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Hoxha v. Ashcroft - 319 F.3d 1179 (9th Cir. 2003)

Rule:

A reviewing court must uphold a Board of Immigration Appeals' determination that an alien is ineligible for asylum if it is supported by substantial evidence. The court may reverse only if the evidence is so clear that a reasonable factfinder would be compelled to conclude that alien has a well-founded fear of persecution.

Facts:

Petitioner Shpetim Hoxha, an ethnic Albanian male from what used to be the Kosovo region of Serbia, entered the United States as a student and overstayed his visa. In deportation proceedings he applied for asylum, 8 U.S.C. § 1158, and withholding of deportation, 8 U.S.C. § 1231(b)(3), the Board of Immigration Appeals (BIA) held that he was not eligible for either. Hoxha petitions for review.

Issue:

Did Hoxha provide evidence that compelled a finding that his fear was objectively reasonable?

Answer:

Yes

Conclusion:

The reviewing court found that substantial evidence supported the BIA's finding that Hoxha had not suffered past persecution. Although his experiences were disturbing and regrettable, they did not evince actions so severe as to compel a finding of past persecution. The unfulfilled threats against him constituted harassment rather than persecution. One incident of physical violence against him was not connected with any particular threat and there was no evidence indicating that the incident was officially sponsored. As for fear of persecution, the parties agreed that the alien met the subjective requirement by testifying credibly as to his fear of persecution; the disputed issue was whether he provided evidence that compelled a finding that his fear was objectively reasonable. The court held that the evidence he presented would have compelled any reasonable factfinder to conclude that his fear of future persecution was objectively reasonable at the time of his hearing. He demonstrated sufficient particularized risk to compel a finding in his favor. The court could not conclude that the evidence compelled a finding of a clear probability of future persecution.

The court reversed the decision of the BIA, and remanded the case so that it could exercise the Attorney General's delegated discretion whether to grant asylum, noting that the BIA may have wanted to consider any changed conditions in the country of origin in the four years since the applications were made.

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