Galo v. Attorney General ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
5-14-2008
Galo v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-4874
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 06-4874
____________
ARBEN GALO,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________
On Petition for Review from an
Order of the Board of Immigration Appeals
(Board No. A96-017-570)
Immigration Judge: Miriam K. Mills
____________
Argued March 3, 2008
Before: SCIRICA, Chief Judge, FISHER and ROTH, Circuit Judges.
(Filed: May 14, 2008)
Thomas C. Brannen (Argued)
Elizabeth C. Surin
Morley, Surin & Griffin
325 Chestnut Street, Suite 1305-P
Philadelphia, PA 19106
Attorneys for Petitioner
Richard M. Evans
Nancy E. Friedman (Argued)
Marion E. Guyton
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Attorneys for Respondent
____________
OPINION OF THE COURT
____________
FISHER, Circuit Judge.
Arben Galo petitions for review of the Board of Immigration Appeals’ (“BIA’s”)
dismissal of his appeal from the decision of the Immigration Judge (“IJ”) denying his
applications for asylum, withholding of removal, and protection under the Convention
Against Torture (“CAT”). For the reasons that follow, we will deny the petition insofar
as it relates to Galo’s claims for asylum and withholding of removal. We will grant the
petition with regard to Galo’s CAT claim and remand to the BIA.
I.
We write exclusively for the parties, who are familiar with the factual context and
legal history of this case. Therefore, we will set forth only those facts necessary to our
analysis.
Galo was born on July 27, 1983, in Albania. His father began participating in the
Democratic Party of Albania (DP) when Galo was a child. Galo became active with the
DP Youth Group at age fourteen. After Albania’s transition from communism, power in
the 1990s alternated between the Socialist Party and the DP. In Galo’s village, support
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for the communists remains strong. The police in the village are Socialist Party
supporters.
In his affidavit and his testimony before the IJ, Galo related that his family was
mistreated because of their affiliation with the DP. Galo states that in 1996, he was
beaten and detained overnight by the police, who accused him and his friends of
“negatively affecting the youth of Albania.” In 1998, men in plain clothes ransacked his
home and took his father to the police station, where he was detained for three days,
beaten, and underfed. In 1999, Galo participated in a peaceful DP demonstration in his
village. The police came to the demonstration and began to arrest demonstrators. Upon
learning Galo’s name, the police beat and kicked him and said that he should remember to
tell his father everything that happened.
In May 1999, Galo’s father began receiving threats over the phone that his children
would be kidnapped unless he began supporting the Socialist Party. His father fled to
Greece in September 1999 and prepared for the family to join him. Galo, who was
sixteen years old, did not join his father in Greece immediately because he did not feel
scared. Instead, he stayed in his village with his grandfather.
On November 24, 1999, Galo and two of his DP Youth Group friends were
walking to a meeting regarding an upcoming DP youth conference. They stopped at a
convenience store. Galo and one friend went into the store, but the third friend, Sami,
stopped to talk to a man who approached him outside the store. While Galo was paying
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for a soft drink, he heard a gunshot. He, his friend, and the storekeeper went outside and
saw Sami laying on the ground, while the man who had been talking to him was running
away with a gun in his hand. Sami died from the gunshot wound. Galo reported the
incident to the police; he says the police did not do anything in response to his report.
At 10:00 p.m. the same day, someone knocked on Galo’s grandfather’s door.
When Galo’s grandfather opened the door, Galo saw two men, including the man who
had killed Sami. The men pushed Galo’s grandfather aside and hit him, shooting their
guns inside the house. Galo fled, but he learned the next day that the men had ransacked
the house. They told Galo’s grandfather than Galo had “seen too much” and was “a
witness who could cause trouble.” They threatened to kill Galo just like they killed his
friend. Galo believes Sami’s murder was politically motivated, and he says that prior to
the murder, Sami had received threats that he should cease his DP activities.
Galo fled Albania six days later and joined his family in Greece, where he
remained for three years. He states that he could not get permanent residency status in
Greece and did not feel safe there because the Socialist Party is active in Greece, as it is
in Albania.
Galo entered the US with an altered Italian passport in 2002. He was detained and
referred to an IJ. On July 16, 2003, Galo submitted an I-589 Application for Asylum.
After a hearing, the IJ found Galo not credible, denied all forms of relief, and ordered him
removed to Albania. Galo appealed to the BIA.
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The BIA stated that the credibility determination did not “comport with applicable
caselaw in the United States Court of Appeals for the Third Circuit.” The BIA explained
that in light of contemporaneous country reports, “we cannot conclude that political
violence is outside the realm of possibilities in Albania or that the applicant’s story is
necessarily incredible in light of country conditions.” Despite this qualified rejection of
the IJ’s credibility finding, the BIA affirmed the IJ’s determination that Galo was not
eligible for relief, agreeing with the IJ that there was no nexus between the persecution
Galo described and any protected ground. The BIA did not discuss the IJ’s
determinations with regard to withholding of removal and CAT protection; nevertheless,
it dismissed Galo’s entire appeal. Galo filed a timely Petition for Review.
II.
To the extent that “the BIA issues a decision on the merits and not simply a
summary affirmance, we review the BIA’s, not the IJ’s, decision. We must treat the
BIA’s findings of fact as conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.” Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir.
2005) (internal quotation marks and citations omitted). To the extent that the BIA adopts
the findings of the IJ, we review the decisions of both the IJ and the BIA. Chen v.
Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004).
We review the agency’s factual findings under the deferential “substantial
evidence” standard. Gao v. Ashcroft, 299 F.3d 266, 262 (3d Cir. 2002). Under this
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standard, we will uphold the findings of the IJ and the BIA “unless the evidence not only
supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483-
84 (3d Cir. 2001).
III.
Galo asserts that the BIA erred in determining that he was not eligible for asylum,
withholding of removal, or relief under the CAT. He argues that his persecutors were
motivated by his political opinion, and therefore he qualifies for relief.
In order to qualify for asylum, an individual must prove that he has “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). In order to
qualify for withholding of removal, the applicant must demonstrate a “clear probability”
that persecution will result if the applicant is removed to a particular country. I.N.S. v.
Stevic, 467 U.S. 407, 413 (1984).
In order to qualify for relief under the CAT, the applicant must present evidence
establishing “that it is more likely than not that he or she would be tortured if removed to
the proposed country of removal.” 8 C.F.R. § 208.16(c)(2). “Torture is an extreme form
of cruel and inhuman treatment.” 8 C.F.R. § 208.18. It consists of “any act by which
severe pain or suffering, whether physical or mental, is intentionally inflicted on a
person” for purposes such as punishment, intimidation, coercion, or the obtaining of
information or a confession. Id. An act is not considered torture if it is not “inflicted by
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or at the instigation of or with the consent or acquiescence of a public official or other
person acting in an official capacity.” Id.
A.
The BIA concluded that Galo did not qualify for asylum because the persecution
he experienced was not based on one of the protected grounds (race, religion, nationality,
membership in a particular social group, or political opinion). When the intruders came
to Galo’s grandfather’s house on the night of Sami’s murder, they threatened Galo
because he had “seen too much” and was “a witness who could cause trouble.” Thus, the
threats were based on Galo’s status as the witness to a crime, rather than on his political
opinion.
Galo argues that he does not “bear the unreasonable burden” of establishing
exactly why the intruders threatened him. He states that their actions were motivated at
least in part by his political opinions, and this is sufficient to show persecution based on
one of the protected grounds. Galo does not cite our “mixed motive” cases, which would
provide the strongest support for his argument. See, e.g., Singh v. Gonzales, 406 F.3d
191, 197-98 (3d Cir. 2005); Amanfi v. Ashcroft, 328 F.3d 719, 727 (3d Cir. 2003). Even
if we take the mixed motive cases into account, the IJ and BIA determined that Galo’s
persecutors were not motivated by Galo’s political opinion, but instead by the fact that he
had witnessed a murder.
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There is substantial evidence in the record to support the determination that Galo
was not persecuted based on one of the protected grounds, and therefore we will not
disturb it. Because Galo’s mistreatment was not based on one of the protected grounds,
he does not qualify for asylum.
B.
In order to qualify for withholding of removal to a particular country, an alien must
show a clear probability that his “life or freedom would be threatened in such country on
account of race, religion, nationality, membership in a particular social group, or political
opinion.” Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003). The BIA concluded that
there was no nexus between the threats and Galo’s political opinion, so there is
substantial evidence to support the determination that Galo does not qualify for
withholding of removal.
C.
The BIA dismissed Galo’s CAT claim without providing any reasoning for its
decision. We have explained:
A petition for protection under the [CAT] differs significantly from
petitions for asylum or withholding of removal because the alien need not
demonstrate that he will be tortured on account of a particular belief or
immutable characteristic. Matter of S—V—, [21 I&N Dec. 1306 (BIA
2000)]. Rather, in assessing whether an alien is more likely than not to be
tortured in the proposed country of removal, INS regulations identify a non-
exclusive list of factors to consider: (1) evidence of past torture . . . ; (2) the
possibility the alien could relocate to another part of the country where his
torture is unlikely; (3) evidence of “gross, flagrant or mass violations of
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human rights” in the country; and (4) any other relevant country conditions
information. 8 C.F.R. § 208.16(c)(3).
Amanfi, 328 F.3d at 725.
The IJ denied Galo’s CAT claim on the basis of the adverse credibility
determination, but the BIA determined that Galo’s story was “not necessarily incredible
in light of country conditions.” The BIA’s conclusion that Galo was not threatened on
account of his political opinion forecloses his claims for asylum and withholding of
removal, but is not relevant to his claim to CAT relief. We are unable to determine, based
on the record, why the BIA denied Galo’s CAT claim. “In order for us to be able to give
meaningful review to the BIA’s decision, we must have some insight into its reasoning.”
Awolesi v. Ashcroft, 341 F.3d 227, 232-33 (3d Cir. 2003). We will remand so that the
BIA can specifically consider Galo’s CAT claim and provide insight that would allow us
to review its decision on appeal.
IV.
For the foregoing reasons, will we grant the petition for review and remand for
further agency action on Galo’s CAT claim only, in accordance with this opinion.
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