Hasko v. Atty Gen USA , 134 F. App'x 575 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
6-17-2005
Hasko v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-4205
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-4205
SUZANA HASKO; ERION HASKO; KRESHNIK HASKO
Petitioners
v.
*ALBERTO GONZALES, Attorney General of the United States
Respondent
*Pursuant to F.R.A.P. 43(c)
Petition for Review of an Order
of the Board of Immigration Appeals
(No. A77 564 158)
_________
Argued: February 17, 2005
Before: Sloviter, Ambro and Aldisert, Circuit Judges.
(Filed June 17, 2005)
Steven A. Mundie (Argued)
233 Broadway, Suite 3507
New York, NY 10279
Attorney for Petitioner
1
Earle B. Wilson (Argued)
Stephen J. Flynn
United States Department of Justice
Office of Immigration Litigation
Civil Division
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044
Attorneys for Respondent
OPINION OF THE COURT
ALDISERT, Circuit Judge
Petitioners Suzana Hasko, Erion Hasko and Kreshnik Hasko, all natives and
citizens of Albania, seek review of a final order of removal issued by the Board of
Immigration Appeals (“BIA” or “Board”) on September 26, 2003. The lead petitioner is
Suzana Hasko (“Ms. Hasko”).1 We must decide whether substantial evidence supports the
Board’s determination that: (1) Ms. Hasko lacked credibility in regard to the essential
underpinnings of her asylum claim; and (2) even if her testimony was credible, the
alleged harm she suffered in Albania did not constitute “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) (2000). We have
1
Ms. Hasko’s two sons are riders on Ms. Hasko’s request for asylum and
withholding of removal. Their eligibility for asylum is therefore predicated on Ms.
Hasko’s claim.
2
jurisdiction to review the BIA’s order under 8 U.S.C. § 1252. We will deny the petition
for review.
I.
Because we write only for the parties, who are familiar with the facts, procedural
history and contentions presented, we will not recite them except as necessary to the
discussion.
II.
For a petitioner to establish that she is a refugee eligible for asylum, she must
demonstrate that she is unable or unwilling to return to her country of origin “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)
(2000). A petitioner for asylum bears the burden of supporting her claim through credible
testimony. Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). An adverse credibility
finding by the IJ should be supported by specific, cogent reasons for the disbelief in
petitioner’s testimony. Balasubramanrim v. INS, 143 F.3d 157, 161-162 (3d Cir. 1998).
We review the Board’s factual determinations under the substantial evidence
standard, meaning that we will uphold findings “to the extent that they are ‘supported by
reasonable, substantial, and probative evidence on the record considered as a whole.’”
Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir. 1998) (quoting INS v. Elias-
3
Zacarias, 502 U.S. 478 (1992)) When the BIA accepts some of an IJ’s adverse credibility
findings and rejects others “the scope of the Court’s review [] includes both the BIA’s
decision and the portion of the IJ’s decision that was left unchallenged in front of the
BIA.” Douglas v. Ashcroft, 374 F.3d 230, 234 (3d Cir. 2004).
Here, there is substantial evidence to support the Board’s adverse credibility
finding. The Immigration Judge (“IJ”) found Ms. Hasko not credible because of a number
of factors. On appeal the Board stated:
[w]hile we do not agree with the whole of the Immigration Judge’s opinion,
particularly with the Immigration Judge’s speculative conclusions about the
‘implausibility’ of attackers driving the respondent home or that the
respondent would have been unable to travel alone internationally if she
were truly traumatized by a rape – we nevertheless agree with the
Immigration Judge that overall, the respondent lacks credibility.
(Board op. at 2.)
The Board found Ms. Hasko incredible for several reasons. First, she testified that
she knew the men who raped her were “socialist” political opponents because they made
threatening phone calls to her yet she did not report these threatening calls in her written
application or during her direct testimony. (Board op. at 2.) Second, the Board noted other
inconsistencies or implausibilities in Ms. Hasko’s testimony. For example, Ms. Hasko
testified that her doctor reported her rape but she provides no testimony as to why the
police did not act on that report. (Board op. at 2.) The IJ noted inconsistencies regarding
the date of the rape and whether Ms. Hasko was threatened with an arrest in 1991. (IJ op.
at 7-8, 10-11.) Third, the Board recognized an inconsistency as to what happened during
4
the 1991 demonstration. In her written application, Ms. Hasko states that her life was
threatened by the police, but she does not mention this important fact in her oral
testimony. (Board op. at 2.)
Finally, the Board noted that none of Ms. Hasko’s testimony was corroborated by
independent documentary evidence. (Id.) Ms. Hasko contends that the IJ did not consider
the affidavits proffered by her or accord them any weight because they were not certified
in accordance with 8 C.F.R. § 1287.6. These affidavits were not actually discounted under
8 C.F.R. § 1287.6 because this section only pertains to “official records.” These
documents were part of “Group Exhibit 7.” Even if the BIA or IJ erred in not considering
these three affidavits, the result of this case is not affected because the letters do not
resolve any of the inconsistencies in Ms. Hasko’s report. See Giu Cun Liu v. Ashcroft,
372 F.3d 529, 533 (3d Cir. 2004) (concluding that the certification rule is not an “absolute
rule of exclusion, and is not the exclusive means of authenticating records before an
immigration judge”). They merely confirm the fact that Ms. Hasko participated in a
political demonstration and was subsequently arrested. They do not speak to whether she
was raped by members of the Socialist regime or by private lawless individuals.2
The State Department’s Country Report on Human Rights Practices for Albania,
2
The first statement is from Mark Kola who confirmed that Ms. Hasko participated
in the funeral demonstration of Azen Hajdari and was arrested on September 16, 1998.
The second statement is from Arben Myftari, Ms. Hasko’s former neighbor, who
corroborates her claim that she was arrested by police on September 16, 1998. The third
statement by Luljeta Veizi, another neighbor, does the same.
5
February 2001 and the Profile of Asylum Claims and Country Conditions, February 1996
also contradict Ms. Hasko’s testimony. There is no indication that a low level member of
the Democratic Party would be politically targeted based on her attendance at sporadic
demonstrations or that sexual assaults are used for political purposes. See Zubeda v.
Ashcroft, 333 F.3d 463, 477-478 (3d. Cir. 2003) (“Country reports . . . are the most
appropriate and perhaps the best resource for information on political situations in foreign
nations.”). Moreover, the United States Consul based in Tirana, Albania, opined that Ms.
Hasko’s claim that she was targeted for sexual abuse because of her participation in the
Democratic Party was not “credible at all.”
There is substantial evidence in the record to support the adverse credibility
findings of the BIA and IJ.
III.
Even if Ms. Hasko’s testimony was credible, the alleged harm she suffered in
Albania did not constitute “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) (2000). A petitioner is not eligible for asylum if the
injuries and adverse incidents she sustained were caused by private, lawless individuals.
See Matter of Kasigna, 21 I&N Dec. 357, 365 (BIA 1996) (“While a number of
descriptions of persecution have been formulated in our past decisions, we have
recognized that persecution can consist of the infliction of harm or suffering by a
6
government . . . .”).
Even if the alleged rape, mistreatment and telephonic threats were true, Ms. Hasko
did not prove anything but lawless private conduct. The Board did not accept Ms.
Hasko’s contention that she was raped by political opponents because of her involvement
with the Democratic Party in Albania. (Board op. at 4.) Ms. Hasko never identified these
attackers in any way except to say that she knew they were “socialists” because they had
been making telephonic threats. She did not mention these threatening calls in her written
application or during her direct testimony.
*****
We have considered all contentions present by the parties and conclude that no
further discussion is necessary. Substantial evidence supports the IJ and Board’s adverse
credibility findings. Even if Ms. Hasko’s testimony was credible, the alleged harm she
suffered in Albania did not constitute “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) (2000)
The petition for review will be denied.
7
AMBRO, Circuit Judge, Concurring.
I agree that Hasko’s petition for review must be denied as there is substantial
evidence to support the Board of Immigration Appeals’ (“BIA”) adverse credibility
determination. However, I write to comment on aspects of the Immigration Judge’s (“IJ”)
opinion (which the BIA cut back) that I found disconcerting.
The IJ based part of his adverse credibility ruling on the fact that Hasko said her
rapists drove her home. While this is not what we would expect to hear, that is not the
issue. The issue is whether Hasko is making up her story. If Hasko were lying but
wanted to be believed, and could make up any story she wanted, why would she have
chosen an uncommon, unexpected story, i.e., that her rapists drove her home?
In addition, it “made absolutely no sense” to the IJ that Hasko “would leave the
protection of her husband and journey outside the protection of her home.” The IJ “d[id]
not believe” that Hasko would be able to take an arduous international trip if she were
truly traumatized by a rape. This is little more than bad human speculation, i.e., guessing
without evidentiary support in the record.
Finally, the IJ wrote that it was “not credible that the respondent would not try to
have her attackers arrested again based on the severity of their attack and would not at
8
least attempt to report the event to the police.” However, Hasko gave two plausible
explanations for not reporting the rape: (1) that the police would “never find who did
this,” any hearing concerning her case would be “fake,” and “people were not getting
their rights”; and (2) that her abductors told her they would kidnap her children if she
went to the police. Moreover, it is common knowledge that when women are raped they
often do not report it. They may be ashamed or fear reprisals from their attackers, having
their own character put on trial, or being forced to relive the incident. See, e.g., Wood v.
Alaska, 957 F.2d 1544, 1552 (9th Cir. 1992); United States v. Wiley, 492 F.2d 547, 553
(D.C. Cir. 1973) (“One said to be a victim of rape may be stigmatized by society, there
may be humiliating publicity, and the necessity of facing the insinuations of defense
counsel may be a deterrent. . . . One result of all of these obstacles is that rape is one of
the most under-reported of all crimes.” (footnotes omitted)).3
Put simply, when an IJ makes a credibility ruling, he or she should base it not on
personal speculation, but rather on objective reason and evidence in the record.
3
As a general matter, presumably an IJ will often be able to find in the case history
of a credible alien the kind of inconsistencies, omissions, mistakes, and/or suspicious
statements that the IJ found in Hasko’s case, especially one who is (1) non-English
speaking, (2) potentially suffering from post-traumatic stress disorder from being raped,
and (3) an overwhelmed single mother in a new country.