movement" that was taking hold in Albania. Voci indicated that he and other students at his high school, along with four professors, began holding meetings to discuss ways in which they could seek democratic reform. Voci indicated that the movement grew over time, and on February 20, 1991, a large protest rally was held in Korca, Albania. At this rally, protesters pulled down a large statue of Enver Hoxha, a former Communist Prime Minister of Albania. Voci testified that he was beaten by police officers at this protest, and he suffered cuts which required stitches, ultimately resulting in a lengthy hospital stay when his wounds became infected.

Voci testified that during the early 1990s, as the Democratic Party gained power and influence, he and other activists received a number of anonymous threatening letters warning them to cease their political activities. Voci also indicated that from 1990 through 1994, the police repeatedly came to his home searching for him, and they threatened his mother with harm if Voci did not cease his political activities. Voci explained that the police had videotaped the February 20, 1991, protest rally in Korca, and by reviewing these videotapes they identified Voci as one of the leaders of the rally. Along with the visits to his home, Voci also indicated that on several occasions during this same period the police came to his school looking for him, and that on these occasions Voci managed to get out of the school building without being caught.

The Democratic Party won elections in 1994, but according to Voci this did not end his persecution by the police. Voci indicated that in the years leading up to 1997, when the Socialist Party regained power, he was beaten up on many occasions by the police. Voci testified that seven of these beatings were severe, resulting in bleeding and scars. Three of these beatings occurred in connection with demonstrations in which Voci participated, and four occurred on occasions when the police accosted Voci on a street or alleyway as he walked through town. On one occasion, the police beat Voci with the blunt end of a gun, breaking his knee and causing Voci to spend several weeks in the hospital.

Voci testified that the Socialist Party regained power in 1997, and that its leadership was comprised of former Communist Party officials operating under a new name. Voci stated that he continued to face persecution after the Socialists regained power in 1997, culminating in a 1998 incident in which the police came to his parents' house, destroyed a number of the family's belongings, and beat Voci, his mother, and his sister. Voci also explained that during the mid to late-1990s he faced police harassment in connection with a restaurant that he operated with a friend and fellow Democratic Party activist. Police would come to the restaurant, harass and threaten patrons, break glasses and windows, and generally disrupt the business. Voci indicated that although the men who beat him and attacked his restaurant were often dressed in plain clothes, he recognized them as local police officers. Voci indicated that as a result of the ...


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