A decade ago, Edmond Demiraj agreed to testify against an Albanian mobster charged with human smuggling.  He claimed that, in exchange for his testimony, federal prosecutors promised to keep him and his family safe.  The mobster, Bill Bedini, fled the country before his trial, and so the federal government had no need for Mr. Demiraj’s testimony.  He was deported to Albania.

In Albania, Mr. Bedini was waiting.  He kidnapped, beat, and shot Mr. Demiraj, who eventually recovered and made his way back to the U.S.  This time, he was granted Withholding of Removal.

Meanwhile, an Immigration Judge and the BIA denied asylum to Mr. Demiraj’s wife and son, and ordered them deported.  The pair reopened their case after Mr. Demiraj was shot in Albania and after Mr. Bedini kidnapped some other relatives and trafficked them to Italy.  The wife and son claimed that if they returned to Albania, Mr. Bedini would harm them on account of their particular social group–membership in the Demiraj family.  The case was again denied and finally reached the Fifth Circuit, which affirmed the BIA and ordered Mrs. Demiraj and her son deported to Albania.

While the Fifth Circuit agreed that “family” could constitute a “particular social group,” it reasoned that Mr. Bedini did not seek to harm Mrs. Demiraj and her son “on account of” her membership in the Demiraj family.  Rather, Mr. Bedini wanted to harm her and her son in retaliation for Mr. Demiraj’s cooperation with the United States government:

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. Rather, the evidence strongly suggests that Mrs. Demiraj, her son, and Mr. Demiraj’s nieces [who were trafficked to Italy] 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.  Nor does the record suggest that the fact of Mr. and Mrs. Demiraj’s marriage and formal inclusion in the Demiraj family matters to Bedini; that is, Mrs. Demiraj would not be any safer in Albania if she divorced Mr. Demiraj and renounced membership in the family, nor would she be any safer if she were Mr. Demiraj’s girlfriend of many years rather than his wife. The record here discloses a quintessentially personal motivation, not one based on a prohibited reason under the INA.

Mrs. Demiraj and her son filed a petition for certiorari with the Supreme Court.  They were supported by a number of amicus briefs, including one by former law enforcement officials.  That brief takes the position that Mr. Demiraj’s family members are a “particular social group” and that they will be persecuted because Mr. Bedini seeks to harm all members of Mr. Demiraj’s family.  Further, the brief expresses concern that “civilians very likely will not cooperate [with law enforcement officers] when they fear that doing so would put their families in danger.”  The Fifth Circuit’s decision would obviously discourage such cooperation.

In the end, the petition for certiorari was withdrawn.  DOJ–after requesting 10 continuances to respond to the cert petition–finally agreed to grant asylum to Mr. Demiraj and his family.  The result is certainly a relief to the Demiraj family.  But the bad news is that the Fifth Circuit’s exceedingly narrow definition of “family” as a “particular social group” remains on the books. 

Congratulations to Joshua Rosenkranz of Orrick, Herrington & Sutcliffe, LLP, who represented the Demiraj family.