Ceribashi v. Gonzales ( 2006 )

[Not for Publication in West's Federal Reporter --
Citation Limited Pursuant to lst Cir. Loc. R. 32.3]
United States Court of Appeals
For the First Circuit
No. 05-2106
ENGJELL CERIBASHI,
Petitioner,
v.
ALBERTO GONZALES,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
ON PETITION FOR REVIEW FROM A DECISION
OF THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Coffin, Senior Circuit Judge,
and Selya, Circuit Judge.
James D. Christo and Christo & Associates, P.C., on brief for
petitioner.
Gina Walcott-Torres, Assistant U.S. Attorney, and Michael J.
Sullivan, United States Attorney, on brief for respondent.
July 21, 2006
COFFIN, Senior Circuit Judge. Petitioner Engjell Ceribashi,
a native and citizen of Albania, entered the United States in June
2001 on a six-month visitor’s visa and applied early the next year
for asylum, withholding of removal, and relief under the United
Nations Convention Against Torture (“CAT”). Finding that
petitioner’s tale of persecution lacked credibility, an immigration
judge ("IJ") deemed him ineligible for relief; the Board of
Immigration Appeals (“BIA”) affirmed without opinion. After
carefully examining the record, we are unpersuaded that “any
reasonable adjudicator would be compelled to” reach a different
outcome, 8 U.S.C. § 1252(b)(4)(B), and we consequently deny
Ceribashi’s petition for review.
Ceribashi’s allegations of persecution prominently feature his
father’s role as a political activist in Albania in the 1940s and
the father’s execution by the Communist regime in 1946, when
petitioner was ten years old. He claims that the family
experienced various forms of ill treatment through the following
decades, including his confinement in labor camps between 1965 and
1985. Petitioner’s circumstances improved when the Democratic
Party (“DP”) controlled the Albanian government in the 1990s and he
was involved in DP activities,1 but the danger returned when the
Socialist Party came to power in 1997.
1
He claims that he participated in DP protests,
demonstrations and meetings, that he was a speaker for the party,
and that he served in the DP administration as an “inspector.”
-2-
Ceribashi points to two specific incidents, in addition to his
family history, to substantiate his claim of persecution. First,
he asserts that in May 1998 he was deliberately hit by a car as he
rode a bicycle to his home in Tirana. He was hospitalized for five
days and, concerned about his safety, spent most of his time at
home for the next two years. He returned to the hospital in March
2000 for surgery on his leg, and he said the second incident
occurred upon his release about two weeks later. Two men
confronted him after he left the hospital, warning that “[w]e are
not done with you and your family” and threatening to cut off his
legs or kill him if he continued his support for the Democratic
Party. Petitioner said he recognized the men as active supporters
of the Socialist Party.
Petitioner stated that his reports of the incidents to the
police were ignored because the police also were Socialist
supporters who recognized him and knew of his family background and
DP affiliation. Fearing for his life after the second assault,
petitioner went into hiding for six months and then applied for a
visa at the American embassy. He was granted a visitor’s visa in
December 2000, but did not leave Albania until June 2001 because he
lacked the funds to make the trip earlier.
Petitioner claims that if he is forced to return to Albania
his life will be at risk because of his family history and his
support for, and activities on behalf of, the Democratic Party.
-3-
The IJ, however, had “serious issues with [petitioner’s]
credibility,” concluding that it is “highly unlike[ly] that [he]
would have been targeted in the year 1998 or even in the year 2000
by those who perhaps might have remembered his father some 53 to 55
years ago.” The IJ further noted that, even if petitioner’s
version of events were credible, “he has failed to state a claim
that is rational[] and reasonable based upon the country conditions
in Albania as reported by the United States State Department.”
Accordingly, the IJ denied all of petitioner’s claims.
Our review is limited: we consider only whether substantial
evidence in the record supports the IJ’s finding that the
petitioner failed to show a well founded fear of persecution and
thus did not establish his asylum claim; if the finding has
sufficient support, it must stand unless a reasonable factfinder
would be compelled to make a contrary determination. Lumaj v.
Gonzales, 446 F.3d 194, 198 (1st Cir. 2006) (citing Olujoke v.
Gonzales, 411 F.3d 16, 21 (1st Cir. 2005)).2 The record here is
adequate to sustain the IJ’s ruling.3
2
We review the IJ’s decision, as the BIA affirmed without
opinion. Lumaj v. Gonzales, 446 F.3d 194, 198 (1st Cir. 2006).
3
If the IJ’s asylum ruling is supported, petitioner’s
alternative request for withholding of removal necessarily will
fail. Bocova v. Gonzales, 412 F.3d 257, 262 (1st Cir. 2005). The
CAT claim has been forfeited, as it was not referenced in
petitioner’s appeal to the BIA. See Un v. Gonzales, 415 F.3d 205,
210-11 (1st Cir. 2005).
-4-
The IJ’s doubts about petitioner’s credibility stem in part
from variations in his story about the bicycle incident and from
the judge’s skepticism that animosity toward petitioner’s father
sixty years ago would continue to fuel persecution against
petitioner. The IJ noted that petitioner told the asylum officer
who initially interviewed him that a car door opened suddenly and
knocked him off his bicycle, but later testified that a car drove
straight at him.4 Of more significance in supporting the IJ’s
credibility judgment is that petitioner consistently reported that
no one else was on the street when the bicycle incident occurred,
but he produced a photograph of the suspect car taken by a friend
nearly two years later; the friend supposedly “was close to the
street where the incident happened,” remembered the license plate
number, and recognized the vehicle.
The IJ also observed that petitioner’s son remains in Albania,
apparently safely, and the record reveals that two of petitioner’s
siblings live there as well. Although petitioner claims that he is
4
Petitioner suggests that the content of the asylum officer’s
report may not be considered because the officer was not subject to
cross-examination. Petitioner, however, was given a chance to
respond to the report at his hearing. Asked about the discrepancy,
he stated that he could not remember the specifics of his comments
to the asylum officer “because a long time passed since that day
that I was interviewing but I know that what I said today is true
that I was riding the bicycle and the car came toward me and the
reason was to kill me.” The IJ admitted the report into evidence
as a hearsay document, noting that “I understand that you can’t
cross-examine on it.” Given this context, it does not appear that
the report was given undue weight in the IJ’s ruling.
-5-
a target while they are not because of his DP activity and because
his brother and sister are elderly, petitioner was beyond 65 when
he left Albania and is now nearly seventy years old.
Moreover, the IJ was skeptical that petitioner played a
significant role in the DP, and the record permits such doubts. In
his application for asylum, petitioner said that he supported the
democratic movement and “took part in . . . all the demonstrations
to overthrow the communist system” and also stated that he wrote
articles in the Democratic Party newspaper. He testified that he
attended “all the meetings of the democratic party” and that he was
“a speaker for the democratic system in that time.” So far as we
can tell, however, none of the newspaper articles he authored are
in the record, and his DP membership card was dated July 2001 –
which was after his arrival in the United States.5 He offered no
other specific evidence of a leadership role in the DP, and thus
left largely unexplained why he would be targeted for harm – other
than to rely on his father’s activity half a century earlier.6
5
The IJ noted that petitioner had said he came to the United
States with his certificate of DP membership but that the
certificate was dated a month after his arrival; whether he
actually traveled with it is of little significance, but its date
does permit an inference that petitioner was not a longtime DP
activist and that he joined to bolster his asylum claim.
6
Petitioner complains that the IJ failed to give weight to
the years of persecution his family experienced as a result of his
father’s political activity. We think it evident that the judge
considered that evidence, but deemed it largely irrelevant to the
issue of petitioner’s current risk of persecution.
-6-
Additionally, the IJ could have discounted the seriousness of any
threat because petitioner remained in his home without incident for
two years after the bicycle episode and then waited a year after
the hospital episode to leave the country. Although he reported
that he was in hiding for that final year, he also testified, in
response to a question, that he lived in the same residence between
1998 and 2001, the year of his departure.
The IJ also pointed to other weaknesses he perceived in
petitioner’s story: he said it was implausible that Socialist Party
gang members would be driving late-model Mercedes vehicles, as
petitioner had alleged; he doubted that local police officials
would recognize petitioner as the son of a political activist whose
involvement had been a half-century earlier, or that such identity
would “make any difference to them”; and he thought the possibility
that a U.S. embassy official would issue a visitor’s visa to an
individual who said he wanted to apply for political asylum was “so
highly unlikely as to be on the verge of being preposterous.”
While these latter observations must be characterized as
speculation rather than fact-finding based on record evidence, the
ultimate inferences drawn by the IJ were not unreasonable given the
sum total of petitioner’s presentation. The generalities,
inconsistency and gaps in his narrative diminished its
persuasiveness, and the U.S. Department of State’s Profile of
Asylum Claims and Country Conditions for Albania, on which the IJ
-7-
relied, gave weight to the judge’s view that petitioner’s account
was, in various respects, implausible. The IJ noted that the
report, dated May 2001, stated that “[t]here is virtually no
evidence that individuals are targeted for mistreatment on
political grounds,” observing that “[f]ar more prevalent is
organized and amateur crime,” exacerbated by, inter alia, police
corruption, widespread availability of firearms, “and a culture of
blood feud that is wholly independent of political activity.”7
Petitioner complains that the IJ ignored record evidence of
politically motivated violence, but the serious incidents described
in the documents submitted on his behalf occurred in 2001 or
earlier, and the most recent report in the record – the State
Department’s Country Report on Human Rights Practices in 2002
(dated March 2003) – noted that there were no confirmed cases of
political killings by the government or its agents, no reports of
politically motivated disappearances, and “no confirmed cases of
detainees being held strictly for political reasons.” From these
reports, the IJ reasonably could have concluded that conditions in
Albania with respect to politically motivated violence had improved
since petitioner’s departure.
7
In Waweru v. Gonzales, 437 F.3d 199, 202 n.1 (1st Cir.
2006), we noted that “[t]he Board of Immigration Appeals is
entitled to rely on the State Department’s country reports as proof
of country conditions described therein, although it must also
consider evidence in the record that contradicts the State
Department’s descriptions and conclusions.”
-8-
To be sure, the record materials make it clear that human
rights abuses by the police and other institutions continued to
occur; that evidence does not lead inevitably, however, to a
conclusion that petitioner would be at risk on account of his
political affiliation if he returned to Albania. Indeed, Amnesty
International’s report noted that similar brutality existed under
the DP regime as well. Also relevant to the IJ’s assessment of
petitioner’s claim is that the two most recent episodes of
politically motivated violence reported – the death of a DP
“leader” in police custody in 2001 and the killing of a DP
“activist” in 2000 – affected DP members who appeared to have
significantly more involvement than petitioner. In addition, the
2002 Country Report on Human Rights Practices stated that the
Albanian government completed its investigation into a 1998 murder
of a DP leader, with four suspects convicted and sentenced to
prison terms between 2 1/2 years to life, allowing the IJ to infer
that violence against DP supporters was not – or at least not
always – condoned by the government.
Also of note, from a different perspective, are a 2002 World
Report from Human Rights Watch and a 2001 report from Amnesty
International, which stated that the head of the DP’s Tropoja
branch was arrested at his home in January 2001, allegedly for his
role in a November 2000 attack on a police station, and later was
brutally assaulted. The IJ reasonably could have concluded that,
-9-
if petitioner were truly a political target, he, too, would have
been pursued at home.
The country condition material thus did not compel the
conclusion that petitioner would be at risk based on his and his
father’s support of the Democratic Party if he were to return to
Albania. Given petitioner’s age, the apparent decline in
politically motivated incidents, and the not unreasonable inference
of partial fabrication drawn by the IJ from petitioner’s hearing
testimony and other statements, his ruling was supportable. On
this record, even if we credited petitioner’s accounts of the two
assaults, we would lack the authority to override the IJ’s finding
that petitioner lacked a well-founded fear of future persecution.
See Lumaj, 446 F.3d at 198 n.4. (government may rebut presumption
regarding future persecution that arises from past persecution)8;
see also Makhoul v. Ashcroft, 387 F.3d 75, 79 (1st Cir. 2004) (“[A]
reviewing court can reverse the BIA only if the record
unequivocally indicates error.”).9
8
If an asylum applicant can establish past persecution, he is
presumed to be a refugee for purposes of eligibility for asylum.
Makhoul v. Ashcroft, 387 F.3d 75, 80 n.3 (1st Cir. 2004). “This
presumption shifts the burden to the government to show that
conditions in the applicant’s home country have changed to such an
extent that he has no well-founded fear of future persecution.”
Id. (citing 8 C.F.R. § 208.13(b)(1)).
9
In his brief to this court, petitioner invokes “humanitarian
asylum,” a discretionary doctrine sometimes available even when
there is little likelihood of future persecution. See Waweru, 437
F.3d at 205 (“[T]his is granted only in cases of ‘extraordinary
suffering . . . .’”); see also 8 C.F.R. § 208.13(b)(1)(iii)(A);
-10-
Accordingly, the petition for review is denied.
Matter of Chen, 20 I. & N. Dec. 16, 19-21 (BIA 1989). Because this
basis for relief was not previously raised, we do not consider it.
See Olujoke v. Gonzales, 411 F.3d 16, 22-23 (1st Cir. 2005).
-11-