(CN) - A divided 5th Circuit panel declined to review the asylum request of an Albanian woman and her son whose family planned to help U.S. investigators take down a mobster suspected of human trafficking. If removed to Albania, the woman says they may be tortured by the mobster, who has recently shot her husband and kidnapped her nieces.
Rudina Demiraj's husband, Edmond, was to be a material witness in the federal prosecution of Bill Bedini, whom U.S. District Judge James Dennis described in a dissenting opinion as "a powerful person capable of brutal violence."
Bedini and Edmond had been in the U.S., but the mobster also had associates in Albania to do his bidding, according to the ruling.
Fearing for her family's safety after Edmond agreed to cooperate with the U.S. government in its investigation of Bedini's involvement in human smuggling, Rudina arranged to escape with her son, Rediol, to the United States in late 2000.
They formally applied for asylum a year later under federal torture conventions, but an immigration judge and appeals board found that the Demirajes were ineligible for such relief and denied that request. Immigration and Naturalization Services immediately began removal proceedings against them in October 2003.
Bedini had fled Albania to avoid prosecution around that time, so Edmond never actually testified against him. When INS deported Edmond back to Albania, Bedini and his associates kidnapped the would-be witness and his brother, beat them, and then shot Edmond at close range.
Edmond recovered from his injuries, but Albanian police declined to investigate the attack. Within a month, Edmond escaped to the United States himself and was granted a withholding from removal.
In the meantime, Bedini stepped up his campaign of terror against the Demiraj family, kidnapping Edmond's nieces whom he forced into prostitution, threatening Edmond's parents who have since gone into hiding and causing the brother he abducted to flee to Greece.
Bedini abducted three of Edmond's nieces in two separate attacks. He brought the two older sisters to Italy, beat them and tied them up until they agreed to work the streets. He later abducted the girls' younger sister and put her through the same ordeal in Germany. All three managed to escape and eventually won asylum in the U.S.
Rudina and Rediol appealed to the 5th Circuit after the immigration board denied relief to them again when they reopened their case with "these new facts, along with evidence of the interfamilial 'blood feud' culture in Albania," according to the appellate court's majority opinion, written by Judge Catharina Haynes.
The court's three-judge panel voted 2-1 to reject the Demirajes' petition for review.
Haynes noted that the immigration board found that "even crediting all of the petitioners' evidence, Mrs. Demiraj and her son could not demonstrate that any persecution they might suffer in Albania was 'on account of' their membership in the Demiraj family within the meaning of the [asylum or withholding of removal] statute and regulation."
"The core of this case instead is the question of whether Mrs. Demiraj's evidence showed that she reasonably feared persecution or likely would be persecuted 'on account of' her family membership," the ruling states.
According to the immigration board, there is distinction between persecution for belonging to a social group and personal motivation, like a vendetta.
"The crucial finding here is that the record discloses no evidence that Mrs. Demiraj would be targeted for her membership in the Demiraj family as such," Haynes wrote (emphasis in original). "Rather, the evidence strongly suggests that Mrs. Demiraj, her son, and Mr. Demiraj's nieces were targeted because they are people who are important to Mr. Demiraj - that is, because hurting them would hurt Mr. Demiraj. No one suggests that distant members of the Demiraj family have been systematically targeted as would be the case if, for example, a persecutor sought to terminate a line of dynastic succession."
Rudina would also not find safety if she divorced Edmund and denounced the Demiraj name, the Haynes found.
"The record here discloses a quintessentially personal motivation, not one based on a prohibited reason under the INA," the ruling states, referring to the Immigration and Nationality Act. "Thus, the record in this case does not compel us to reject the [Board of Immigration Appeals] BIA's determination here."
Rudina and Rediol are also not protected under the U.N. torture convention, the majority found, since it is not "more likely than not" that the Demirajes will be tortured upon removal and since the Demirajes did not prove the torture would occur with the consent of the Albanian government.
The Demirajes only showed that Edmund had difficulty convincing the local police to investigate when Bedini shot him.
"The standard for acquiescence ... requires an official to be aware of ongoing torture and likely to refuse to act to intervene and prevent the torture as it is occurring," Haynes wrote. "No such evidence was presented here."
In Dennis' dissent, the judge wrote that her colleagues ignored their "moral obligation" to protect the Demirajes.
"Family membership is a characteristic that a person either cannot change (if he or she is related by blood) or should not be required to change (if he or she is related by marriage)," Dennis wrote. "The purpose of the asylum law is to honor a moral obligation to protect people who are threatened with persecution because of the characteristics like these."
Dennis pointed out that the 5th Circuit majority and the immigration board "did not dispute that membership in a family meets the criteria" in the 2002 case, Ontunez-Tursios v. Ashcroft. The 7th Circuit also came to the same "conclusion in 2008 with Torres v. Mukasky, which Dennis wrote was "indistinguishable" from the Demirajes' case.
"The majority has created a circuit split and put our court on the wrong side of it," Dennis wrote. "I therefore dissent."