Alfred Fasho v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 26, 2006
No. 05-13913 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A78-960-080
ALFRED FASHO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(May 26, 2006)
Before ANDERSON, BIRCH and HULL, Circuit Judges.
PER CURIAM:
Alfred Fasho petitions for review of the Board of Immigration Appeals’
(“BIA”) order affirming the Immigration Judge’s (“IJ’s”) determination denying
him asylum and withholding of removal under the Immigration and Nationality
Act (“INA”) and protection under the United Nations Convention Against Torture
(“CAT”). After review, we deny the petition.
I. BACKGROUND
Fasho, a native and citizen of Albania, entered the United States on June 12,
2002 at the Texas border without being properly admitted or paroled. On June 19,
2002, the government issued a Notice to Appear charging Fasho with
inadmissibility. See INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i). Fasho
applied for asylum, withholding of removal and CAT relief, claiming that he was
mistreated by the Albanian government due to his and his father’s involvement
with the Democratic Party of Albania (“DPA”).
A. Asylum Application
According to Fasho’s application affidavit, his family had long been
recognized in his region of Albania as a leading anti-communist family. Fasho’s
grandfather was executed by the communist regime. His family was sent to labor
camps after their property was confiscated and was under constant surveillance
after their release. Fasho’s parents were members of the DPA beginning in the
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early 1990s, participated in peaceful demonstrations and campaigned for a DPA
candidate in the 1992 elections, which resulted in their being beaten and arrested.
The DPA won the 1992 elections by a landslide, and the Socialist Party
resigned. In 1997, the Socialist Party returned to power by means of violence and
voting manipulation. In 1997, Fasho’s father was beaten unconscious by two
masked men in retaliation for his DPA support. These men threatened to kidnap
and kill Fasho and rape his mother. Two days later, Fasho, who was 14 years old,
was abducted and beaten. The men placed a knife to Fasho’s throat and told him to
tell his father that the group known as “The Revenge” had almost killed him.
In December 1998, Fasho became a youth member of the DPA and a regular
member in December 2001. In December 1998, Fasho led demonstrators from his
village in support of hunger-striking political prisoners and to denounce the
Socialist Party government. As a result, Fasho was detained for two days and
beaten by the secret police, called the SHIK. Fasho was elected the vice-chairman
of the Youth Forum of the Democratic Party in his village, making him responsible
for recruiting new members, scheduling meetings and coordinating activities with
the regional branch. Fasho participated in anti-communist rallies and peaceful
demonstrations in opposition to the Socialist Party’s manipulation of the October
2000 elections. Fasho was detained, interrogated and beaten by the SHIK in June
1999, and September and November 2000. On March 22, 2001, Fasho was
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attacked after participating in a peaceful DPA gathering and hospitalized for two
days. The masked attackers did not identify themselves, but threatened to kill
Fasho if he continued to participate in DPA activities.
On June 24, 2001, during the general elections, Fasho was assigned by the
DPA to the electoral commission in his village. Fasho observed voting
irregularities and vowed to report them. That night, shots were fired at Fasho’s
house, and an explosion caused his roof to collapse partially, injuring him. Fasho
did not report the incident because be believed the government was involved. The
next day, the DPA agreed to help Fasho leave Albania. Fasho hid for several
months in an Albanian border town. Fasho left Albania on April 3, 2002, entering
the United States illegally on June 12, 2002 (almost one year after the shooting at
his house).
Fasho attached this documentation: (1) a copy of his DPA membership card;
(2) the DPA chairperson’s statement attesting to Fasho’s DPA membership and
involvement; (3) a copy of Fasho’s Association of Formerly Politically Persecuted
(“AFPP”) membership card; (4) the AFPP chairperson’s statement attesting to
Fasho’s membership; (5) a neighbor’s statement attesting to the bombing of
Fasho’s house.
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B. Country Conditions
The government submitted the State Department 2002 Country Report for
Albania (“Country Report”), which stated that Albania is a republic with a multi-
party parliament, a prime minister and a president. The Socialist Party won the
majority of the parliamentary seats in the 2001 general elections, which were
“conducted in a peaceful atmosphere.” The Organization for Security and
Cooperation in Europe (“OSCE”) judged the elections to have improved over past
elections, but noted serious voting irregularities. The Albanian government has a
poor human rights record, including local police beating suspects, detainees and
prisoners and making arbitrary arrests and detentions. However, there were no
confirmed cases of detainees being held strictly for political reasons or political
killings by the government or its agents and no reports of politically motivated
disappearances or political prisoners. Human rights groups were generally able to
operate in Albania and the most commonly reported violations were “citizen
complaints of police and military abuse of power, lack of enforcement of court
judgments in civil cases, wrongful dismissal, and land disputes . . . .” Albania
continued to experience high levels of violent crime, due in large part to “blood
feuds” between vigilante clans or criminal gang conflicts.
The government also submitted the 2001 Profile of Asylum Claims and
Country Conditions for Albania from the United States Department of State
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Bureau of Democracy, Human Rights and Labor (“Asylum Profile”), which stated
that Albania is the poorest and least developed country in southeastern Europe.
After the communist regime began to disintegrate in 1990, there was a mass
exodus of Albanians seeking a better life abroad. After the 1997 collapse of
various “pyramid” schemes that cost Albanians their life savings and led to
potential anarchy, the major political parties agreed to form a government of
national reconciliation and slowly brought about sufficient public order for early
national elections. The 1997 elections repudiated the previous, increasingly
autocratic rule of the former president and his DPA in favor of the Socialist Party,
which remained in power as of 2001.
Most applicants claiming asylum based on political opinion alleged
mistreatment of themselves and/or their families during the communist reign of
1945 to 1990. The Asylum Profile rejected claims that the current government is
led by a reconstituted Communist Party engaging in political persecution, as
follows:
With the Socialist Party currently leading a coalition government, it is
highly unlikely in today’s circumstances that many applicants will
have credible claims to political persecution. Such claims are
generally amplified by the assertion that a reconstituted communist
regime has come to power. Claims relying on this premise are
contradicted by virtually all state actions, and those who truly were
persecuted by the communists often resent the comparison. Both
major parties trace their roots to the communist regime and both
repudiate it thoroughly. . . . There is virtually no evidence that
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individuals are targeted for mistreatment on political grounds. Far
more prevalent is organized and amateur crime, exacerbated by the
widespread availability of firearms, high unemployment and poverty,
continued corruption among the police and a culture of blood feud
that is wholly independent of political activity.
The DPA participated in most parliamentary activity and the 2001 elections made
clear the progress toward meeting democratic standards. There was no post-
communist tradition of retribution against political leaders. Albania’s National
Intelligence Service, SHIK or the secret police, have internal and external
functions, and a public perception existed following the 1996 parliamentary
elections that SHIK was firmly under the DPA’s control and that the DPA was
using it for their own ends. Many Albanian applicants enter the United States
without inspection and present spurious, fraudulent or no documents. Applicants
often cited current membership in the non-profit Association of Former Politically
Persecuted Persons formed after the 1992 elections, although documents
apparently provided by it could not be authenticated.
Fasho submitted the United Kingdom’s Home Office April 2003 Albania
Assessment, which stated that the 2001 parliamentary elections occurred in four
rounds due to accusations of electoral fraud. The elections were peaceful, and,
unlike previous elections, political parties sought legal redress for their grievances.
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C. Asylum Hearing Testimony
At his hearing, Fasho conceded removability and testified about his
treatment in Albania. Among other things, Fasho testified that he was 14 years old
in 1997 when he and his father were beaten by the secret police. However, Fasho
later testified that, in 1998, when he was 17 years old, he was again abducted and
beaten by the secret police while attending a strike demonstration. On cross-
examination, Fasho confirmed that he was 14 years old in 1997 and that in 1998
during the strike demonstration he was 17 years old. When asked, “How is it you
went from 14 to 17 in one year?,” he responded, “I’m sorry; I just, I just
misinterpreted. I don’t even know how I said that but –.” Fasho also stated that,
although he had been hospitalized after some of the beatings he received, he had
yet to obtain any hospital records. When questioned by the IJ, Fasho was unable to
remember the year he left Albania. Fasho further testified that he did not have a
specific occupation in Albania, but that he worked in “my agricultural estate
around my house” and for the DPA.
Fasho also testified that the Communist Party won the 1997 elections. Upon
cross-examination, Fasho stated that the two main political parties currently in
Albania were the Communist and Democratic parties and that the Communist
Party was in control. He also stated that the Communist Party and the Socialist
Party were the same party. Moreover, when asked to explain the system of
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governance in Albania, Fasho responded that the current ruling party was the same
as the communist government rule and then stated that he did not know. Although
Fasho continued to insist that he was a political activist and election observer,
Fasho was unable to explain how members of the Albanian parliament were
elected and stated that his “problems were due to [his] father’s participation and
[he] did as much as [he] could, but [was] not able to explain all this today.” Fasho
was unfamiliar with the OSCE, the primary European body for election
governance. Fasho stated that just one election was held on June 24, 2001 and was
unaware of the four other rounds of voting in the summer of 2001 required to
complete the election. Fasho acknowledged that he had previously testified that
the secret police attacked his father on June 29, 1997, but now was testifying that
members of the Socialist Party attacked his father.
In authenticating his membership documents, Fasho explained that he had
sent pictures to his brother in Albania, who put them on documents issued under
Fasho’s name and returned them to Fasho. Fasho also explained that one of the
documents was a testimonial by his cousins, who witnessed Fasho’s mistreatment.
When asked if his cousin was the author, Fasho responded, “No, that’s not my
cousin, my neighbor.” When questioned further if the testimony was by relatives
given the surname Fasho on the declaration, Fasho responded, “They are not
relatives because in the village where I reside, three quarters of the population has
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the last name Fasho.” Fasho’s testimony then vacillated between identifying the
witnesses as “far away cousins,” and neighbors who were not cousins.
D. Decisions of the IJ and BIA
In his oral decision, the IJ found that Fasho’s testimony was not credible and
“obviously fabricated,” and that Fasho’s asylum claim was frivolous.
The IJ supported his adverse credibility assessment by finding that Fasho:
(1) was unable to determine the date he purportedly entered the United States; (2)
had no employment in Albania, other than his work with the DPA; (3) was unable
to recall when elections occurred or what happened during the elections, including
being unaware of numerous rounds of voting, even though he claimed to be an
activist; and (4) was unable to give specifics regarding the time he was beaten as a
as a 14-year-old child. The IJ found that Fasho’s exhibits were fabricated because
Fasho admitted to making the exhibits after he left Albania using pictures sent back
to Albania with a family friend. The IJ did not believe that Fasho was a member of
any organization. The IJ also noted that Fasho failed to produce any evidence of
medical treatment or harm. The IJ did not dispute that Fasho’s father may have
been held by communists in labor camps and that, after the economic turmoil in
1997, Albanian citizens were subject to general conditions of violence and human
rights violations. The IJ also noted, however, that Fasho’s testimony varied so
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much from the Asylum Profile that he could not be deemed credible. The IJ
concluded that Fasho had not satisfied even the lower burden of proof for asylum.
Fasho appealed to the BIA, which affirmed the IJ’s credibility determination
and conclusion that Fasho was ineligibility for asylum, withholding of removal, or
CAT relief. However, the BIA disagreed with the IJ’s conclusion that the asylum
application was frivolous, noting that Fasho’s documents had not been subjected to
forensic analysis. Fasho petitioned for review in this Court.
II. DISCUSSION
A. Due Process Claim
On appeal, Fasho argues that his due process rights were violated by the
BIA’s issuance of a short opinion adopting the reasoning of the IJ. Fasho contends
that the BIA did not undertake a meaningful review and did not set forth its reasons
for denying his claims for asylum and withholding of removal. We disagree.1
“To establish due process violations in removal proceedings, aliens must
show that they were deprived of liberty without due process of law, and that the
asserted errors caused them substantial prejudice.” Lonyem v. U.S. Atty. Gen., 352
F.3d 1338, 1341-42 (11 th Cir. 2003). A short BIA order affirming an IJ’s
determination does not preclude meaningful review such that due process rights are
1
We review constitutional challenges de novo. Lonyem v. U.S. Att’y Gen., 352 F.3d 1338,
1341 (11th Cir. 2003).
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violated “because an appellate court ‘will continue to have the IJ’s decision and the
record upon which it is based available for review.’” Mendoza v. U.S. Att’y Gen.,
327 F.3d 1283, 1288-89 (11 th Cir. 2003) (addressing summary affirmance under 8
C.F.R. § 3.1(a)(7)(iii) now codified at 8 C.F.R. § 1003.1(e)(4)) (quoting in part
Albathani v. INS, 318 F.3d 365, 377 (1 st Cir. 2003));2 see also Prado-Gonzalez v.
INS, 75 F.3d 631, 632 (11 th Cir. 1996) (addressing BIA’s decision adopting IJ’s
reasoning for denying of suspension of deportation).
Here, the BIA did not violate Fasho’s due process rights when it affirmed
the IJ’s order in a short opinion. The BIA’s one-paragraph order adopted the IJ’s
credibility determination and his reasoning regarding Fasho’s eligibility for asylum
and withholding of removal, but sustained Fasho’s petition for review as to
whether his asylum claim was frivolous. Fasho is not entitled to a full opinion by
the BIA because we have the IJ’s decision and the complete administrative record
to review. Furthermore, Fasho has presented no evidence that the BIA Board
member failed to conduct a sufficient review of Fasho’s case before affirming. In
fact, Fasho prevailed on one of the issues in his petition for review.
2
We point out that BIA’s order in Fasho’s case was not a summary affirmance pursuant to
8 C.F.R. § 1003.1(e)(4), which approves the result reached by the IJ, but does not necessarily
approve the IJ’s reasoning. Instead, the BIA’s order was a short decision on the merits of Fasho’s
claims pursuant to 8 C.F.R. § 1003.1(e)(5). The BIA affirmed the IJ’s decision with respect to the
credibility determination and eligibility for asylum and withholding of removal, but modified the
decision with respect to the IJ’s frivolity determination.
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B. Adverse Credibility Determination
Fasho also argues that substantial evidence does not support the IJ’s adverse
credibility finding.3 We review credibility findings under the substantial evidence
test, and “like any fact finding, [they] may not be overturned unless the record
compels it.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286-87 (11 th Cir. 2005).
An alien applying for asylum has the burden to show, with specific and
credible evidence, either: (1) past persecution on account of a statutorily listed
factor, such as political opinion, or (2) a “well-founded fear” that the statutorily
listed factor will cause future persecution. 8 C.F.R. § 208.13(a), (b); Al Najjar v.
Ashcroft, 257 F.3d 1262, 1287 (11 th Cir. 2001). “The trier of fact must determine
credibility, and [we] may not substitute [our] judgment for that of the [IJ] with
respect to credibility findings.” D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814,
818 (11th Cir. 2004). “[A]n adverse credibility determination alone may be
sufficient to support the denial of an asylum application” when there is no other
evidence of persecution. Forgue, 401 F.3d at 1287. “Once an adverse credibility
finding is made, the burden is on the applicant alien to show that the IJ’s credibility
decision was not supported by ‘specific, cogent reasons’ or was not based on
3
Because the BIA’s decision adopted the IJ’s findings as to credibility and eligibility for
asylum, we review the orders of both the BIA and the IJ. Al Najjar v. Ashcroft, 257 F.3d 1262,
1284 (11th Cir. 2001). Additionally, on appeal Fasho argues only that he is eligible for asylum and
does not challenge the IJ’s determination with regard to withholding of removal or CAT relief.
Therefore, we do not address these claims further. See Mendoza, 327 F.3d at 1286 n.3.
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substantial evidence.” Id. Although “[u]ncorroborated but credible testimony may
be sufficient to sustain the burden of proof for demonstrating eligibility for asylum
. . . [t]he weaker an applicant’s testimony . . . the greater the need for corroborative
evidence.” Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir. 2005)
(citation omitted).
The IJ detailed specific inconsistencies and deficiencies in Fasho’s
testimony and documentary evidence, which related directly to Fasho’s claim that
he was persecuted based on his political opinion. Furthermore, these
inconsistencies and deficiencies are supported by substantial evidence. Fasho’s
description of political persecution by a reconstituted Communist Party disguised
as the Socialist Party is inconsistent with the Asylum Profile and the 2001 Country
Report. Fasho’s claim that he was a political activist and observer of the 2001
parliamentary elections was undermined by the fact that he did not know how
members of the Albanian parliament were elected and was unfamiliar with the way
the 2001 elections proceeded or the name of the primary European election
governance body sent to observe those elections. Furthermore, Fasho at times
could not recall details, became confused or contradicted himself. For example,
Fasho was also unable to recall the year he left Albania and appeared confused
about whether his supporting declarations were given by neighbors or cousins.
Fasho first testified that he was 14 years old in 1997 and then testified that he was
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17 years old in 1998. Likewise, Fasho testified initially that his father was attacked
by the secret police in 1997, but later testified that he was attached by Socialist
Party members after being told that the DPA was in power in 1997. In addition,
Fasho’s party membership documents are questionable given that Fasho obtained
them only after he arrived in the United States and sent his picture to his brother,
who affixed them to the documents. Fasho also failed to provide any hospital
records, although he claimed to have been twice hospitalized for at least two days.
The record as a whole does not compel a contrary conclusion to that reached
by the IJ. Accordingly, we are bound to affirm the IJ’s denial of asylum.
PETITION DENIED.
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