Asllani v. Attorney General of the United States , 184 F. App'x 166 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
6-7-2006
Asllani v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2707
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 05-2707
ILIRJAN ASLLANI,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of a Final Decision
of the Board of Immigration Appeals
BIA No. A79 430 028
Immigration Judge: Honorable Rosalind K. Malloy
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
May 12, 2006
Before: BARRY, SMITH, and TASHIMA,* Circuit Judges
(Filed: June 7, 2006)
OPINION OF THE COURT
TASHIMA, Circuit Judge.
*
The Honorable A. Wallace Tashima, Senior United States Circuit Judge, United
States Court of Appeals for the Ninth Circuit, sitting by designation.
1
Ilirjan Asllani (“Asllani”), a native and citizen of Albania, seeks review of
the Board of Immigration Appeals’ (“BIA”) order affirming an Immigration
Judge’s (“IJ”) denial of his application for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”). For the reasons set
forth below, we deny the petition for review.1
I.
Asllani entered the United States with a false Italian passport on December
24, 2001, and immediately applied for asylum, withholding of removal, and
protection under the CAT. Asllani claimed that he left Albania because he was
being persecuted on account of his political beliefs and his membership in a
particular social group – his nuclear family. Removal proceedings were promptly
initiated, and on December 25, 2001, Asllani was served with a notice to appear
before an IJ.
At his removal hearing, Asllani testified that he had experienced problems
in Albania as a result of his membership in the Albanian Democratic Party. He
testified that his father, sister, and sister’s husband were all members of the
1 The IJ had jurisdiction under 8 C.F.R. § 208.2(b) and the BIA
exercised appellate jurisdiction over the IJ’s decision under 8 C.F.R. §
1003.1(b)(3). We have jurisdiction to review a final order of removal under §
242(a)(1) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1252(a)(1).
See Wang v. Gonzales, 405 F.3d 134, 138 (3d Cir. 2005).
2
minority Democratic Party, and that he had suffered persecution at the hands of
the majority Socialist Party.2 In support of this claim, Asllani cited two incidents.
First, Asllani claimed that he was not allowed to vote in the elections of 2000
because he was a member of the Democratic Party. However, Asllani
acknowledged that he was not registered to vote and his party membership card
had expired. Second, Asllani testified that on October 21, 2001, four unknown
men entered his home and severely beat him. Asllani further testified, however,
that he did not know why they beat him and all they said was that they would
return. Asllani later concluded that they must have been motivated by their
opposition to his political beliefs.
Asllani produced an Albanian police report, which was admitted into
evidence, describing the October 2001 incident. The document indicated that an
investigation was underway and that Asllani and his family were under police
watch, but that the police could not guarantee that this event would not recur.
In addition, the IJ considered the State Department profile on Albania, dated
2
Asllani explained that his political activities consisted of assisting as
a campaign worker in the 2001 mayoral campaign of a local Democratic Party
candidate. Although the candidate did not win, Asllani testified that she has
continued her political activities. There was no testimony that the mayoral
candidate, or any of her other campaign workers, have suffered persecution as a
result of their political activity.
3
May 2001, which reported that the Democratic Party was recognized by the
government and participated in most parliamentary activities. The profile also
stated that the 2000 national elections were reported to be calm and orderly, and
were generally free and fair. A letter from the State Department dated March 31,
2003, however, indicated that the Democratic Party did credibly report some
incidents of harassment of its members in 2001 and some politically-motivated
dismissals from positions with the government in 2001, but there were no such
reports for 2002. The letter also indicated that the Albanian government generally
respected citizens’ right of association.
Asllani also sought to introduce a copy of a certification of Asllani’s
membership in the Democratic Party, a copy of his purported membership card,
and hospital records describing the extent of his injuries stemming from the
October 2001 incident. These documents, however, were excluded from evidence
by the IJ because they could not be properly authenticated.
In support of his second basis for relief, Asllani testified that while in
Albania he was persecuted for the criminal activities of one of his sisters. Asllani
claims that this persecution resulted from his membership in a particular social
group – his family. Asllani’s sister had been convicted of defrauding various
individuals trying to obtain visas. Asllani testified that an Albanian custom of
4
“blood feuds,” meant that as the sole unmarried son, he was targeted for
retribution by the families of his sister’s victims. He testified that the tradition is
to target the male of the family, and that he was considered the male of the family
because his father was deceased and he was the only remaining unmarried male.3
Asllani further testified that his family and he had received threats and
demand for payment from the families of his sister’s victims, but did not provide
any specifics regarding the nature of the threats, their severity, their frequency, or
when they had been made. Asllani also explained that he did not know if the
attack he suffered on October 21, 2001, was motivated by his political affiliations
or by people taking revenge as a result of his sister’s fraudulent activity.
The May 2001 State Department Profile on Albania noted that some clans in
the northern portion of Albania still engaged in “blood feuds,” and noted that the
government might not be able to protect the targets of the feud in certain cases.
Although Asllani characterized the threats against him as a “blood feud” directed
at him to seek vengeance for his sister’s crimes, Asllani also testified that he had
personally assumed the legal obligation to repay his sister’s victims in order to
have his sister’s prison term reduced from five years to six months. Asllani
3
According to Asllani, his brother was not targeted because once you
are married, you are no longer considered part of the family tree.
5
estimated that he still owes a total of $30,000 to various individuals.
After consideration of Asllani’s testimony and evidence, the IJ denied
Asllani’s claims for relief, concluding that Asllani’s testimony was not credible
and that he had failed to establish sufficient evidence of past persecution, or a
likelihood of future persecution. On appeal, the BIA affirmed the IJ’s decision
only “insofar as she found that the respondent had not satisfied the applicable
burden of proof for the requested forms of relief.” The BIA noted that “[e]ven if
credible, [Asllani] failed on this record to establish past persecution or a well-
found fear of future persecution.” Asllani now appeals from the BIA’s decision
affirming the IJ.
II.
“[W]hen the BIA both adopts the findings of the IJ and discusses some of
the bases for the IJ’s decision, we have authority to review the decisions of both
the IJ and the BIA.” He Chun Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004).
“We must uphold the BIA’s factual findings if they are ‘supported by reasonable,
substantial, and probative evidence on the record considered as a whole.’” Lie v.
Ashcroft, 396 F.3d 530, 534 n.3 (3d Cir. 2005) (quoting INS v. Elias-Zacarias, 502
U.S. 478, 480 (1992)). “A determination of whether an asylum applicant has
suffered from ‘persecution’ or whether that individual has a ‘well-founded fear of
6
persecution’ is factual and thus is entitled to deference.” Wang, 405 F.3d at 138(citation omitted).
III.
The framework under which we review administrative determinations is
well established. Section 208(a) of the INA, 8 U.S.C. § 1158(b), provides the
Attorney General with discretion to grant asylum to a “refugee,” with certain
exceptions. In general, a “refugee” is “any person who is outside any country of
such person’s nationality . . . who is unable or unwilling to return to, and is unable
or unwilling to avail himself or herself of the protection of, that country 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.” INA §
101(a)(42)(A); 8 U.S.C. § 1101(a)(42)(A). An applicant has the burden to
establish that he fits within this definition of refugee. 8 C.F.R. § 1208.13(a).
An applicant may establish his refugee status by showing either that he has
been subject to past persecution or has a well-founded fear of future persecution.
See He Chun Chen, 376 F.3d at 223-24. The persecution, however, must be “on
account of” one of the five statutory bases. 8 C.F.R. § 1208.13(b). The Supreme
Court, in Elias-Zacarias, held that while an asylum-seeker would not “be expected
to provide direct proof of his persecutors’ motives,” nevertheless, since the statute
7
makes motive critical, he must provide some evidence of motive, direct or
circumstantial. Elias-Zacarias, 502 U.S. at 483-84. In addition, in order to obtain
reversal of the BIA’s determination, the asylum-seeker must show that the
evidence he presented was so compelling that no reasonable fact-finder could fail
to find the requisite fear of persecution. Id.While the decision to grant or deny an applicant asylum is discretionary,
“the Attorney General must grant withholding of removal if the alien demonstrates
a ‘clear probability’ that, upon return to his or her home country, his or her ‘life or
freedom would be threatened’ on account of race, religion, nationality,
membership in a particular social group, or political opinion.” He Chun Chen, 376
F.3d at 223 (citation omitted). “An alien who fails to establish that he or she has a
well-founded fear of persecution, so as to be eligible for a grant of asylum,
necessarily will fail to establish the right to withholding of removal.” Id.Under the CAT, an applicant is entitled to withholding of removal if he
establishes 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. § 1208.16(c)(2). The
regulation defines torture as “any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted” by a public official for certain
purposes. 8 C.F.R. § 1208.18(a)(1).
8
A.
Asllani argues that the IJ improperly excluded several documents from
evidence that would have corroborated his testimony as to his claim of
persecution. The documents included a membership certificate for the Democratic
Party, a purported membership card, and hospital records demonstrating that
Asllani was attacked on October 21, 2001. Asllani contends that the exclusion of
these documents, and the IJ’s corresponding decision not to consider them in
assessing Asllani’s credibility, was a violation of his due process right to a fair
hearing.
Asllani’s arguments, however, are unavailing. Even crediting Asllani’s
testimony and evidence, Asllani nonetheless failed to meet his burden of
demonstrating that he was persecuted on account of a statutorily-protected ground
because he was unable to tie any alleged persecution to his political beliefs. See
Part III(B), infra. In fact, both the IJ’s and the BIA’s reasoning turned on the fact
that Asllani was unable to demonstrate that any of the violence or harassment he
suffered was a result of his political affiliations, and not on a lack of corroborating
evidence.
Moreover, the possibility that the IJ may not have credited Asllani’s
testimony is rendered moot by the BIA’s opinion, in which it affirmed the IJ even
9
assuming the credibility of Asslani’s testimony. See He Chun Chen, 376 F.3d at
226 (explaining that remand to the BIA is inappropriate where excluded
documents did not affect the facts and evidence upon which an agency’s decision
is based). Accordingly, because Asllani failed to demonstrate that any persecution
he suffered was on account of his political beliefs, and because the BIA credited
Asllani’s testimony thus rendering his argument moot, we reject this argument.
B.
Asllani argues that the adverse findings of the BIA and the IJ are not
supported by substantial evidence because (1) the IJ’s adverse credibility finding
was erroneous, and (2) he satisfied his burden of establishing that he suffered
persecution on account of his political beliefs and because of his membership in a
particular social group.
Insofar as Asllani argues that the IJ’s adverse credibility finding warrants
reversal, his claim is moot. As discussed in Part III(A), supra, the BIA credited
Asllani’s testimony and affirmed the IJ’s decision on the ground that Asllani failed
to satisfy the applicable burden of proof. Therefore, because the BIA’s decision
was not based on the IJ’s adverse credibility finding, we reject this argument.
Asllani’s argument that he suffered persecution on account of his political
beliefs finds little support in the record. The only evidence Asllani offered with
10
regards to the alleged persecution on account of his political beliefs was testimony
that he was prevented from voting in the 2000 election, and testimony regarding
an incident where four unknown assailants attacked him in his home. However,
Asllani is unable to carry his burden of demonstrating that these incidents were
“on account of” his political views. See Lie, 396 F.3d at 535 (finding that
petitioner’s testimony regarding a robbery in which his attackers used an ethnic
slur insufficient evidence of persecution on account of petitioner’s political views
or nationality).
Asllani’s testimony demonstrates that the voting incident was likely a result
of Asllani’s failure to register in his particular district, and the fact that he was
attempting to use an expired voter ID card. In addition, with regards to the
assault, Asllani testified that the attackers made no mention of why they attacked
him, nor did he have any way of knowing whether the assault was motivated by
the attackers’ disagreement with his political beliefs. Finally, there was no
testimony regarding any alleged persecution of any of Asllani’s family members,
or other campaign workers, who were also members of the Democratic Party.
Based on these facts, there is substantial evidence to support the BIA’s and the IJ’s
decisions. Accordingly, we reject this argument because Asllani has failed to
demonstrate that the evidence he presented was strong enough to compel a
11
contrary conclusion. See Elias-Zacarias, 502 U.S. at 483-84 (explaining that in
order to obtain reversal of the BIA’s determination, an asylum-seeker must show
that the evidence he presented was so compelling that no reasonable fact-finder
could fail to find the requisite fear of persecution); Wang, 405 F.3d at 138(“Congress has directed us to treat the BIA’s findings of fact as conclusive ‘unless
any reasonable adjudicator would be compelled to conclude to the contrary.’”
(citations omitted)).
Asllani also argues that he has suffered persecution on account of his
membership in a particular social group – his family. This argument, however,
also finds little support in the record. Although Asllani alleges that he has been
the target of a “blood feud” as a result of his sister’s fraudulent activity, Asllani’s
testimony does not establish any evidence of persecution. At best, Asllani’s
testimony indicates that the October 21, 2001 attack may have been motivated by
the alleged “blood feud.” However, Asllani has testified that he did not know his
attackers, and that he did not know why they attacked him. The only other
evidence Asllani offered regarding alleged persecution on account of his
membership in his family was that he and his family had received threats and
demand for payment from the families of his sisters’ victims. However, Asllani
did not provide any specifics regarding the nature of the threats, their severity,
12
their frequency, or when they had been made, and therefore failed to carry his
burden of demonstrating that he was persecuted. See Li v. Attorney Gen. of U.S.,
400 F.3d 157, 167 (3d Cir. 2005) (defining persecution as “‘threats to life,
confinement, torture, and economic restrictions so severe that they constitute a
threat to life or freedom’” (quoting Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.
1993))). Accordingly, because the IJ’s and BIA’s factual determinations were
supported by substantial evidence, and Asllani has failed to meet his burden of
establishing that the evidence compels a finding that he was persecuted, or has a
well-founded fear of future persecution, see Elias-Zacarias, 502 U.S. at 483-84, we
reject this argument.
C.
Because Asllani has failed to meet his burden to establish eligibility for
asylum, he also necessarily fails to satisfy the higher standard required for
withholding of removal. See He Chun Chen, 376 F.3d at 223. In addition, Asllani
has not established that “it is more likely than not that he . . . would be tortured if
removed to the proposed country of removal,” as required for relief under the
CAT. 8 C.F.R. § 1208.16(c)(2). While there is evidence that Asllani owes several
individuals money, there is no evidence in the record to indicate that it is more
likely than not that Asllani would be tortured if he returned to Albania.
13
IV.
For the foregoing reasons, Asslani’s petition for review is DENIED.
14