Hoxha v. Attorney General , 284 F. App'x 912 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
7-3-2008
Hoxha v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-4879
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 06-4879
____________
SAIMIR HOXHA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
Respondent
____________
On Petition for Review from an
Order of the Board of Immigration Appeals
(Board No. A95-869-962)
Immigration Judge: Rosalind K. Malloy
____________
Submitted Under Third Circuit LAR 34.1(a)
April 18, 2008
Before: SCIRICA, Chief Judge, AMBRO and FISHER, Circuit Judges.
(Filed: July 3, 2008)
____________
OPINION OF THE COURT
____________
FISHER, Circuit Judge.
Saimir Hoxha is a native and citizen of Albania. He seeks review of a final
decision of the Board of Immigration Appeals (“BIA”) ordering his removal from the
United States. He contends that the BIA erred in denying his claims for asylum,
withholding of removal, and CAT relief. For the reasons set forth below, we will deny
the petition.
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.
On June 16, 2002, Hoxha entered the country illegally. In November 2002, he
filed an application for asylum, withholding of removal and relief under the CAT. At his
November 5, 2004 merits hearing, Hoxha testified to an ongoing pattern of repression and
physical abuse, due to his political activities, as follows.
Hoxha was a member of the Legality Party, the second largest political party in
Albania, and came from an anti-Communist family. He stated he had been born in an
internment camp and he and his family were released when he was twelve years old.
Hoxha officially joined the Legality Party in October 1997.
During the period between 1997 and his arrival in the United States in 2002,
Hoxha claimed to have been involved in a number of politically-motivated altercations
with Albanian authorities. Working as vice chairman of his voting district during the
1997 elections, Hoxha testified to being detained, tortured and threatened by the police
for his involvement with the party. He said that during this time police threatened his
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brother, another party member, who later moved to Greece. In 1998, after organizing a
group of party members to attend the funeral of a party official, Hoxha claimed to have
been again detained by the police for three days, and after refusing to give the names and
addresses of the attendees to police, was again subjected to torture and beatings.
Two days before the 2000 elections, for which he was to serve as vice chairman of
his polling place, police detained him and instructed that he not interfere with the vote
count. When he refused, the police beat him. His final encounter with police came when
he and his friend and fellow Party member, Dahsnor Dosku, organized a group of party
members to attend a rally. When he later refused to reveal to police any information
about who attended the rally, he testified that police beat him into unconsciousness,
although his asylum statement states that he only had the wind knocked out of him. After
a short detention, he was transferred to a hospital where he received treatment.
About a week after this event, Hoxha and Dosku fled to Italy, and then to Toronto,
Canada, before finally arriving in Detroit, Michigan. Hoxha testified that he believed that
the Communists were still searching for him and would kill him. Though his brother was
granted political asylum in Greece, and Hoxha speaks Greek, he decided to seek asylum
in the United States because he considered it the safest destination. Hoxha’s friend,
Dosku, testified to corroborate the story, explaining that they fled the hospital together.
On May 3, 2005, the immigration judge (“IJ”) entered her decision. The IJ found
Hoxha’s testimony regarding his alleged arrests and beatings incredible due to
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inconsistencies with record evidence. The medical record submitted by Hoxha indicated
he had sustained a fractured leg, a fact that was not mentioned in his testimony or asylum
statement. Furthermore, Hoxha had no criminal record in Albania despite his allegations
that he had been arrested several times for engaging in anti-government activities. The IJ
also found his claim of being hunted by Albanian authorities to be incredible because of
his brother’s asylum in Greece and the fact that his family continued to live safely in
Albania. The IJ therefore found no credible evidence of past persecution and no basis to
find that Hoxha would be persecuted if returned to Albania.
On October 31, 2006, the BIA dismissed Hoxha’s appeal. It adopted the IJ’s
adverse credibility findings and found that his internment camp experience, which the IJ
did find to be credible, did not rise to the level of past persecution. Finally, the BIA
found that Hoxha had not provided substantial credible evidence to suggest that he was
tortured in the past or that he was likely to be tortured upon his return to Albania.
II.
We have jurisdiction in this matter under 8 U.S.C. § 1252(a)(1). Pursuant to
§ 1252(b)(4)(B), “administrative findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.” Factual findings must be
upheld if they are “supported by reasonable, substantial, and probative evidence on the
record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992).
Determinations that an alien experienced “persecution” or has a “well-founded fear of
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persecution” are findings of fact and we are to review them under the substantial evidence
standard. Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001). We also review the
adverse credibility determinations for substantial evidence. Gao v. Ashcroft, 299 F.3d
266, 272 (3d Cir. 2002). To support an adverse credibility finding, discrepancies in an
alien’s testimony must involve the “heart of the asylum claim.” Id.1 Finally, “the BIA's
finding must be upheld unless the evidence not only supports a contrary conclusion, but
compels it.” Abdille, 242 F.3d at 483-84.
III.
In his petition, Hoxha argues that the IJ erred in making an adverse credibility
determination based on his conflicting statements. He claims that he did in fact establish
past persecution based on the alleged transgressions against him by Albanian authorities.
To sustain his burden of proof for asylum, an alien must present credible evidence, and by
his credibility “may satisfy his burden, or doom his claim.” Dia v. Ashcroft, 353 F.3d
228, 247 (3d Cir. 2003). “Inconsistent statements, contradictory evidence, and inherently
improbable testimony” may support an IJ’s adverse credibility determination. Id. at 249.
Hoxha takes specific issue with the IJ’s adverse credibility determination regarding
the allegation that he broke his leg. While the medical records submitted into evidence
1
Because Hoxha’s petition was filed before May 11, 2005, the effective date of the
REAL ID Act, the Act does not apply to Hoxha’s claim. Under the REAL ID Act, “a trier
of fact may base a credibility determination . . . without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim. . . .” 8
U.S.C. § 1158(b)(1)(B)(iii). Kaita v. Att’y Gen., 522 F.3d 288, 296 (3d Cir. 2008).
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suggest that Hoxha sustained a broken leg in June 2002, he testified that he was merely
beaten by police and had not broken his leg. He offered no satisfactory explanation for
this contradiction at the hearing and has not offered one on appeal. He fails to support his
argument that the treatment listed on the medical report, “serum IV, anaesthetic,
antibiotics, vitamin therapy,” is inconsistent with a leg injury. Moreover, his claim that
the fact that he was able to travel to the United States two weeks after leaving the hospital
proves that he could not have had a broken leg, is not persuasive, and does not explain the
discrepancy in the medical report.
Hoxha’s credibility is further undermined by (1) the fact that the medical reports
and affidavits presented by Hoxha and Dosku were virtually identical, see Singh v.BIA,
438 F.3d 145, 148 (2d Cir. 2006), (2) the fact that Hoxha claims to have been arrested
several times by Albanian police, but does not have a criminal record in that country, and
(3) the lack of evidence that Albanian authorities continue to hunt for him, especially in
light of the fact that they have not pursued his brother in Greece. These claims, which the
IJ found to be incredible, go to the heart of his asylum application, and Hoxha has failed
to provide a plausible explanation for these discrepancies. There is substantial evidence
to support the IJ’s adverse credibility determination with respect to these claims, and
therefore Hoxha has failed to carry the burden of proof on his asylum claim. Dia, 353
F.3d at 247-48.
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Although the IJ found Hoxha to be essentially not credible, he gave him “the
benefit of the doubt” with respect to his claim that he and his family lived in an
internment camp until 1990. Hoxha suggests, in passing, that based on this alone he
should be granted asylum. He cites neither specific evidence, nor any authority, to
support a finding of past or future persecution. Because there has been no evidence
presented to verify what is merely a conclusory statement, this argument is deemed to
have been waived. Reynolds v. Wagner, 128 F.3d 166, 178 (3d Cir. 1997).
Hoxha initially requested asylum, withholding of removal, and relief under CAT.
However, in his brief in support of his petition for review, his argument is confined to his
eligibility for asylum and does not challenge the previous denial of his withholding of
removal or CAT claims in any meaningful way. As we have previously stated, “the
argument section of appellant’s brief [must] contain appellant’s contentions and the
reasons for them, with citations to the authorities.” United States v. Irizarry, 341 F.3d
273, 305 (3d Cir. 2003). Given that Hoxha has only made a passing reference to these
claims, without argument or citation to authority, he has waived his argument with respect
to his withholding of removal and CAT claims. Skretvedt v. DuPont, 372 F.3d 193,
202-03 (3d Cir. 2004).
IV.
For the foregoing reasons, we will deny the petition for review.
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