Astrit Ndreu v. Atty Gen USA , 128 F. App'x 295 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
5-12-2005
Astrit Ndreu v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-2006
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________________
NO. 04-2006
____________________
ASTRIT NDREU; ANTIGONI NDREU; BESHIR NDREU,
Petitioners
v.
ALBERTO GONZALES, ATTORNEY GENERAL OF THE UNITED STATES
OF AMERICA; DEPARTMENT OF HOMELAND SECURITY
______________________
On Petition for Review of Orders of the
Board of Immigration Appeals
(Board Nos. A79-317-392, A79-317-393 and A79-317-394)
______________________
Submitted Under Third Circuit LAR 34.1(a)
April 18, 2005
Before: ROTH, FUENTES and BECKER, Circuit Judges
(Filed May 12, 2005 )
________________________
OPINION OF THE COURT
________________________
BECKER, Circuit Judge.
Astrit Ndreu, a native and citizen of Albania, petitions for review of the decision
of the Board of Immigration Appeals (“BIA”) affirming the decision of the Immigration
Judge (“IJ”) denying his claims for asylum, withholding of removal, and protection under
the Convention Against Torture.
I. Facts and Procedural History
Ndreu and his family were interned from 1958 to 1991, when the Communists fell,
in a camp called Shtyllas. Ndreu was not released from internment until he was thirty-
five years old, having spent essentially his entire life in the internment camp. During this
time, he was permitted to work and go to school on the internment camp grounds. Upon
release, Ndreu joined the Democratic Party (DP) and the Association of the Ex-Politically
Persecuted. He went to Tirana and began working for the Chamber of Commerce in 1993
and pursued a college degree.
Ndreu claimed that, during the 1997 governmental collapse, a bomb was set off at
a hotel where he had helped organize a DP meeting. The police were called but did not
respond, leading Ndreu and others to suspect that the police were involved in the
bombing. The next day another explosion occurred at the home of a relative, who also
was active in the DP. Ndreu also suspected that this incident was politically motivated.
On the way back from this same DP meeting to Tirana, his five-car convoy was stopped
and an unknown person shot at the convoy, wounding his cousin in the leg.
Shortly thereafter, in June 1997, the Socialist Party came into power. During the
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initial period of Socialist control, Ndreu claimed that there were peaceful DP
demonstrations in Tirana; however, Ndreu began to fear for his life. He testified that he
“was afraid that someone may attack [him] or kill [him] and other supporters of the
Democratic Party. But thank[s] to [his] supporters and . . . the few people he knew at the
police, nothing in particular happened to him.” AR 155. He claimed that a friend, who
was a DP supporter, was killed by the police in 1998, and that the leader of the DP was
killed on September 12, 1998, by people who were widely believed to be involved with
the police and supporters of the Socialist Party. AR 154, 156. During this time, Ndreu
claimed that he participated in rallies and meetings for the DP, but felt he was constantly
under surveillance, in particular because in 1998 someone (he vacillated between saying
this person was a relative or a friend) warned him that he was on a “hit list.”
On June 19, 1999, Ndreu was dragged out of his car by two people who stole the
car. While they let him go, he says the assailants claimed they would “take [his] life”
next time. AR 162. Ndreu reported the incident to the police, but said that the police
would not respond because the assailants had some connection to the police inspector.
AR 162. Ndreu admitted that he was not physically injured by the incident. According to
Ndreu, the police inspector was fired ten days after this incident, but, it was not clear
whether he was terminated because of anything related to the car incident.
Nrdeu came to the United States on February 8, 2000, on a tourist visa. His wife
Antigoni and minor son Beshir followed on October 13, 2000, also on tourist visas. On
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April 19, 2001, they were issued Notices to Appear, each conceded removability, but
sought asylum and withholding of removal. The IJ denied the asylum claims, and the
BIA affirmed without opinion.
Generally, the IJ found Ndreu to be credible, but she found as a legal matter that
Ndreu did not establish an asylum claim. First, the IJ found that the years of internment
did constitute past persecution; however, she held that country conditions had changed so
fundamentally with the fall of the Communist government as to rebut any presumption of
future persecution that might arise from those prior years of persecution. The IJ stated,
“Although is quite clear as crystal that the respondent was persecuted for 35 years of
internment, the application for asylum can not be granted on that bas[i]s. Fundamental
changes in Albania preclude it.” A11 ; See Abdulrahman v. Ashcroft, 330 F.3d 587, 592
n.3 (3d Cir.2003)) (“The presumption [of future persecution] . . . is rebutted where the
Government establishes by a preponderance of the evidence that . . . conditions in the
applicant’s country have changed so as to make his or her fear no longer reasonable.”).
Our review is limited by the “substantial evidence” standard, under which “the
administrative findings of fact are conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). The determination
that an asylum applicant faced past persecution, or has a well-founded fear of future
persecution, is a factual conclusion subject to this deferential review. Gao v. Ashcroft,
299 F.3d 266, 272 (3d Cir. 2002). We therefore must uphold the IJ’s findings if they are
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“supported by reasonable, substantial, and probative evidence on the record considered as
a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992).
II. Discussion
A. Post-1992 Allegations of Persecution
The IJ found that none of the other specific incidents which occurred after 1992,
such as the bombing of the hotel and the home of Ndreu’s relative, the shooting at the
convoy of cars, and the car-jacking, constituted past persecution. As to the bombing of
the hotel and the relative’s home in 1997, the IJ found there was a lack of evidence as to
who was responsible for the bombings or that Ndreu or his family were targeted because
of their political activities. A15. The IJ similarly concluded that there was not sufficient
evidence of the motive or the identity of the perpetrators in the shooting at the convoy of
cars or the 1999 car-jacking to establish a persecution claim.
While the IJ may have gone too far in discounting Ndreu’s supposition that there
was some sort of political motivation for these incidents, particularly with regard to the
1999 car-jacking, the IJ’s finding that these incidents were not past persecution is
supported by substantial evidence. Foremost is the fact that in 1997, at the time the
bombings and the shooting occurred, the country was in a virtual state of anarchy in
which violence abounded. The IJ found that, without more evidence about the assailants
in each case, these incidents might have been part of the general violence going on at that
time. See Lie v. Ashcroft, 396 F.3d 530, 535 (3d Cir. 2005) (requiring evidence that a
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robbery was perpetrated “on account of” a protected ground, particularly where similar
acts of robbery occurred with regularity in Indonesia).
With respect to the car-jacking, the IJ found a similar lack of evidence that the
police orchestrated this incident or that it was politically motivated, finding Ndreu’s
testimony “unconvincing as to whether that was a crime against him calculated to steal his
car or whether it was an offense against him calculated to threaten him because of his
political opinion.” AR 22. Moreover, the IJ found that the car-jacking was not
sufficiently severe to constitute persecution because Ndreu “needed no medical care and
does not actually testify to any severe harm or really even any severe threats against the
respondent.” AR 21-22. See Lie, 396 F.3d at 536 (“[T]wo isolated criminal acts,
perpetrated by unknown assailants, which resulted only in the theft of some personal
property and a minor injury, is not sufficiently severe to be considered persecution.”).
These conclusions by the IJ are supported by the record, and so, in our view, there is
substantial evidence to support the IJ’s conclusion that this incident did not rise to the
level of past persecution.
B. Well-Founded Fear of Future Persecution
After establishing that there was no post-1992 persecution, the IJ went on to
conclude that Ndreu had not established a well-founded fear of future persecution. First,
the IJ found that Ndreu did not exhibit a subjective fear of future persecution, in
particular because he traveled widely in Europe (as his passport reflected) during this
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period and returned to Albania after each trip. The IJ reasonably inquired, “If in fear,
why return?” A24. Additionally, the IJ was troubled by the fact that Ndreu continued to
remain in Albania, indeed in the same home and job, for several years after these
incidents occurred, finding that he “did not act as a true refugee.” A25.
Second, the IJ held that Ndreu had not established that, objectively, he has
reasonable grounds to fear return to Albania. First, she found that there is no evidence
Ndreu “participates in a party that is currently the subject of intense political persecution
in Albania,” pointing to the State Department reports which indicate that the DP has
access to the media, has been able to run in elections, and has won in several instances.
AR 24-25. Thus, the IJ held that “the Court cannot find that the mere fact that the
respondent is a member of the Democratic Party and is Albanian suffices to compel the
Court to find . . . he has a reasonable or well-founded fear of future persecution in
Albania.” AR 26.
The IJ was certainly correct that circumstances have changed fundamentally since
1991 such that any presumption arising from prior persecution is rebutted by changed
country conditions. The conclusion that country conditions have changed is supported,
inter alia, by the evidence in the State Department Report in the record.1 The IJ also had
1
Ndreu complains that the IJ also relied upon the British Home Office Assessment to
determine country conditions in Albania and as a guide in questioning the petitioner on
direct and cross-examination. There does not appear to be any error in the IJ’s reliance on
this document, particularly since she made clear that she used this document as a
reference and corroborated it with the State Department report findings. A7.
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substantial evidence to support her conclusion that Ndreu did not establish a well-founded
fear of future persecution based both on the evidence of his subjective fear and the
objective lack of persecution of members of the Democratic Party today in Albania.
The petition for review will be denied.
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