Maliqi v. Attorney General of the United States , 262 F. App'x 426 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
1-23-2008
Maliqi v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3169
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 06-3169
____________
JASHAR MALIQI,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________
On Petition for Review from an
Order of the Board of Immigration Appeals
(Board No. A98-166-889)
Immigration Judge: Honorable Esmeraldo Cabrera
____________
Submitted Under Third Circuit LAR 34.1(a)
January 11, 2008
Before: FISHER, HARDIMAN and STAPLETON, Circuit Judges.
(Filed: January 23, 2008)
____________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
Appellant Jashar Maliqi petitions for review of an order of the Board of
Immigration Appeals (BIA) denying his application for asylum, withholding of removal,
and protection under the Convention Against Torture (CAT). Because we write for the
parties, we recite only the facts essential to our decision.
I.
Maliqi is an ethnic Albanian citizen of Kosovo who entered the United States on
November 5, 2003. Maliqi testified that throughout the 1990s, he had been arrested,
detained, threatened, and once beaten by Serbian officials. Later, as part of the Serbian
incursion in March of 1999, Maliqi was forced from Kosovo with other ethnic Albanians.
His father, unable to evacuate due to illness, was killed by Serbian police forces. Maliqi
relocated to Albania where he remained until NATO forces cleared the way for his return
in June of 1999.
Maliqi testified that upon returning to Kosovo, he resumed his political activities
with the Democratic League of Kosovo (DLK) and served as an election observer in
2001. Because of his affiliation with the DLK, Maliqi claimed that twice he was targeted
for persecution. First, Maliqi testified that while he was monitoring the 2001 elections,
“unknown persons” threatened him to quit his political activities. Second, he claimed that
two years later several Albanian-speaking men entered his taxicab and held a gun to his
head. The men beat Maliqi for several hours, told him to terminate his political activities
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with the DLK, and left him unconscious in the street. Maliqi left Kosovo shortly after
this incident, but his wife and four children remain there.
II.
We review final orders of removal under 8 U.S.C. § 1252(a)(1). Where the BIA
adopts and expands upon the findings of the IJ, we review both decisions. Chen v.
Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). Whether the applicant has met his burden of
establishing eligibility for asylum is a factual determination reviewed under the
substantial evidence standard. Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). If
substantial evidence supports the decisions below, we will affirm “unless any reasonable
adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B);
Dia v. Ahscroft, 353 F.3d 228, 247 (3d Cir. 2003).
Despite this deferential standard, we must have something to review. Abdulai v.
Ashcroft, 239 F.3d 542, 555 (3d Cir. 2001). The agency must provide not only some
insight into its reasoning, but also an explanation whether its dismissal of an applicant’s
petition is based on a legal or factual determination. Awolesi v. Ashcroft, 341 F.3d 227,
232 (3d Cir. 2003). In addition, where the BIA or the IJ discredits an applicant’s
testimony, it should explain “why or what aspects of the accounts it found unbelievable.”
Id. (citing Abdulai, 239 F.3d 542 and Sotto v. I.N.S., 748 F.2d 832 (3d Cir. 1984)).
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III.
The gravamen of Maliqi’s appeal is that the agency’s decisions fail to specify the
legal bases upon which they are predicated, and thus foreclose proper appellate review.
We agree because although the agency’s decision alludes to at least four grounds for
denying Maliqi’s application, none is determinative.
First, the IJ suggested that Maliqi’s testimony was “sketchy” and implausible. But
neither the IJ nor the BIA explain what aspects of Maliqi’s testimony were unbelievable.
See Awolesi, 341 F.3d at 232. Even more fundamentally, the agency failed to state
whether it was making an adverse credibility determination.
Second, the IJ characterized Maliqi’s testimony as “lacking in specificity” and
“based on speculation,” which suggests that the IJ found Maliqi’s testimony
uncorroborated. But the agency neither identified the portions of Maliqi’s testimony for
which it would be reasonable to expect corroboration, nor proceeded through the second
or third steps we established in Voci v. Gonzales, 409 F.3d 608, 616-17 (3d Cir. 2005)
(quoting Abdulai, 239 F.3d at 554), which require: “(2) an inquiry as to whether the
applicant has provided information corroborating the relevant facts; and, if he or she has
not, (3) an analysis of whether the applicant has adequately explained his or her failure to
do so.”
Third, the IJ indicated that it was “unclear” whether Maliqi had suffered past
persecution for purposes of political asylum under 8 U.S.C. § 1158. Because Maliqi
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could not definitively identify the ethnicity and motivation of his attackers on various
occasions, the IJ found his claim of past persecution speculative. However, the agency
never determined whether Maliqi failed to show past persecution, much less whether that
failure was because the attacks he suffered were not severe enough to constitute a “threat
to life or freedom,” Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005) (citing Fatin v.
I.N.S., 12 F.3d 1233, 1240 (3d Cir. 1993)), or because they were not “on account of” his
“religion, nationality, membership in a particular social group, or political opinion.” Id.
at 535 (citing 8 U.S.C. § 1101(a)(42)(A) and 8 C.F.R. § 1208.13(b)(1)).
Finally, the IJ stated, “I cannot conclude . . . that there is a well-founded fear of
future persecution,” explaining:
I also note that there is a lack of anything that would rebut a presumption of
any well-founded fear of future persecution in this case. It’s clear from the
background documentation submitted that there’s been a fundamental
change in circumstances in Kosovo . . . .
(App. 13). This explanation is inadequate and contradictory. The presumption of future
persecution arises only after a petitioner establishes past persecution, and it is the
government’s burden to rebut this presumption with evidence of changed circumstances.
See Lukwago v. Ashcroft, 329 F.3d 157, 174 (3d Cir. 2003). Here, because the IJ never
determined that Maliqi suffered past persecution, the reference to an unrebutted
presumption of future persecution is a non sequitur. If the IJ found that Maliqi suffered
no past persecution, there would be no presumption of future persecution to rebut, and
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Maliqi would bear the burden of showing his “subjective fear of persecution . . .
supported by objective evidence that persecution is a reasonable possibility.” Id. at 175.
If, on the other hand, the IJ determined that Maliqi suffered past persecution, a
rebuttable presumption of future persecution would arise. Id. at 174. The government
could then rebut this presumption with evidence of “a fundamental change in
circumstances such that the applicant no longer has a well-founded fear of persecution.”
Id. (citing 8 C.F.R. § 208.13(b)(1)(I)). As far as we can tell, the IJ and BIA apparently
believed that such evidence of changed circumstances existed. But neither the IJ nor the
BIA explained what had changed in Kosovo and why such changes were relevant to
evaluating Maliqi’s allegedly well-founded fear of future persecution.
IV.
In sum, the decisions of the IJ and BIA are sufficiently vague, incomplete, and
contradictory that we lack sufficient basis for proper review of Maliqi’s claims.
Accordingly, we will remand this case to the Board of Immigration Appeals for
subsequent agency action consistent with this opinion.
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