Muska v. Holder ( 2009 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 08-2196
GENTIAN MUSKA,
Petitioner,
v.
ERIC H. HOLDER, JR.,* ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Selya and Howard, Circuit Judges
Jose A. Espinosa on brief for the petitioner.
Imran R. Zaidi, Attorney, Office of Immigration Litigation,
Tony West, Assistant Attorney General, Civil Division, and Stephen
J. Flynn, Assistant Director, Office of Immigration Litigation, on
brief for respondent.
August 7, 2009
*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Eric H. Holder, Jr. has been substituted for former Attorney
General Michael B. Mukasey as the respondent.
LYNCH, Chief Judge. Gentian Muska, a native and citizen
of Albania, petitions for review of an August 13, 2008 decision by
the Board of Immigration Appeals ("BIA") adopting the findings of
the Immigration Judge ("IJ") and issuing a final order of removal.
We deny his petition in part and dismiss it in part.
I.
Gentian Muska arrived in the United States on October 16,
1999 with a valid B-2 visa obtained from the United States Embassy
in Greece. As of April 16, 2000, he overstayed his visa. Over a
year later, on July 23, 2001, Muska filed an application for
asylum, withholding of removal, and protection under the Convention
Against Torture ("CAT") with the Immigration and Naturalization
Service ("INS"). INS did not grant this application and Muska was
referred to an Immigration Court for removal proceedings where, on
April 24, 2002, he conceded removability but also renewed his
application for asylum, withholding of removal, and protection
under the CAT. He filed a new application with the Immigration
Court on June 16, 2005.
At the March 3, 2006 hearing on the merits of his claims,
Muska withdrew his asylum application because it was untimely, but
presented evidence to support his other claims. After reviewing
the evidence, the IJ denied the claims.
The IJ found Muska "not credible with regard to key
elements of his claim." Even assuming credibility, the IJ found
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that Muska had not met his burden to receive withholding of removal
by showing past persecution by the government or individuals or
organizations controlled by the government. Specifically, the IJ
concluded that a 1997 attack by unidentified persons on Muska's
family home, which caused him and his family to flee the country,
and a 1999 fight Muska participated in at a café while on a brief
visit to Albania from Greece, purportedly instigated by Socialists
because of his political affiliation with Albania's Democratic
Party, did not constitute persecution. The IJ also concluded that
Muska's account of the 1999 café incident as well as his testimony
that he was sure he would be persecuted by unidentified groups was
insufficient to establish a well-founded fear of future
persecution. In doing so, the IJ took notice of a 2004 State
Department report describing a more stable political environment in
Albania and reporting that the Democratic Party at that time
controlled the executive branch of the Albanian government. The IJ
also rejected Muska's CAT claim, noting that "[t]here is no
evidence in the record of proceedings nor any presented at the
hearing on the merits to suggest that the respondent has any reason
to fear torture." Finally, the IJ rejected an application for
voluntary departure because Muska expressed a reluctance to leave
the country, even if ordered to do so.
On September 29, 2006, Muska filed a notice of appeal
with the BIA. In an opinion dated August 13, 2008, the BIA affirmed
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the IJ's decision. The BIA found no clear error in the IJ's finding
that Muska was not credible, and noted that Muska's brief failed to
address the specific inconsistencies identified by the IJ. The BIA
also agreed with the IJ's alternate conclusion that even if
credible, Muska could not receive withholding of removal because he
failed to establish either past persecution or a clear probability
of future persecution by the Albanian government. It noted that
Muska had failed to cite any legal authority that might suggest that
the 1997 and 1999 incidents were sufficient evidence to meet his
burden, and that the brief did not address the IJ's findings with
regard to changes in the Albanian government after 1997. The BIA
rejected Muska's claim for relief under the CAT and request for
voluntary departure, because his brief presented no substantive
arguments on either issue.
Muska filed a petition for review with this court.
II.
Where, as here, the BIA adopts or defers to the
Immigration Court's findings and also discusses some of the
underlying bases for the decision, we review the decisions of both
the BIA and the IJ. Zheng v. Gonzales, 475 F.3d 30, 33 (1st Cir.
2007).
We review agency findings of fact under the deferential
"substantial evidence" standard. Sinurat v. Mukasey, 537 F.3d 59,
61 (1st Cir. 2008). This standard requires that we treat
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administrative findings of fact as "conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary." 8
U.S.C. § 1252(b)(4)(B). To revise the agency's findings, "we must
be persuaded that 'the evidence not only supports that conclusion,
but compels it.'" Khem v. Ashcroft, 342 F.3d 51, 53 (1st Cir. 2003)
(quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992)).
A. Withholding of Removal
The BIA's denial of withholding of removal is supported
by record evidence both that Muska's testimony was not credible and
that, even if the testimony were deemed credible, it failed to meet
the burden for withholding of removal. These two independent bases
lead to denial of the petition as to the withholding claim.
In his petition before this court, Muska has not briefed
the credibility issue and so any challenge to the IJ's findings is
waived. Tower v. Leslie-Brown, 326 F.3d 290, 299 (1st Cir. 2003).
That alone would require us to deny the petition. But we go on to
affirm the BIA's alternate holding.
In order to obtain withholding of removal under 8 U.S.C.
§ 1231(b)(3), the applicant has the burden of proving that "his or
her life or freedom would be threatened in the proposed country of
removal on account of race, religion, nationality, membership in a
particular social group, or political opinion." 8 C.F.R.
§ 1208.16(b). To meet this standard, an applicant must show that
it "is more likely than not" that he or she would suffer persecution
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if removed. 8 C.F.R. § 1208.16(b)(2); De Oliveira v. Mukasey, 520
F.3d 78, 79 (1st Cir. 2008). However, an applicant is also entitled
to a rebuttable presumption of future persecution if he or she can
demonstrate past persecution on protected grounds. 8 C.F.R.
§ 1208.16(b)(1); Orelien v. Gonzales, 467 F.3d 67, 71 (1st Cir.
2006).
Muska's argument that he has experienced past persecution
was based on the 1997 attack on his home and the 1999 café incident.
Testifying about the 1997 attack before the IJ, Muska suggested that
the attack was retribution for a decision by his father, at that
time a colonel in the Albanian military, to disobey orders to fire
on "innocent people." Yet as the IJ and BIA noted, Muska could not
identify the culprits, he provided only vague suggestions of their
possible motives, and in any case, the events occurred during a time
of general unrest.
Regarding the 1999 café fight, Muska also provided vague
details as to the identity of his attackers and their motives for
attacking him. He described them as "Socialist people" and said
that they approached him because they knew his father and that Muska
was a member of the Democratic Party. This evidence does not
compel the conclusion that these two incidents either together or
in isolation amounted to persecution.
The record also does not compel a finding that Muska
would more likely than not experience persecution if he returned to
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Albania. The 1999 café incident does not by itself compel the
conclusion that he would suffer persecution if he remained in the
country. Muska also testified that if he returned home he was sure
that he would be persecuted for his membership in the Democratic
Party and for his father's role as a colonel in the military. Yet
he could not explain who would be doing this and why. When asked
why he felt he would still be unsafe, given that the Democratic
Party at the time of the hearing controlled the Executive branch of
the Albanian government, Muska responded that the local governments
were still controlled by the Socialists, but did not explain why
they posed a danger. Given the limited nature of Muska's evidence
and the fact that the 2004 State Department report stated that the
political situation had stabilized in Albania, substantial evidence
supported the IJ's finding that Muska did not more likely than not
face persecution if removed. Since Muska did not address the
evidence regarding changes in the Albanian government in his appeal
to the BIA, its decision was also supported by substantial evidence.
B. CAT and Voluntary Departure Claims
Muska's claims for CAT relief and voluntary departure
were not substantially argued to the BIA. Because he has failed to
exhaust his administrative remedies we do not have jurisdiction to
hear these claims. Silva v. Gonzales, 463 F.3d 68, 72 (1st Cir.
2006).
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III.
We have dealt with the merits of the case, but we wish to
note that petitioner's brief was inadequate and we could have
decided the case on the basis of abandonment or waiver. The brief
contained only a page and a half of discussion and presented Muska's
claims unclearly. Counsel is warned that this is unacceptable.
For the foregoing reasons, the petition is denied in part
and dismissed in part.
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