Ramadan Likollari v. U.S. Attorney General ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
April 27, 2006
No. 05-15780 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A79-453-719
RAMADAN LIKOLLARI,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(April 27, 2006)
Before CARNES, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Ramadan Likollari, a native and citizen of Albania, seeks review of the
Board of Immigration Appeals’s affirmance of the Immigration Judge’s order of
removal. Substantial evidence supports the Immigration Judge’s determination to
deny Likollari’s application for asylum on the ground that Likollari lacked
credibility. Furthermore, because Likollari cannot meet the lower standard for
asylum, we also deny his claims for withholding of removal and relief under the
Convention Against Torture. Accordingly, we deny Likollari’s petition.
I. Background
Likollari attempted to enter the United States at Miami, Florida, by using a
fraudulent Belgian passport. The Immigration and Naturalization Service (“INS”)1
initiated immigration proceedings, placing Likollari in “asylum only proceedings”
pursuant to 8 C.F.R. § 208.2(b) (2001) as a visa waiver pilot program (“VWPP”)
applicant.2 Immigration hearings for Likollari were held following his arrival in
the United States, during which he sought relief under the Convention Against
1
On November 25, 2002, President Bush signed into law the Homeland Security Act of
2002, Pub. L. No. 107-296, Stat. 2125. The HSA created a new Department of Homeland
Security, abolished the INS, and transferred INS’s functions to the new department.
2
Under the VWPP, the Attorney General is permitted to allow aliens from certain
countries to enter the United States for up to ninety days without a visa. INA § 217(a), 8 U.S.C.
§ 1187(a). Aliens who are admitted under this program agree to forfeit any challenge to
removal, except on the basis of asylum. INA § 217(b), 8 U.S.C. § 1187(b). By regulation, aliens
from Belgium are eligible for admission into the United States under the program. 8 C.F.R. §
217.2(a) (2001). Because Likollari attempted to enter the United States with a Belgian passport,
he was classified as a VWPP applicant and was placed in “asylum only proceedings.”
2
Torture (“CAT”) and filed an application for asylum and withholding of removal
claiming he was a refugee based on his political opinion.
In his application, Likollari stated that he had left Albania in February 2002.
To show he was entitled to asylum, he asserted that in October 1999 he had
participated in a demonstration organized by the Democratic Party of Albania in
his hometown of Korce, Albania. He initially became involved in the party in
1995 as a member of the Youth Forum and became a full member in 1997.
Likollari estimated that approximately 1000 people attended the demonstration,
during which he and others held signs supporting the Democratic Party and
opposing the Socialist Party. Socialist Party supporters stood behind a line of
police officers and insulted the Democratic Party demonstrators. As the
Democratic Party demonstrators approached the area where its scheduled speakers
were to address the crowd, the police attacked the demonstrators, including
Likollari, with police batons. Likollari eventually escaped from the melee.
Likollari’s application stated that about one week after the demonstration,
two men wearing army fatigues and masks arrived at his house at approximately
5:00 or 6:00 a.m. The men forced their way past Likollari’s mother and found
Likollari in his bed. They dragged him from his house, beat him, and placed him
in a van. Seven men were in the van, and the beatings continued. The men
brought Likollari to the police station where they placed him in a cell alone,
3
refused to allow him to obtain a lawyer, and beat him two or three times per day.
Likollari had to rely on a man in an adjacent cell for food. Likollari stated that his
captors did not interrogate him but they asked him why he was involved in the
Democratic Party and tried to “scare me and harass me so that I would not be
involved with the Democratic Party.” After two days, his captors drove him
outside the city and left him in the mountains, from which he walked home in two
or three hours. He suffered a broken finger and an injured nose during his
imprisonment and because he feared leaving his house, his mother treated his
injuries. He remained a member of the Democratic Party following his detention
and attended meetings at the party’s headquarters but “tried not to be so involved
in demonstrations” or “so much on the front line.”
From January 2000 to January 2001, he served his obligatory time in the
military. He stated that during his service, the Socialists continually harassed his
brother, who was also a member of the Democratic Party, and forced his brother
from a position as a police officer. At the time of Likollari’s application, his
brother’s application for asylum in the United States was being heard.
Likollari’s application also explained his father’s 1989 imprisonment for
insulting the former Socialist dictator. At the same time, the police detained and
beat Likollari, his brother, and his mother. The police again arrested and beat his
father in 1998, apparently because his father complained about irregularities in
4
voting for the constitution. Likollari also stated that the Socialists stole his father’s
land, which his father recovered when the Democratic Party returned to power.
At the hearing before the Immigration Judge (“IJ”), Likollari testified as
follows: he was twenty-five years old and single and had worked on his family
farm until he left Albania in February 2002. He was a member of the Democratic
Party since his participation in the Youth Forum, and he became a full party
member in 1997. His duties in the party included observing meetings and elections
and attending demonstrations. The party held meetings every three or four months.
Likollari participated in “many” demonstrations, including an “important one” in
October 1999. Approximately 300 or 400 people attended the four or five hour
demonstration that included Democratic Party leaders speaking out against the
Socialist government. A group of Socialist counter-demonstrators threw things
and yelled at the demonstrators, and a line of police officers protected the
Socialists from the Democratic Party members. Eventually, the police clashed
with the Democratic Party members, and Likollari was beaten before fleeing home.
Likollari testified that the following day two masked men abducted him
from his house, placed him in a jeep or van, and brought him to a jail. Three or
four other masked men were also in the vehicle, and the masked men beat
Likollari. He was detained for two days at the police station where he was kept in
a small cell, beaten with rubber sticks three or four times, and received food only
5
from a fellow prisoner. His captors also questioned him about the demonstration,
called him a “dog”, and asked him how he could be a member of the Democratic
Party. After two days, his captors took him to the mountains and left him. He
walked home, which took about three hours. On cross examination, he said that
the captors left him near his home, and he took three hours to return home because
he was traumatized. He further testified that during his imprisonment he sustained
small wounds over his body and on his legs that his mother treated. When asked
about the statement in his application that he had sustained a broken finger and
injured nose, he stated that he had forgotten about those injuries when asked the
initial question because the incident happened several years earlier.
As he stated in his application, Likollari testified that he left Albania in
February 2002 when his father obtained the means to send him. Using a false
Belgian passport, and after brief stops in Italy and Switzerland, he reached
Ecuador, where he spent three months, before going to Colombia, where he spent
one month, and eventually arrived in Miami, Florida in June 2002. Finally, he
testified that he feared he would be killed if he returned to Albania because of his
membership in the Democratic Party.
Likollari also supported his claims with the 2001, 2003, and 2004 State
Department Reports on Albania, the 2003 European Communities Report, and a
2000 Amnesty International Report. The reports explained that the political
6
climate in Albania was unstable, that participation in elections resulted in violence,
and that police engaged in excessive treatment. The reports clarified, however, that
only limited instances of violence occurred after 1998 and that by 2001, members
of the Democratic Party had parliamentary seats.
In his decision, the IJ noted that Likollari paused between thirty and sixty
seconds several times before answering questions and that his answers were
sometimes unresponsive to the questions asked. The IJ also noted Likollari was
vague about details of the demonstrations and his involvement in the party and
provided inconsistent information about the injuries he incurred during his
detention. The IJ acknowledged, however, that the State Department Country
Reports listed use of force against protestors, beatings by police, and an unstable
political climate. After considering the testimony and other evidence and reciting
the applicable law, the IJ denied relief, finding that Likollari was not credible, his
testimony had been vague and unresponsive, and he failed to present other
witnesses or corroborating evidence. The IJ noted Likollari’s limited political
participation and determined that he failed to establish past persecution or a well-
founded fear of future persecution, especially considering that he remained in
Albania for more than two years after the beatings and that his parents, who he
admitted also faced beatings and participated in the Democratic Party, still lived
there. Finally, the IJ concluded that Likollari could not meet the CAT standard
7
because he did not show that he had been singled out for torture. Accordingly, the
IJ denied relief.
The Board of Immigration Appeals (“BIA”) affirmed the IJ’s decision
without an opinion.
II. Standard of Review
When, as here, the BIA adopts the IJ’s decision, we review the IJ’s decision
as adopted by the BIA. Chacon-Botero v. U.S. Attorney Gen., 427 F.3d 954, 956
(11th Cir. 2005). To the extent that the IJ’s decision was based on a legal
determination, we review the decision de novo. D-Muhumed v. U.S. Attorney
Gen., 388 F.3d 814, 817 (11th Cir. 2004). We review the IJ’s factual
determinations under the substantial evidence test, and we “must affirm the [IJ’s]
decision if it is supported by reasonable, substantial, and probative evidence on the
record considered as a whole.”3 Al Najjar v. Ashcroft, 257 F.3d 1262, 1283-84
(11th Cir. 2001) (quotation and internal marks omitted). A finding of fact will “be
reversed by this court only when the record compels a reversal; the mere fact that
the record may support a contrary conclusion is not enough to justify a reversal of
3
Congress recently passed the REAL ID Act, which altered this court’s review of
immigration appeals. In Huang, this court noted that pursuant to the REAL ID Act, all petitions
for review are governed by the permanent rules, and that, under the Act as codified at INA §
208(b)(1), 8 U.S.C. § 1158(b)(1), the Secretary of Homeland Security, in addition to the
Attorney General, has discretion to grant asylum. Huang v. U.S. Attorney Gen., 429 F.3d 1002,
1008 n.3 (11th Cir. 2005).
8
the administrative findings.” Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir.
2004) (en banc). We also review the IJ’s credibility determination under the
substantial evidence test, and we should not “substitute our judgment for that of the
[IJ] with respect to credibility findings.” D-Muhumed, 388 F.3d at 818.
III. Discussion
The Attorney General has discretion to grant asylum if an alien meets the
INA’s definition of “refugee.” INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). The INA
defines “refugee”:
[A]ny person who is outside any country of such
person’s nationality . . . and who is unable or unwilling to
return to, and is unable or unwilling to avail himself or
herself of the protection of, that country because of
persecution or a well-founded fear of persecution on
account of . . . political opinion . . . .
8 U.S.C. § 1101(a)(42)(A) & (B). The asylum applicant bears the burden of
proving refugee status. Al Najjar, 257 F.3d at 1284. To meet this burden, the alien
must, with specific and credible evidence, establish (1) past persecution on account
of a statutorily listed factor, or (2) a “well-founded fear” that the statutorily listed
factor will cause future persecution. Al Najjar, 257 F.3d at 1287; 8 C.F.R. §
208.13(a), (b). This court has explained that “‘persecution’ is an extreme concept,
9
requiring more than a few isolated incidents of verbal harassment or intimidation,
and . . . mere harassment does not amount to persecution.” Sepulveda v. U.S.
Attorney Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) (internal quotations omitted).
If the alien establishes past persecution, he is presumed to have a well-
founded fear of future persecution unless the government can rebut the
presumption. D-Muhumed, 388 F.3d at 818 (citing 8 C.F.R. § 208.12(b)(1)(i),
(ii)). If he cannot show past persecution, the alien must demonstrate a well-
founded fear of future persecution that is both subjectively genuine and objectively
reasonable. Al Najjar, 257 F.3d at 1289. The subjective component can be proved
“by the applicant’s credible testimony that he or she genuinely fears persecution,”
and the objective component “can be fulfilled either by establishing past
persecution or that he or she has a good reason to fear future persecution.” Yang v.
U.S. Attorney Gen., 418 F.3d 1198, 1202 (11th Cir. 2005).
If an alien’s testimony is credible, it may be sufficient, without
corroboration, to satisfy his burden of proof in establishing his eligibility for
asylum.4 Forgue v. U.S. Attorney Gen., 401 F.3d 1282, 1287 (11th Cir. 2005); 8
C.F.R. § 208.13(a), § 208.16(b). In contrast, an IJ’s denial of an asylum
application can be supported solely by an adverse credibility determination,
4
“However, the weaker the applicant’s testimony, the greater the need for corroborative
evidence.” In re Y-B, 21 I & N Dec. 1136, 1139 (BIA 1998).
10
especially if the alien does not produce corroborating evidence. Forgue, 401 F.3d
at 1287. If, however, the applicant produces other evidence of persecution, the IJ
must consider that evidence and should not rely on an adverse credibility
determination in those cases. Id.“Indications of reliable testimony include consistency on direct examination,
consistency with the written application, and the absence of embellishments.” In re
B-, 21 I & N Dec. 66, 70 (BIA 1995). An adverse credibility finding must go to
the heart of the claim, and not be based on minor discrepancies, inconsistencies,
and omissions. Lui v. U.S. Attorney Gen., 156 F. App’x 270, 273 (11th Cir. 2005)
(unpublished) (citing Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002));
Akinmade v. INS, 196 F.3d 951, 954 (9th Cir. 1999)). A single inconsistency may
be sufficient to support an adverse credibility finding if the inconsistency relates to
the alien’s basis for his fear and goes to the heart of his asylum claim. Id. (citing
Chebchoub v. INS, 257 F.3d 1038, 1043 (9th Cir. 2001)).
Here, the IJ concluded that Likollari’s testimony lacked credibility.
Substantial evidence supports this conclusion. The government points to several
possible inconsistencies – e.g., the number of men involved in his kidnapping and
the vehicle his kidnappers used – but Likollari’s statements may not be
inconsistent and, at least, do not go to the heart of his claim. However, Likollari
provided vague information about his involvement in the Democratic Party, gave
11
unresponsive answers to questions5, gave inconsistent testimony about the injuries
he sustained during his imprisonment6, gave drastically different estimates of the
number of people involved in the October 1999 demonstration, and often paused
for thirty to sixty seconds before answering his attorney’s questions.7 These
concerns go to the heart of Likollari’s claim. Forgue, 401 F.3d at 1287-88. Even
though the Country Reports show that the conduct that Likollari alleges occurs in
Albania, he has failed to present evidence supporting his claim of persecution.
Especially considering this failure by Likollari, the IJ’s adverse credibility finding
is sufficient alone to deny Likollari’s application for asylum.
Because Likollari failed to meet the lower burden to establish his eligibility
for asylum, he cannot meet the higher burden to establish his eligibility for
withholding of removal or relief under CAT. Al Najjar, 257 F.3d at 1292-93.
Accordingly, the petition is DENIED.
5
For example, his attorney asked, “Can you describe all of the activities that you joined
in as a member of the Democratic Party?” Likollari responded, “Fred Jola was also a member of
the Democratic Party.”
6
When initially asked on cross examination about the injuries he sustained during his
imprisonment, Likollari failed to mention the broken finger and injured nose that he noted in his
application for asylum. Likollari’s assertion that he failed to mention the injuries because the
incident occurred several years earlier is specious because he noted those injuries on the
application for asylum filed a few months before the hearing and he recalled the exact dates of
the demonstration and his imprisonment.
7
Likollari had a translator because he apparently is not fluent in English. The transcript
of the hearing before the IJ suggests that Likollari’s pauses occurred after the translator
translated the attorney’s questions. We have no reason to believe, nor has Likollari alleged, that
his pauses and unresponsive answers are attributable to a problem with the translator.
12