“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.
Trump Fifth Circuit judge James Ho wrote a decision upholding the denial by the Board of Immigration Appeals (BIA) of an asylum application from an Albanian citizen who was physically attacked and threatened with death three times by the country’s ruling Socialist Party because of his support for another party. The August 2020 case is Gjetani v. Barr.
Xhino Gjetani is an Albanian citizen who supports the Albanian Democratic Party, a rival of the country’s ruling Socialist Party. Members of the Socialist Party threatened to kill him because of his political views three times during the summer of 2017, including one time when he and his father were attacked with a “sharp metal object” and he suffered injuries and had to have stitches. In December, several months after the Socialist Party had won in another election, he left Albania and sought asylum in the US, contending that he feared that he would be “persecuted, beaten and killed” because of his political beliefs if he returned to Albania.
An Immigration Judge (IJ) denied the application, claiming that these “three incidents did not constitute persecution” and that his fear was not “objectively reasonable.” The BIA adopted and affirmed the IJ decision and Gjetani sought review in the Fifth Circuit.
Trump judge Ho wrote a 2-1 decision denying Gjetani’s appeal. Although Ho agreed that what was done to Gjetani was “repugnant,” he gave “significant deference” to the BIA decision. Ho found that there was “substantial evidence” to support the conclusion that what happened to Gjetani did not amount to persecution and that his fear of future persecution was not objectively reasonable. Ho concluded that how the US deals with refugees is a “political decision for the political branches to make,” and that judicial relief would be inappropriate in this case.
Judge James Dennis firmly dissented. He criticized the majority for deciding that whether Gjetani had suffered “persecution” based on the “undisputed” record was a “factual question” that is subject only to the “deferential ‘substantial evidence’” standard of review. Instead, he explained, whether what happened to Gjetani falls within the definition of “persecution” under the asylum law was a “quintessential question of law” for the court to review, as the Fifth Circuit had previously held. Dennis noted that the record also showed that Gjetani had sought police protection, but “each time the police refused, citing his political affiliation.” What happened to Gjetani was not “isolated or unaccompanied by any physical” harm, Dennis continued, but was “more severe than what this court has identified as persecution in past cases.” Since a “rebuttable presumption” of future persecution is created when past persecution is shown, Dennis concluded, the case should at least have been sent back to the BIA for reconsideration.
As a result of Ho’s decision, however, that will not occur, and Gjetani will be sent back to Albania where he will likely face future persecution based on the record in his case. The decision is another example of a ruling by Trump judges that harms those seeking asylum in the US.