Shkelqim Hoxha v. U.S. Attorney General , 179 F. App'x 629 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-14283
May 4, 2006
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
BIA No. A79-443-425
SHKELQIM HOXHA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(May 4, 2006)
Before ANDERSON, BIRCH and MARCUS, Circuit Judges.
PER CURIAM:
Shkelqim Hoxha, a native and citizen of Albania, petitions this Court to
review the final order of the Board of Immigration Appeals (“BIA”), which
affirmed the decision of the immigration judge (“IJ”) denying Hoxha’s
applications for asylum, withholding of removal under the Immigration and
Nationality Act (“INA”), and withholding of removal under the United States
Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment (“CAT”). On appeal, Hoxha argues that the IJ erred by denying his
petition for withholding of removal, under the INA, after finding that he did not
demonstrate past persecution or a well-founded fear of future persecution based on
his association with the Democratic Party and former Democratic Party leader,
Azem Hajdari.1 After careful review, we deny the petition for review.
When the BIA issues a decision, we review only that decision, “except to the
extent that it expressly adopts the IJ’s opinion.” Al Najjar v. Ashcroft, 257 F.3d
1262, 1284 (11th Cir. 2001). “Insofar as the Board adopts the IJ’s reasoning, [this
Court] review[s] the IJ’s decision as well.” Id. Here, the BIA expressly adopted
the IJ’s reasoning and briefly articulated its reasons for doing so. Thus, we review
the decisions of both the IJ and the BIA.
1
Because we find that Hoxha has not established a case for asylum, we do not consider
whether he satisfied the higher standard for withholding of removal under the INA. See Forgue v.
Att’y Gen., 401 F.3d 1282, 1288 n.4 (11th Cir. 2005); Najjar v. Ashcroft, 257 F.3d 1262, 1292-93
(11th Cir. 2001). As for his application for CAT relief, we lack jurisdiction to review his claim
because he did not appeal the IJ’s decision on CAT relief to the BIA. See 8 U.S.C. § 1252(d)(1)
(requiring an applicant to exhaust all administrative remedies before judicial review is appropriate);
see also Sundar v. I.N.S., 328 F.3d 1320, 1325 (11th Cir. 2003) (noting that many courts have held
that “where the claim is within the purview of the BIA which can provide a remedy, the exhaustion
requirement applies with full force.” (citations omitted)).
2
To the extent that the decisions of the BIA or IJ were based on a legal
determination, our review is de novo. D-Muhumed v. U.S. Att’y Gen., 388 F.3d
814, 817 (11th Cir. 2004). Their factual determinations are reviewed under the
substantial evidence test, and we “must affirm the BIA’s [or IJ’s] decision if it is
supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Al Najjar, 257 F.3d at 1283-84 (quotation omitted). We
“cannot engage in fact-finding on appeal, nor may we weigh evidence that was not
previously considered below.” Id. at 1278. Therefore, a finding of fact will be
reversed “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 . . . .”
Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc), cert. denied,
125 S.Ct. 2245 (2005); see also 8 U.S.C. § 1252(b)(4)(B) (“[T]he administrative
findings of fact are conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary . . . .”). Likewise, a credibility determination
is reviewed under the substantial evidence test, and we “may not substitute its
judgment for that of the BIA with respect to credibility findings.” D-Muhumed,
388 F.3d at 818.2
2
The REAL ID Act of 2005 amended the law regarding credibility determinations by
adding INA §§ 208(b)(3)(B)(iii) , 1229a(c)(4)(C). Section 101(a)(3) and (d), Pub. L. No. 109-13,
119 Stat. 321, 303, 304-305. The Act states, however, that these provisions “shall apply to
applications for asylum, withholding, or other relief from removal made on or after” the date of
enactment of the act, May 11, 2005. Pub. L. No. 109-13, 119 Stat. at 305. Therefore, because
3
An alien who arrives in or is present in the United States may apply for
asylum. See INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Attorney General has
discretion to grant asylum if the alien meets the INA’s definition of a “refugee.”
See INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). A “refugee” is any person who is
unwilling to return to his home country or to avail himself of that country’s
protection “because of persecution or a well-founded fear of persecution on
account of race, religion, nationality, membership in a particular social group, or
political opinion . . . .” 8 U.S.C. § 1101(a)(42)(A).
The asylum applicant carries the burden of proving statutory “refugee”
status. See Al Najjar, 257 F.3d at 1284; 8 C.F.R. § 208.13(a). The applicant
satisfies this burden by showing, with specific and credible evidence: (1) past
persecution on account of a statutorily listed factor, or (2) a “well-founded fear”
that his or her statutorily listed factor will cause future persecution. 8 C.F.R. §
208.13(a), (b); Al Najjar, 257 F.3d at 1287. “[P]ersecution is an extreme concept,
requiring more than a few isolated incidents of verbal harassment or intimidation.”
Sepulveda v. U.S. Att’y Gen., 378 F.3d 1260, 1264 (11th Cir. 2004) (citation and
internal quotation marks omitted). Put another way, “[m]ere harassment does not
amount to persecution.” Id. (citation omitted). An asylum applicant may not show
Hoxha’s application for asylum was filed before May 11, 2005, these provisions do not apply in this
case.
4
merely that he has a political opinion, but must show that he was persecuted
because of that opinion. I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483 (1992).
If the alien establishes past persecution, it is presumed that his life or
freedom would be threatened upon return to the country of removal unless the
government shows by a preponderance that the country’s conditions have changed
such that the applicant’s life or freedom would no longer be threatened or that the
alien could relocate within the country and it would be reasonable to expect him to
do so. See 8 C.F.R. §§ 208.13(b), 208.16(b). An alien who has not shown past
persecution may still be entitled to asylum if he can demonstrate a future threat to
his life or freedom on a protected ground in his country. 8 C.F.R. §§ 208.13(b)(2),
208.16(b)(2).
To establish a “well-founded fear” of persecution, “an applicant must
demonstrate that his fear of persecution is subjectively genuine and objectively
reasonable.” Najjar, 257 F.3d at 1289. The petitioner’s well-founded fear of
persecution must be on account of, or because of, one of the statutorily listed
factors. See Elias-Zacarias, 502 U.S. at 483. To establish the necessary causal
connection, the alien must present “specific, detailed facts showing a good reason
to fear that he or she will be singled out for persecution on account of” a statutorily
listed factor. Sepulveda, 401 F.3d at 1231 (quotation omitted).
5
Hoxha argues that the IJ and the BIA mischaracterized his testimony about
Albania’s National Intelligence Service, or “SHIK” officers, and did not accord
adequate weight to Albania’s poor human rights record and political tensions with
Democratic Party members there. He also asserts that the IJ erred by making an
adverse credibility finding, to the extent the IJ noted inconsistencies in his
testimony about minor details such as specific dates and failed to enumerate the
specific inconsistencies in his testimony.3
Here, substantial evidence supports the IJ’s and the BIA’s finding that
Hoxha was not eligible for asylum based solely on his testimony. As the IJ noted,
Hoxha (1) failed to testify at all about an incident in which the police allegedly
hijacked Hoxha and his brother, and put a gun in Hoxha’s mouth; (2) confused
dates of pertinent events; (3) misstated the year of the incident that took place in
Skroda; (4) could not remember the name of the doctor who treated him and his
brother after they allegedly were beaten on May 5, 2001, despite the fact that he
provided a letter from the doctor; and (5) testified that his brother’s whereabouts
were unknown for over four months, but wrote in his asylum application that his
brother was living in New York. See Dalide v. U.S. Att’y Gen., 387 F.3d 1335,
3
As for Hoxha’s argument that inconsistencies in his testimony were likely the result of
translation errors, before the IJ he explicitly stated that he was not going to challenge the
interpreter’s accuracy. Accordingly, we decline to consider this argument as it was waived.
6
1343 (11th Cir. 2004) (inconsistencies between applicant’s testimony and other
record evidence supports adverse credibility finding).
Although uncorroborated but credible testimony may be sufficient to sustain
an applicant’s burden of proving eligibility for asylum, “[t]he weaker an
applicant’s testimony, . . . the greater the need for corroborative evidence.” Yang
v. U.S. Attorney Gen., 418 F.3d 1198, 1201 (11th Cir. 2005) (citation omitted); see
also Dalide v. U.S. Attorney Gen., 387 F.3d 1335, 1343 (11th Cir. 2004) (affirming
the BIA’s adverse credibility determination, which was based upon its finding that
the applicant’s testimony conflicted with his answers to interrogatories, affidavit,
deposition, and other documentary evidence). Given the inconsistencies in
Hoxha’s testimony,4 both the IJ and the BIA looked to Hoxha’s corroborative
evidence, which included: (1) a vague letter about Hoxha’s service for the DP,
which made no mention of his unofficial, volunteer bodyguard position for
Hajdari; and (2) a letter from his parents, which made no mention of the incident in
which Brisku officers beat him in front of his mother. See Yang, 418 F.3d at 1201(holding that even where there is no explicit adverse credibility finding, an
applicant’s weak testimony will underscore the need for corroborative evidence).
4
We are unpersuaded by Hoxha’s characterization of these inconsistencies as minor in
nature. The IJ found, and the BIA agreed, irrespective of the nature or degree of the inconsistencies,
Hoxha testified inconsistently on numerous important incidents, upon which his asylum application
depended, including one incident in which he claimed a gun was placed in his mouth.
7
The IJ found these items insufficient to satisfy Hoxha’s burden to present the
requisite evidence to corroborate his story, which the IJ found, in part, not credible.
Simply put, based on our own review, while Hoxha may subjectively fear
future persecution, the evidence in the record does not compel the conclusion that
he will be singled out for his membership based on a statutory listed factor. See
Sepulveda, 401 F.3d at 1231; see also Adefemi, 385 F.3d at 1027 (noting “the mere
fact that the record may support a contrary conclusion is not enough to justify a
reversal . . .”). Therefore, the IJ’s decision to deny asylum, and the BIA’s
affirmance of that decision, is supported by substantial evidence and we must deny
his petition.
PETITION DENIED.
8