Pajollari v. Attorney General of the United States , 293 F. App'x 875 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
9-24-2008
Pajollari v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-1800
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 07-1800
VANGJUSH PAJOLLARI,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
(No. A79-452-965)
Before: McKEE and GARTH, Circuit Judges,
and Rodriguez,* District Judge
Submitted pursuant to Third Circuit LAR 34.1(a)
May 15, 2008
(Opinion filed: September 24, 2008)
OPINION
McKEE, Circuit Judge.
Vangjush Pajollari petitions for review of a final order of the Board of
Immigration Appeals affirming the decision of an Immigration Judge denying his
*
The Honorable Joseph H. Rodriguez, Senior District Judge, United States District
Court for the District of New Jersey, sitting by designation.
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applications for asylum, withholding of removal and relief under the Convention Against
Torture (“CAT”). For the reasons that follow, we will deny the petition for review.
I.
Inasmuch as we are writing primarily for the parties who are familiar with this
case, we need not reiterate the factual or procedural background except insofar as may be
helpful to our brief discussion. Pajollari is a native and citizen of Albania who attempted
to gain admission into the United States by using a false Belgian passport.
Prior to his merits hearing, Pajollari offered numerous supplements to his asylum
application. On July 25, 2005, Pajollari appeared for his asylum hearing with yet
another supplement. This time it was an undated eleven page, single-spaced document
purporting to supplement his existing asylum claim. Counsel for DHS argued that the
most recent “supplement” was more in the nature of a new asylum petition than a
supplement to the existing one. However, the IJ agreed to consider the supplement over
the objection.
Because of the differences between Pajollari’s original asylum application and the
new supplement, a short recess was called to allow the IJ and counsel for DHS to review
the supplement. However, when the hearing resumed, the tape was not running.
Therefore, when the IJ resumed recording, the IJ summarized her recollection of what
had transpired, including opening statements by Pajollari’s counsel and DHS counsel.
Neither party objected to the IJ’s summary of the opening statements, although
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Pajollari’s counsel stated that she did not recall any mention in Pajollari’s submissions of
a grenade being thrown. In response, the IJ noted that the grenade was mentioned
during the credible fear interview.
The IJ then summarized a short portion of Pajollari’s testimony, which was
consistent with Pajollari’s latest supplement. The IJ recounted that Pajollari’s
explanation of why his asylum statement was so different from his asylum application
was that Pajollari was “not used to being questioned.” AR 97-98. The IJ first noticed
the tape was not running when Pajollari was asked if the asylum statement and the
asylum application were prepared at the same time. At this point, the IJ, on the record,
asked Pajollari about the discrepancies between his asylum application, and his credible
fear interview and supporting materials:
Q: All right. Now, your attorney wants to know why [the
filings are] so different. The Court wants to know why
they’re so different.
A: I don’t even understand myself why they’re different.
AR 99. Pajollari said that the documents were not prepared the same day and that his
attorney asked him to “create” a history for himself. Id. He said that he did not recall
when he finished his statement. When questioned about his girlfriend, Pajollari said that
he had lost all contact with her.
In denying Pajollari’s claims for relief, the IJ found that Pajollari had not testified
credibly. The IJ explained that there were substantial discrepancies that were never
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adequately explained. The IJ found that Pajollari had not established a meritorious
asylum claim based on either his alleged attack on account of his membership in the
Democratic Party, or his relationship with Niko, the Socialist Party leader, because he
failed to demonstrate any government complicity or that any abuse was based on
something that was protected under the INA. She further found that Pajollari could not
establish any well-founded fear of future persecution if he were returned to Albania.
Accordingly, the IJ denied Pajollari all relief from removal.
On appeal to the BIA, Pajollari argued the merits of his asylum claim and
advanced an argument that his due process rights were violated because the transcript of
the hearing contained numerous indiscernible words. He also alleged that the IJ was
biased based on the IJ’s exchange with his counsel about the incident with the grenade.1
The BIA adopted and affirmed the IJ’s decision, and found that the IJ’s adverse
credibility finding was not “clearly erroneous.” See 8 C.F.R. § 1003.1(d)(3)(i). It also
found no evidence of a due process violation by the IJ. This petition for review
followed.
III.
Where the BIA both adopts the findings of the IJ and discusses some of the bases
for the IJ’s decision, we review the decisions of both the IJ and the BIA. Chen v.
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Pajollari claimed that a grenade had been thrown through his window, but could
not identify the individual who threw it.
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Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). Judicial review of immigration matters is
limited. INS v. Ventura, 537 U.S. 12, 16-18 (2002). The BIA’s “findings of fact are
conclusive unless any reasonable adjudicator would be compelled to conclude to the
contrary.” INA § 242(b)(4)(B), 8 U.S.C. § 1252(b)(4)(B); INS v. Elias-Zacarias, 502
U.S. 478, 483-84 (1992). Under this deferential standard, we will not reverse the
agency’s findings “simply because an alternative finding could be supported by
substantial evidence.” Yan Lan Wu v. Ashcroft, 393 F.3d 418, 424-25 (3d Cir. 2005).
Instead, the petitioner must establish that the evidence not only supports a contrary
conclusion, but compels it. Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002) (citation
omitted).
IV.
The Attorney General may not remove an alien to a country if the alien’s life or
freedom would be threatened in that country on account of the alien’s race, religion,
nationality, membership in a particular social group, or political opinion. INA §
241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A); see also INS v. Stevic, 467 U.S. 407, 413
(1984). To be eligible for this relief, the alien must establish a “clear probability of
persecution” on account of one of the foregoing grounds. Stevic, 467 U.S. at 413. The
burden of proof for establishing eligibility for withholding of removal is more stringent
than the burden required for asylum. Lukwago v. Ashcroft, 329 F.3d 157, 183 (3d Cir.
2002). The clear probability standard has no subjective component. It requires objective
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evidence that it is more likely than not that the alien will be subject to persecution upon
removal. See Chen v. Gonzales, 434 F.3d 212, 216 (3d Cir. 2005).
To qualify for CAT relief, an alien must show that it is more likely than not that
he/she would be tortured by the government of the proposed country of removal, or that
the government would acquiesce in torture at the hands of others. Amanfi v. Ashcroft,
328 F.3d 719, 726 (3d Cir. 2003); 8 C.F.R. § 1208.16(c)(2). Torture is “an extreme form
of cruel and inhuman treatment and does not include lesser forms of cruel, inhuman or
degrading treatment or punishment that do not amount to torture.” 8 C.F.R. §
1208.18(a)(2).
V.
Pajollari makes two arguments in support of his petition for review. His first
argument is that his due process rights were violated because the IJ “based her credibility
determination in large part upon sworn testimony that was off-the-record because she
failed to restart the tape machine after a recess.” Pajollari’s Br. 21. (We review due
process claims de novo. Abdulrahaman v. Ashcroft, 330 F.3d 587, 595-96 (3d Cir. 2003))
The argument is meritless. It is clear that the adverse credibility determination was based
on the discrepancies between his testimony, asylum application, and the eleven page
supplement that he produced the day of the hearing and the fact that he was not able to
explain the discrepancies. The IJ restated what little of Pajollari’s testimony had not been
recorded and summarized it on the record. Significantly, Pajollari’s counsel did not
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object to the IJ’s summary or otherwise attempt to clarify the record. To prevail on a due
process challenge to Immigration hearing procedures, an alien must show ‘substantial
prejudice.” Singh v. Gonzales, 432 F.3d 533, 541 (3d Cir. 2006). Pajollari suffered no
substantial prejudice.
Pajollari’s second argument is that the IJ failed to consider potentially
corroborative evidence. He contends that the IJ placed particular reliance on the State
Department Profile of Asylum Claims for Albania, produced in May 2001, rather than
the State Department’s 2000 and 2001 Country Reports for Albania. According to
Pajollari, the 2001 Asylum Profile concludes that “[t]here is virtually no evidence that
individuals are targeted for mistreatment on political grounds,” “[t]here is no post-
Communist tradition of retribution against political leaders and few instances thereof,”
and “[t]he Government has neither the means nor the will to carry out systematic
persecution.” Pajollari’s Br. 25. However, Pajollari contends that these conclusions are
at odds with the 2000 and 2001 Country Reports, which he claims “cite numerous
allegations of violence and intimidation at [Democratic Party] members that often went
uninvestigated and unpunished.” Id. at 26. In Pajollari’s view, the Asylum Profile is
not proof that his claims lack merit and, therefore, the IJ erred in relying on it in making
her credibility findings.
However, as noted above, the IJ’s credibility determination rested on Pajollari’s
inability to satisfactorily explain serious inconsistencies in his testimony, asylum
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application, and supplement. Moreover, the IJ’s citation to the 2001 Asylum Profile was
conducted along with the IJ’s citation to the Country Reports and concluded that “there
[are] is no serious political conflicts between groups in a systematic organized manner
and [the] even show there to be a coalition government, although the Socialist Party
remains in power.” The miminal reference to the Asylum Profile could have no effect on
the IJ’s adverse credibility determination.
VI.
For all of the above reasons, we will deny the petition for review.
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