Prela v. Keisler

Not for Publication in West’s Federal Reporter
United States Court of Appeals
For the First Circuit
No. 06-2531
VALTER PRELA,
Petitioner,
v.
PETER D. KEISLER,*
ACTING ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Circuit Judge,
Selya, Senior Circuit Judge,
and Lipez, Circuit Judge.
Andrew P. Johnson and Law Offices of Andrew P. Johnson, on
brief for petitioner.
Andrew Oliveira, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, Peter D.
Keisler, Assistant Attorney General, Civil Division, and Richard M.
Evans, Assistant Director, on brief for respondent.
October 19, 2007
*
Pursuant to Fed. R. App. P. 43(c)(2), Acting Attorney General
Peter D. Keisler is substituted for former Attorney General
Alberto R. Gonzáles as respondent.
TORRUELLA, Circuit Judge. On October 4, 2006, the Board
of Immigration Appeals ("BIA") adopted and affirmed the decision of
an Immigration Judge ("IJ") rejecting Petitioner Valter Prela's
claims for asylum, withholding of removal, and relief under the
Convention Against Torture ("CAT"). The IJ found significant
inconsistencies in Prela's story, but Prela did not address those
inconsistencies before the BIA. Prela now appeals the BIA's
decision, arguing that the IJ's credibility finding is not
supported by the record, and that the IJ failed to consider whether
Prela is eligible for CAT relief. After careful consideration, we
deny the petition for review.
I. Background
Prela is a native and citizen of Albania. His claims for
asylum, withholding of removal, and CAT relief stem from his and
his family's support of the Democratic Party in Albania.
Particularly, Prela alleges that his family has suffered "severe
and longstanding persecution at the hands of the Albanian
authorities." His family was banished from their village after
Prela's father spoke out against the Communist Party then in power.
His father, a leader in the Democratic Party, was eventually killed
in 1993.
Prela also claims that his younger brother, Arjan, was
later murdered by Socialists after he attempted to make a report to
a Democratic Party newspaper denouncing the corruption of the
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Socialist government. Authorities, however, apparently ruled the
death an accident. Shortly after Arjan's death, the family changed
their "well-known, especially, among the Socialist Party, last
name"1 to "Prela."
The deaths of his father and brother only spurred Prela's
support of the Democratic Party, despite a forty-eight hour
detention in September 1998, and another "stop" by the Socialists
on the street. Prela then became a member of the election staff
for the June 24, 2001 election. His duties included organizing
meetings for the Democratic Party candidates and speaking about the
benefits of democratic government. During the election campaign,
Prela claims that he was threatened, stopped, and assessed fines.
The most serious incident Prela describes occurred on the
day of the election. Prela explains that he witnessed Socialists
"caus[ing] chaos" at his assigned polling station. When he reported
the improper activities to the station chairman, a Socialist, he
was asked to leave the station. He refused and was dragged away.
On his way home, he was severely beaten by "three masked men [who]
came from [a] police van." When he attempted to report the beating
to the police, he was threatened for filing a "false accusation."
On June 30, 2001, Prela participated in a demonstration
against the Socialist Party's corruption related to the election.
1
It is unclear from the record and the parties' briefs exactly
what Prela's original last name was.
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He was hit by police with a rubber stick, taking several days to
recover.
In July 2001, Prela was summoned to court regarding his
accusation against the police, but he decided not to appear. He
received another summons in September 2001. Shortly thereafter,
fearing for his safety, he decided to leave Albania.
Prela did not seek asylum upon his entry into the United
States. Rather, he waited until he was issued a Notice to Appear
on May 23, 2002, charging him with being removable.
The IJ found significant inconsistencies in the evidence
presented in support of Prela's story. For example, Prela
testified that his father was killed by a group of Socialists and
ex-communists while giving a speech in Likmetaj, and Prela's mother
stated in an affidavit that his father was killed during a meeting
of the Democratic Party. The Democratic Party, however, wrote a
letter stating that Prela's father was killed in the town of Ishem
by a group of criminals. In addition, Prela stated that he changed
his last name to "Prela" on October 12, 2000, but his Democratic
Party membership card, issued in March 1996, bears the name
"Prela." The IJ also noted that he was unclear as to how changing
his name would make Prela safer, given that he worked in a store
bearing the family's real last name. Similarly, Prela testified
that he went into hiding after the summonses were issued, though he
was "hiding" in his own home and still working at the store.
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The most notable inconsistency, according to the IJ, was
Prela's testimony regarding his June 24, 2001 arrest and beating.
Prela testified before the judge that he spent two days in the
hospital after his beating. In his affidavit, however, Prela had
stated that he was sent home after just a few hours. Moreover,
Prela had given three different times -- 4:30 p.m., 7:30 p.m., and
11:00 p.m. -- for when the incident with the police allegedly
occurred.
Based in part on these inconsistencies, the IJ found that
Prela had not borne the burden of proof that he was the victim of
past persecution, that he had a well-founded fear of future
persecution, or that it was more likely than not that he would be
persecuted or tortured if returned to Albania. As a result, the IJ
denied Prela's claims and ordered him removed.
The BIA upheld the IJ's denial of relief to the extent
that it was based upon an adverse credibility finding.2 The BIA
stated that it found no reason to disturb the IJ's adverse
credibility determination, noting that on appeal Prela had not
addressed the "significant inconsistencies between the asylum
application, testimony and documentary evidence on matters which go
to the heart of the claim."
2
The IJ had also found that "[e]ven viewing [Prela's] testimony
in the best possible light to him, . . . what he has actually shown
is that while participating in demonstrations which ended up
violently, that he was abused by police."
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II. Discussion
While we normally review the BIA's decision as the final
agency order, we look to the IJ's decision to the extent it was
adopted and affirmed by the BIA. Simo v. Gonzáles, 445 F.3d 7, 11
(1st Cir. 2006). We review the IJ's findings, including his
credibility determination, to determine whether they are "supported
by reasonable, substantial, and probative evidence on the record
considered as a whole." Bocova v. Gonzáles, 412 F.3d 257, 262 (1st
Cir. 2005) (quoting INS v. Elías-Zacarías, 502 U.S. 478, 481
(1992)). We will not reverse unless "any reasonable adjudicator
would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B).
First, Prela argues that the BIA erred in affirming the
IJ's adverse credibility finding because the IJ's finding is not
supported by substantial evidence in the record when viewed as a
whole. We disagree. The IJ specifically described the
inconsistencies upon which he relied, and those inconsistencies are
supported by the record. See Long v. Gonzáles, 422 F.3d 37, 40
(1st Cir. 2005) ("The IJ must provide specific reasons for its
determination that, in turn, are supported by the evidence.").
Moreover, those inconsistencies are substantial and go to the heart
of Prela's claims of persecution and torture. See Bojorques-
Villanueva v. INS, 194 F.3d 14, 16 (1st Cir. 1999) ("[A]n adverse
credibility determination cannot rest on trivia but must be based
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on discrepancies that involved the heart of the asylum claim."
(internal quotation marks omitted)). In particular, the strongest
evidence in support of Prela's claims concerns his June 24, 2001
arrest and beating, but his contradictory testimony casts into
substantial doubt not only the extent of the incident but also the
veracity of Prela's statements.
Prela argues in this court that the contradictory
statements noted by the IJ are in fact not inconsistent. With
respect to his father's death, he points out that the ex-communists
whom he testified assassinated his father are criminals, as
described by the Democratic Party's letter. He also explains that
he joined the Democratic Party in 1996, explaining the "issue date"
on his membership card, but that the particular card with his new
last name was issued much later, after he had changed his name to
Prela. We note first that Prela apparently did not make these
arguments before the BIA, and so they are waived. Molina de
Massenet v. Gonzáles, 485 F.3d 661, 664 (1st Cir. 2007)
("[A]rguments not raised before the BIA are waived due to a failure
to exhaust administrative remedies."). In any event, Prela still
has not explained the more significant inconsistencies regarding
the June 2001 incident.
Second, Prela argues that the IJ erred in denying him
relief under the CAT because he did not consider the CAT claim
separate from the asylum claim. Prela is incorrect, however. It
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is clear from the IJ's decision that he considered whether Prela
had satisfied the standard for CAT relief. He correctly identified
Prela's burden of proof, stating "that it is more likely than not
that he would be tortured if removed to the proposed country of
removal," and that "[t]he torture must be inflicted by or at the
instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity." See Ang
v. Gonzáles, 430 F.3d 50, 58 (1st Cir. 2005); 8 C.F.R. § 208.16(c)(2). He then based his denial of relief on the inconsistencies
in the record previously described, finding that Prela's testimony
did not establish that it was more likely than not that he would be
tortured if returned to Albania. The record does not compel us to
conclude otherwise. See Stroni v. Gonzáles, 454 F.3d 82, 90 (1st
Cir. 2006).
III. Conclusion
For the reasons enumerated above, we deny the petition
for review.
Denied.
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