Ervin Nekaj v. U.S. Attorney General ( 2022 )


Menu:
  • USCA11 Case: 21-11306     Date Filed: 05/05/2022       Page: 1 of 14
    [DO NOT PUBLISH]
    In the
    United States Court of Appeals
    For the Eleventh Circuit
    ____________________
    No. 21-11306
    Non-Argument Calendar
    ____________________
    ERVIN NEKAJ,
    Petitioner,
    versus
    U.S. ATTORNEY GENERAL,
    Respondent.
    ____________________
    Petition for Review of a Decision of the
    Board of Immigration Appeals
    Agency No. A213-532-140
    ____________________
    USCA11 Case: 21-11306          Date Filed: 05/05/2022       Page: 2 of 14
    2                        Opinion of the Court                    21-11306
    Before JILL PRYOR, BRANCH, and GRANT, Circuit Judges.
    PER CURIAM:
    Ervin Nekaj, an Albanian citizen and native, petitions for
    review of a Board of Immigration Appeals decision upholding the
    denial of his applications for asylum and withholding of removal.
    Nekaj alleged that he escaped political persecution in his homeland
    and that he had a well-founded fear of future harm if he ever
    returned. But the immigration judge hearing his case concluded
    that his testimony was not credible and that even if it had been, it
    did not establish that Nekaj had suffered persecution. Because
    these findings were supported by substantial evidence, we deny
    Nekaj’s petition for review.
    I.
    Nekaj entered the United States in 2019 and was issued a
    notice to appear a few months later. The government’s basis for
    removal was that Nekaj had not possessed the documentation
    required for entry under 
    8 U.S.C. § 1182
    (a)(7)(A)(i)(I). Nekaj
    admitted that he was removable. But he also filed an application
    for asylum and withholding of removal based on political
    persecution.1 Nekaj argued that he could not return to Albania
    1 Nekaj also sought (and the immigration judge denied) relief under the
    Convention Against Torture. He did not appeal that decision to the Board of
    Immigration Appeals, so we do not consider it here. See Amaya-Artunduaga
    v. U.S. Att’y Gen., 
    463 F.3d 1247
    , 1250 (11th Cir. 2006).
    USCA11 Case: 21-11306       Date Filed: 05/05/2022     Page: 3 of 14
    21-11306               Opinion of the Court                        3
    because he “would be killed by members of the socialist party, and
    the government wouldn’t do anything to protect” him.
    At a hearing, Nekaj told the immigration judge that he had
    suffered persecution on four separate occasions because he was a
    member of the minority Democratic Party. First, he testified that
    in 2013 he attended a “large gathering” of Democratic Party
    members in his village. As he and his brother walked home, they
    were stopped by “five militants of the Socialist Party” wearing
    masks who told them to “stop supporting the Democratic Party”
    or else the militants would kill them. One militant pointed a
    handgun at Nekaj and his brother. The militants beat them until
    they fell to the ground, “kicking and punching” the brothers while
    insulting them and threatening their lives. Nekaj suffered “bruises,
    cuts, and concussions” and had his wounds treated at a hospital.
    Nekaj’s father attempted to report the incident the following day,
    but “the police didn’t do anything” because they were
    “wholeheartedly with the Socialists.” Indeed, Nekaj explained that
    before this incident, the police had already told him “not to support
    the Democratic Party, not to join their protests, and [to] stay away
    from them.”
    Nekaj next testified that he and his father were attacked
    while returning home from a meeting in 2017. Four strangers
    stopped them in a park and told them “not to support the
    Democratic Party, not to vote for its candidates”—“not to even go
    to the voting station.” The strangers also punched and kicked
    them. Nekaj did not vote in the elections held two days later
    USCA11 Case: 21-11306        Date Filed: 05/05/2022     Page: 4 of 14
    4                      Opinion of the Court                 21-11306
    because he “believe[d] their threat was serious” and feared for his
    life.
    The third alleged incident was Nekaj’s arrest in February
    2019 for participating in a “protest against the Socialist Party” in
    front of the prime minister’s office in the capital city of Tirana.
    Nekaj left the protest around noon before any violence occurred,
    but around 10 o’clock that night three police officers came to his
    door, asked for him by name, handcuffed him, and took him to a
    police station about two hours away. The police gave no reason
    for the arrest. Instead they interrogated Nekaj about the protest,
    demanding that he tell them who had attended the protest, what
    its purpose was, and how it had been planned. They also physically
    abused Nekaj by beating him—with punches, kicks, and police
    batons—everywhere but on his face. After a sleepless night with
    no food or water, Nekaj was released. But the police warned him
    that he needed to stop supporting the Democratic Party, and
    threatened that if Nekaj “didn’t cease all [his] activities, they were
    going to do worse” things to him.
    Finally, Nekaj alleged that he was assaulted by four
    unknown assailants in June 2019 as he walked home from a
    meeting of the Democratic Party prior to the upcoming elections.
    One held a knife to Nekaj’s throat as the group beat him repeatedly
    until he fell to the ground and was “bleeding profusely.” As in all
    the other incidents, Nekaj’s assailants verbally abused him, told
    him to stop supporting the Democratic Party, and threatened to do
    worse if he did not stop his political activities. After the last
    USCA11 Case: 21-11306        Date Filed: 05/05/2022     Page: 5 of 14
    21-11306               Opinion of the Court                         5
    incident, Nekaj no longer attended meetings of the Democratic
    Party.
    Fearing for his life, Nekaj avoided going out in public for a
    few months until he was able to leave Albania altogether. In
    November 2019, Nekaj traveled from Europe to Mexico on a
    smuggler’s boat and eventually crossed the border into the United
    States. He testified that he did not apply for asylum in the countries
    he passed through along the way because he always intended to
    stay in the United States.
    The government pressed back on some of Nekaj’s
    testimony. In particular, it asked Nekaj about a yearlong trip to
    Germany beginning in 2015. Nekaj responded that he went to
    Germany for medical care because he could receive free treatment
    if he reported to a refugee camp there. He emphasized that he
    never intended to apply for asylum in Germany and did not do so
    while he was there; he also said that he expressed no reluctance to
    the German government about returning to Albania once he
    received the treatment he needed.
    Nekaj also called an expert witness—an academic specialist
    on Albania—to testify about the current political conditions in the
    country. The expert explained that the political system is
    “authoritarian” and that the current political parties use the police
    and the courts to strengthen themselves, with the Socialist Party
    currently in control.
    USCA11 Case: 21-11306       Date Filed: 05/05/2022    Page: 6 of 14
    6                      Opinion of the Court               21-11306
    After the hearing, the immigration judge issued an oral
    decision denying Nekaj’s applications. He first concluded that
    Nekaj’s testimony was not credible, for three key reasons. First,
    Nekaj had alleged that he was arrested in February 2019 after he
    attended a large protest in Tirana, four hours away from his home
    by car. But the immigration judge found it implausible that while
    three friends from his hometown had also made the trip, he alone
    was later singled out and arrested—especially since Nekaj’s expert
    witness had testified that the protest involved 40,000 people.
    Second, Nekaj stated that his purpose in traveling to
    Germany in 2015 was to receive free medical treatment and that he
    did not request asylum. But in his I-589 form requesting
    withholding of removal, Nekaj had previously written that he and
    his sister did apply for asylum in Germany and that they were
    forced to leave when their applications were denied. The
    immigration judge found it “troubling” that Nekaj “basically
    testif[ied] that he was trying to game the asylum system in
    Germany.”
    Third and finally, Nekaj had also testified that he did not
    apply for asylum in the countries he passed through on the way to
    the United States because he had always intended to stay here. But
    his I-589 form asserted that he did not apply for asylum in those
    countries because he “did not feel safe and [he] was not offered the
    opportunity to apply.” Beyond all these inconsistencies, the
    immigration judge also found that a “lack of corroboration
    USCA11 Case: 21-11306        Date Filed: 05/05/2022     Page: 7 of 14
    21-11306               Opinion of the Court                         7
    alone”—especially a lack of medical reports confirming Nekaj’s
    alleged injuries—also required denial.
    The immigration judge explicitly rested his decision on lack
    of credibility, but he went on to make alternate findings on the
    merits. He concluded that Nekaj had not established harm rising
    to the level of past persecution. Three of the four incidents alleged
    by Nekaj involved unknown assailants that had no apparent
    affiliation with the government, and each of these incidents
    occurred just before an election (with “no instances of harm in
    between”). The immigration judge therefore determined that
    these incidents were “election intimidation” rather than
    persecution. And the facts suggested that the final incident—
    Nekaj’s arrest in February 2019—was part of a police investigation
    of the “violent protest” Nekaj had attended (though Nekaj testified
    that he left the protest before any violence occurred). Because
    there were “no further issues with the police in his time in
    Albania,” the immigration judge concluded, that “isolated incident
    based on a violent high-profile protest in the capital” was not
    enough to constitute persecution.
    Nor had Nekaj sufficiently alleged an objectively reasonable
    fear of future harm. Nekaj’s expert had testified that there were
    “hundreds of thousands of supporters of the Democratic Party in
    Albania,” and Nekaj’s family (who were numbered among those
    supporters) appeared to be living relatively safe and successful lives
    in an area of Albania known to be a “Democratic Party
    stronghold.” Even if Nekaj were to suffer incidents in the future
    USCA11 Case: 21-11306      Date Filed: 05/05/2022    Page: 8 of 14
    8                     Opinion of the Court               21-11306
    similar to those he had alleged, “isolated incidents by criminals
    which result[] in threats and possibly minor injuries” are not
    enough to rise to the level of persecution.
    Nekaj appealed the immigration judge’s decision. He
    argued that his testimony had been credible, that no corroborating
    evidence was necessary, and that the immigration judge had erred
    in finding no past persecution or future harm. The Board of
    Immigration Appeals disagreed. It concluded that the immigration
    judge had “provided specific and cogent reasons for his adverse
    credibility finding” and that Nekaj was therefore ineligible for
    asylum on those grounds alone. But like the immigration judge,
    the Board also considered the merits of Nekaj’s petition. After
    reviewing Nekaj’s testimony, the Board determined that Nekaj had
    not established either past persecution or a reasonable fear of
    future harm. And because Nekaj could not meet the burden
    required to prevail on an asylum claim, he “necessarily” could not
    meet the “higher burden required for withholding of removal.”
    The Board therefore dismissed Nekaj’s appeal.
    Nekaj now petitions this Court for review of the Board’s
    decision.
    II.
    We review the decision of the Board of Immigration
    Appeals, along with the immigration judge’s underlying decision
    “to the extent that the Board expressly adopted” the immigration
    judge’s opinion. Kazemzadeh v. U.S. Att’y Gen., 
    577 F.3d 1341
    ,
    USCA11 Case: 21-11306       Date Filed: 05/05/2022     Page: 9 of 14
    21-11306               Opinion of the Court                        9
    1350 (11th Cir. 2009). Legal determinations are reviewed de novo,
    but findings of fact are subject to substantial evidence review—a
    “highly deferential” standard that requires us to affirm an
    immigration judge’s decision “if it is supported by reasonable,
    substantial, and probative evidence on the record considered as a
    whole.” Ayala v. U.S. Att’y Gen., 
    605 F.3d 941
    , 948 (11th Cir. 2010)
    (quotation omitted). “We may not reweigh the evidence from
    scratch, and we may reverse only when the record compels a
    reversal.” 
    Id.
     (quotations omitted).
    III.
    On appeal, Nekaj argues that the immigration judge’s
    credibility finding was not supported by substantial evidence and
    that the alternate finding that the past harm he suffered was not
    persecution was “infected by both factual and legal error.” We are
    not persuaded.
    As a preliminary matter, this Court lacks jurisdiction to
    review Nekaj’s asylum claim on appeal. We have no jurisdiction
    to hear claims raised in a petition for review “unless the petitioner
    has exhausted his administrative remedies with respect thereto.”
    Amaya-Artunduaga v. U.S. Att’y Gen., 
    463 F.3d 1247
    , 1251 (11th
    Cir. 2006); see 
    8 U.S.C. § 1252
    (d)(1). We therefore lack jurisdiction
    to consider claims that have not been raised before the Board of
    Immigration Appeals. Sundar v. INS, 
    328 F.3d 1320
    , 1323 (11th Cir.
    2003).
    USCA11 Case: 21-11306       Date Filed: 05/05/2022     Page: 10 of 14
    10                     Opinion of the Court                 21-11306
    In issuing the order denying Nekaj’s applications, the
    immigration judge noted that the application for asylum failed
    under the then-existing “third-country transit asylum bar.” Its
    credibility and merits determinations therefore pertained only to
    Nekaj’s claim for withholding of removal. And Nekaj appealed
    only those determinations to the Board of Immigration Appeals.
    So we may only consider his withholding-of-removal claim, not his
    asylum claim.
    To qualify for withholding of removal, Nekaj must show
    that his “life or freedom would be threatened” in Albania because
    of his “race, religion, nationality, membership in a particular social
    group, or political opinion.” 
    8 U.S.C. § 1231
    (b)(3)(A). More
    particularly, he must show that he “more-likely-than-not would be
    persecuted or tortured” upon his return. Mendoza v. U.S. Att’y
    Gen., 
    327 F.3d 1283
    , 1287 (11th Cir. 2003). Past persecution based
    on a protected characteristic creates a presumption that future
    harm is likely to occur. 
    Id.
    The immigration judge is tasked with determining whether
    an applicant’s testimony is credible. 
    8 U.S.C. § 1231
    (b)(3)(C).
    Though an adverse credibility finding must be supported by
    “specific, cogent reasons,” it “may not be overturned unless the
    record compels it.” Forgue v. U.S. Att’y Gen., 
    401 F.3d 1282
    , 1287
    (11th Cir. 2005) (quotation omitted).
    Here, the immigration judge’s finding that Nekaj was not
    credible was supported by substantial evidence. The immigration
    judge explicitly stated that he found Nekaj’s testimony to be not
    USCA11 Case: 21-11306           Date Filed: 05/05/2022         Page: 11 of 14
    21-11306                   Opinion of the Court                              11
    credible, and he gave specific, cogent reasons for doing so. The
    most important of these was that Nekaj’s testimony contradicted
    the information he had provided on his I-589 form. That document
    states that Nekaj unsuccessfully applied for asylum in Germany
    during his trip there in 2015 and that he failed to apply for asylum
    in the countries he passed through on the way to the United States
    because he felt unsafe and had no opportunity to do so. In his
    testimony, however, Nekaj claimed that he had never applied for
    asylum in Germany and that he did not apply in the other countries
    because he only intended to live in the United States. The
    immigration judge concluded that he “just d[id] not know what to
    believe” and did not find Nekaj credible as a result. He also pointed
    to implausible aspects of Nekaj’s alleged arrest in February 2019
    and the conspicuous lack of corroboration for Nekaj’s claims.
    Taken together, the immigration judge concluded that these
    inconsistencies went “to the heart of [Nekaj’s] claim.”
    Particularly given the facial contradictions between Nekaj’s
    testimony and his I-589 form, this record does not compel us to
    reverse the district court’s determination.2 That alone is enough
    to deny Nekaj’s petition for review. Because Nekaj could not
    prevail on the merits even if we were to overturn the adverse
    2Indeed, this Court has accepted an adverse credibility determination based
    on a single inconsistency and a single omission. See Xia v. U.S. Att’y Gen., 
    608 F.3d 1233
    , 1240–41 (11th Cir. 2010). While each inquiry is fact-specific, the
    immigration judge here made specific findings that clearly satisfy our standard.
    USCA11 Case: 21-11306       Date Filed: 05/05/2022    Page: 12 of 14
    12                     Opinion of the Court                21-11306
    credibility finding, however, we briefly address those merits here
    as well.
    Nekaj argues that the Board of Immigration Appeals erred
    in finding that he had failed to establish harm sufficient to
    constitute past persecution. In his view, the Board minimized
    crucial factual details and cited to inapposite precedents. In
    particular, he accuses the Board of attempting to “disaggregate the
    relevant events into a string of isolated or non-condonable (but
    benign) incidents” when they must in fairness be considered
    together.
    As we have explained, persecution is “an extreme concept
    that does not include every sort of treatment our society regards as
    offensive.” Murugan v. U.S. Att’y Gen., 
    10 F.4th 1185
    , 1192 (11th
    Cir. 2021) (quotation omitted). Examples of persecution include
    threats and attacks over an 18-month period, including an attack
    resulting in a broken nose; repeated death threats and assaults
    followed by an 18-day kidnapping; and a series of “beatings, arrests,
    searches, and interrogations, culminating in a fifteen-day, food-
    deprived detention.” De Santamaria v. U.S. Att’y Gen., 
    525 F.3d 999
    , 1008 (11th Cir. 2008) (collecting cases).
    Neither the immigration judge nor the Board of
    Immigration Appeals erred in finding that Nekaj was unable to
    meet that high standard. Nekaj described three instances in which
    groups of socialists beat him, insulted him, and left him with minor
    to moderate injuries. But as the Board and the immigration judge
    both noted, these incidents were separated by years of relative calm
    USCA11 Case: 21-11306           Date Filed: 05/05/2022       Page: 13 of 14
    21-11306                  Opinion of the Court                             13
    and appeared to be “isolated incidents within the context of
    generalized election-related violence and intimidation, rather than
    a sustained effort to persecute” Nekaj in particular. And the
    February 2019 arrest—“a brief detention and minor physical abuse
    after [Nekaj] attended a violent protest”—does not transform
    Nekaj’s unfortunate experiences into persecution. As this court has
    repeatedly explained, “minor physical abuse and brief detentions”
    are simply not enough. 3 Murugan, 10 F.4th at 1192 (quoting
    Kazemzadeh, 
    577 F.3d at 1353
     (brackets omitted)). Nekaj has
    alleged nothing more than that.
    Even when Nekaj’s allegations are considered in the
    aggregate, substantial evidence supports the conclusion that those
    harms—a single bad encounter with the police during the
    investigation of a violent protest, plus three instances of sporadic
    voter intimidation over several years—do not amount to
    persecution. So even if we could accept his testimony as credible,
    we must deny his petition.
    3Nekaj’s alleged harms are not as egregious as some others that have failed to
    qualify as persecution. For example, this Court recently concluded that being
    detained by the police “three times and, during the longer 4-day detention,
    [being] tied to a chair, slapped, and kicked,” while “serious” harm, did not
    qualify as persecution. Murugan, 10 F.4th at 1192–93.
    USCA11 Case: 21-11306        Date Filed: 05/05/2022   Page: 14 of 14
    14                   Opinion of the Court                 21-11306
    *        *     *
    The decisions of the Board of Immigration Appeals and the
    immigration judge were supported by substantial evidence. We
    therefore DENY Nekaj’s petition for review.