Isufaj v. Ashcroft

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-1632
MAKSIM ISUFAJ,
Petitioner,
v.
ALBERTO GONZÁLES, ATTORNEY GENERAL,*
Respondent.
ON PETITION FOR REVIEW OF A FINAL ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Selya, Lynch, and Lipez, Circuit Judges.
Jack Sachs on brief for petitioner.
Peter D. Keisler, Assistant Attorney General, Papu Sandhu,
Senior Litigation Counsel, and Isaac R. Campbell, Trial Attorney,
Office of Immigration Litigation, Civil Division, on brief for
respondent.
June 27, 2005
*
Alberto Gonzáles was sworn in as United States Attorney
General on February 3, 2005. We have therefore substituted
Attorney General Gonzáles for John Ashcroft as the respondent. See
Fed. R. Civ. P. 25(d)(1); Fed. R. App. P. 43(c)(2).
Per Curiam. Petitioner Maksim Isufaj, a native and
citizen of Albania, petitions for review of a decision of the Board
of Immigration Appeals (BIA) affirming the denial by an Immigration
Judge (IJ) of his application for political asylum.
On July 6, 2001, traveling under a counterfeit Greek
passport, Isufaj first set foot in the United States in the Miami
airport, ostensibly as a "transit without visa" en route from
Brazil to Canada, but with the real purpose of seeking political
asylum in the United States, where Isufaj has relatives. At the
airport, he presented himself to immigration officers and requested
asylum.
On July 11, 2001, Isufaj was given a "credible fear"
interview by an asylum officer. He stated that, after living and
intermittently working in Greece for four years, he had returned to
Albania for about a month to participate in the June 24, 2001
parliamentary election as a local election monitor for the
opposition Democratic Party. Shortly after the polls closed,
unknown civilians, presumably associated with the ruling Socialist
Party, had attempted to steal the ballot box and pointed a gun to
his head when he refused to let them take it. Later that day, his
cousin warned him that he should not return home, ever, because
people were looking for him and would kill him. Fearing for his
life, Isufaj explained, he fled the country.
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At the conclusion of the interview, Isufaj was given a
Notice to Appear for removal proceedings, and was released from
detention pending such proceedings. Those proceedings materialized
on April 23, 2002, at which time Isufaj admitted the immigration
charges and conceded removability. He applied for political
asylum, withholding of removal, and protection under the Convention
Against Torture.2
On December 31, 2002, the IJ held an evidentiary hearing.
Isufaj was the sole witness. The government's cross-examination
and the IJ's questions uncovered numerous inconsistencies in
Isufaj's story, relating to both broad themes (such as why he came
to the United States) and details (such as his United States
address, when he joined the Albanian Democratic Party, and whether
he had a valid Albanian passport in July 2001). Isufaj's
explanation for many of these inconsistencies was that he "must've
made many mistakes on [his] statement" and the like.
The IJ concluded -- based on her assessment of Isufaj's
testimony viewed against the background of documentary exhibits
regarding human rights and political conditions in Albania -- that
Isufaj was "not a credible witness," that he had "specifically lied
2
The Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85,
was implemented in the United States by the Foreign Affairs Reform
and Restructuring Act of 1998, Pub. L. No. 105-277, § 2242, 112
Stat. 2681-761 (codified at 8 U.S.C. § 1231), and 8 C.F.R. §
208.16(c).
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to the Immigration Officer," and that the basic premise of his
story -- that he had returned to Albania to be an election monitor
-- was "not credible." The IJ concluded that Isufaj was "so
[economically] desperate . . . that he has lied to me, [and] to the
officer when he first came to the United States. I find that the
story is just simply fabricated."
The IJ denied Isufaj's applications for asylum,
withholding of removal, and protection under the Convention Against
Torture. She further found that Isufaj had knowingly filed a
frivolous application for asylum after being warned of the
consequences for doing so, namely, permanent ineligibility to enter
the United States. See 8 U.S.C. § 1158(d)(6). In a brief per
curiam opinion, the BIA affirmed the denial of all three forms of
relief but vacated the finding that Isufaj had knowingly filed a
frivolous application. On appeal, Isufaj challenges only the
denial of asylum.
An asylum applicant "may qualify as a refugee either
because he or she has suffered past persecution or because he or
she has a well-founded fear of future persecution." 8 C.F.R.
§ 1208.13(b). In either case, the applicant has the burden of
proof. Id. § 1208.13(a); see also Khalil v. Ashcroft, 337 F.3d 50,
55 (1st Cir. 2003) (enumerating requirements for proving past
persecution or well-founded fear of persecution). "Determinations
of eligibility for asylum or withholding deportation are conclusive
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'if supported by reasonable, substantial, and probative evidence on
the record considered as a whole.'" Albathani v. INS, 318 F.3d
365, 372 (1st Cir. 2003) (quoting INS v. Elias-Zacarias, 502 U.S.
478, 481 (1992)). "[T]he administrative findings of fact are
conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B). This
deferential standard means that "[t]o reverse the BIA finding we
must find that the evidence not only supports that conclusion, but
compels it." Elias-Zacarias, 502 U.S. at 481 n.1.
While Isufaj's story could, in theory, be consistent with
the evidence, "[m]erely identifying alternative findings that could
be supported by substantial evidence is insufficient to supplant
the [IJ's] findings." Albathani, 318 F.3d at 372. The IJ
concluded that the entire story on which Isufaj based his claim was
"just simply fabricated." Nothing that we have found in the
hearing transcript, or the documentary evidence concerning crime,
politics, and human rights in Albania, undermines the IJ's adverse
credibility finding, and therefore we cannot say that the evidence
compels the conclusion that Isufaj demonstrated either past
persecution or a well-founded fear of future persecution.
The petition for review is denied.
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