Besnik v. Atty Gen USA

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
10-15-2004
Besnik v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-3428
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEAL
FOR THE THIRD CIRCUIT
No. 03-3428
KORBECI BESNIK,
Petitioner
v.
JOHN ASHCROFT, ATTORNEY GENERAL
OF THE UNITED STATES,
Respondent
On Petition for Review from an Order of the
Board of Immigration Appeals
(Agency No.: A78-511-545)
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 8, 2004
BEFORE: SLOVITER, VAN ANTWERPEN and COW EN, Circuit Judges
(Filed: October 15, 2004)
OPINION
COWEN, Circuit Judge.
Korbeci Besnik seeks review of the December 19, 2001 order of the Board of
Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) denial of asylum,
withholding of removal, and protection under the Convention Against Torture (“CAT”).
We will deny his petition for review.
I.
Besnik is a native and citizen of Albania. He entered the United States on
December 9, 2000. That same day, the Immigration and Naturalization Service (“INS”)
issued a Notice to Appear (“NTA”), charging that Besnik is removable from the United
States under Section 212(a)(6)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. §
1152(a)(6)(A)(i), as an alien present in the United States without having been admitted or
paroled. Besnik conceded removability but applied for asylum, withholding of removal,
and protection under the CAT. On December 19, 2001, after a hearing at which Besnik
testified, the IJ issued a decision denying Besnik’s applications. The IJ found that Besnik
had submitted a false document in support of his application, that his testimony was not
credible, and that his testimony was not consistent with current conditions in Albania, as
reflected in State Department reports. On July 18, 2003, the BIA affirmed the IJ’s
decision without opinion. This appeal followed.
Besnik testified that he feared persecution in Albania because of his affiliation
with the Democratic Party (“DP”). The DP came to power immediately after the fall of
communism in Albania in the 1990s. In the 1997 elections, the Socialist Party gained
majority control of the government. The DP is currently an opposition party, which
participates in elections and holds seats in the national parliament. Besnik became a
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member of the DP on July 20, 1998. His father had been a financier of the party and his
family knew many of the leaders of the DP in his hometown, Juracoster. Besnik testified
that his trouble with the police began shortly after he became a DP member.
On July 28, 1998, Besnik attended a DP protest rally. During that rally, the police
arrested many protesters. Besnik was not arrested, but testified that he was beaten about
the head and body with a rubber baton. Besnik did not seek medical care from a doctor or
hospital, but was treated at home. According to Besnik, many protestors throughout
Albania were attacked by the police, and the DP filed a complaint in Parliament.
On August 4, 1998, Besnik testified that he was stopped by two members of the
Albanian secret service or SHIK.1 The SHIK agents put him in a car, drove him outside
the city, and told him to stop his association with the DP. When Besnik refused, the
agents punched, kicked, and threatened him. After beating him up, the SHIK agents left
him outside the city. Besnik testified that he was in pain from the beating, but did not
seek medical attention. He testified that he was afraid to seek medical treatment, because
he feared reprisals by the SHIK agents if he did. He did report the incident to the DP.
The DP, in turn, filed a complaint with the police.
On September 12, 1998, one of the DP members was killed by an unidentified
gunman. The DP was dissatisfied with the government’s efforts in finding the killer, and
staged massive protests. Besnik took part in one such protest. The police and SHIK
1
The briefs and record refer to the Albanian national intelligence service as either
SHIK or phonetically as “sheik.” For consistency, we will refer to the service as SHIK.
3
forces broke up the protest and arrested several protesters, including Besnik. He was
detained for three days and beaten several times. During his detention, Besnik was
questioned about the DP’s plans and meetings, and told to stop his membership in the
party. He was released after three days. He testified that he had fainted twice during his
detention, that he was not fed, and could not breathe well. He did not seek medical
attention upon his release. Besnik testified that the police told him they would beat him
again if he went to the hospital.
On May 3, 1999, the DP hosted a ceremony at which new members were awarded
their membership booklets. Besnik received his booklet at this ceremony, and was also
elected to be Secretary of the Youth Forum of the DP of his city. The Secretary’s
responsibilities including going into schools and workplaces and recruiting new members.
After the ceremony, Besnik was again detained by the police. The police questioned him
about the intentions and workings of the DP. Besnik did not answer their questions,
saying only that the DP was a legal party, it held one-third of the seats in Parliament, and
the workings of the DP were none of the police’s business. The police then yelled at
Besnik and beat him. Besnik was detained for about four hours. He was released when
members of his family, including his father, came looking for him. When Besnik’s father
came to the police station, the police spit in his face and threatened him. They told his
father that if Besnik did not stop his involvement with the DP, they would eliminate him.
Besnik testified that another incident took place on October 1, 2000. Besnik
4
testified that he was working as an election monitor on behalf of the DP candidate, and
began to suspect voter fraud. He was upset by this, and began talking to “newspaper
individuals or editors.” (AR at 138.) The police and agents of the SHIK grabbed him and
put him in a car, where they told him to keep quiet or “we will eliminate you without a
wink of an eye.” (Id. at 139.) He was released after an hour and a half. A member of the
Socialist Party won the election.
On October 3, 2000, Besnik participated in a protest outside the DP party
headquarters in Juracoster. The DP was protesting what it saw as a stolen election. The
police and SHIK agents broke up the protest. Besnik was arrested and detained for two
days. During that time, he was beaten and threatened. His family was also threatened.
He suffered cuts on his lip, the back of his head, and his legs as a result of the beatings.
After he was released, he sought medical attention for his injuries at the city hospital.
When he left the hospital, he went to a friend’s house, because the police had already
been at his parents’ house looking for him.
Besnik’s parents advised him to leave the country, because the police had visited
them several times after his last release. On October 7, Besnik left Albania for Greece.
From there he traveled to Mexico and finally, to the United States.
Besnik testified that the police continued to harass his parents after he had left the
country. His family has since left Albania for Greece. He submitted an article from a
“free newspaper,” which described the Socialist Party’s “hunt” for members of the DP.
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(Id. at 216.) The article mentions two DP members in passing, both election
commissioners, then describes in detail the government’s treatment of Besnik. He did not
submit medical records from the city hospital, but explained that his cousin tried to obtain
them and was told that the hospital would not release them. Besnik also submitted a letter
confirming his employment at a state run fuel storage facility, and a letter from his father,
who had moved to Greece, telling him that the police in Albania were still looking for
him.
II.
We have jurisdiction under 8 U.S.C. § 1252(a)(1). To be eligible for asylum, an
alien must show that he qualifies 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.
§ 208.13(b). The persecution must be on account of race, religion, nationality,
membership in a particular social group, or political opinion, and the fear of persecution
must be subjectively genuine and objectively reasonable. Id.; Chen Yun Gao v. Ashcroft,
299 F.3d 266, 272 (3d Cir. 2002). The alien bears the burden of supporting his asylum
claim, and credible testimony may be sufficient to support a claim. See 8 C.F.R. §
208.13(b). In order to be eligible for withholding of removal, an alien must show that
there is a clear probability that he will be persecuted on account of a protected ground. 8
U.S.C. § 1231(b)(3)(A); Tarrawally v. Ashcroft, 338 F.3d 180, 186 (3d Cir. 2003); Dia v.
Ashcroft, 353 F.3d 228, at 233 n.1 (3d Cir. 2003) (en banc). To be eligible for protection
6
under the CAT, an alien must show that he is more likely than not to be tortured in the
country of removal. 8 C.F.R. § 208.16(c); Dia, 353 F.3d at 233 n.1.
Besnik first challenges the constitutionality of the BIA’s order affirming the IJ’s
decision without opinion, arguing that the regulations impermissibly provide that the BIA
need not explain its decision. We have already rejected a similar challenge, finding that
these regulations are constitutional. Dia, 353 F.3d at 240-41. We must therefore reject
Besnik’s challenge in this case.
Besnik also argues that his case must be remanded to the IJ, because the possibility
of voluntary departure was never explained to him before the IJ issued her decision. It
does not appear that this issue was ever raised before the IJ or the BIA. “A court may
review a final order of removal only if . . . the alien has exhausted all administrative
remedies available to the alien as of right.” 8 U.S.C. § 1252 (d)(1). Because Besnik has
failed to exhaust his administrative remedies with respect to his voluntary departure
argument, we will not entertain it here.
Besnik’s remaining challenges hinge on the IJ’s determination that his testimony
was not credible. When the BIA affirms an IJ’s decision without opinion under 8 C.F.R.
§ 1003.1(a)(7), we review the IJ’s decision directly. Tarrawally, 338 F.3d at 184; Abdulai
v. Ashcroft, 239 F.3d 542, 549 n.2 (3d Cir. 2001). We review the IJ’s factual findings,
including credibility determinations, under the substantial evidence standard, and such
findings “are conclusive unless any reasonable adjudicator would be compelled to
7
conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Tarrawally, 338 F.3d at
184.
The IJ based the credibility determination on several factors, but focused on her
determination that the newspaper article Besnik submitted in support of his story was a
fraud. The article goes into great detail about Besnik’s persecution, including details such
as the date he joined the DP and the date he was given his membership book. The article
does mention the persecution of two election commissioners as well, but only in passing
and not in any great detail. The IJ found the details included about Besnik’s story made
the validity of the article suspect, noting:
Who cares about [these details] except for an Immigration Judge in
America? Why would anybody in Albania care even for one second about
when Mr. Besnik joined the Democratic Party or when he got his party
document? That sentence, standing alone, convinces the Court that this is a
concoction, completely calculated to try to mislead the undersigned.
(AR at 57.) The IJ then noted that the article states that Besnik’s medical treatment was
corroborated by the records in the city hospital. She found it unbelievable that a
journalist, whom Besnik said he did not know, was able to look at the records in the
hospital, after Besnik testified that the hospital would not allow his cousin to view or
obtain copies of the same records. Finally, she found that the article was not objective,
and the newspaper appeared to be a mouthpiece for the DP or some other opposition
group. Although the IJ cited other reasons in support of her adverse credibility
determination, she stressed that her finding that the article was fraudulent was the main
8
reason for that determination.
Besnik challenges the IJ’s credibility determination, arguing that the IJ did not find
any inconsistency in his testimony. The 2001 United States Department of State Profile
of Asylum Claims and Country Conditions for Albania states: “it is possible to purchase a
newspaper article to disseminate whatever information the purchaser desires.” The
newspaper article does appear to be a piece of propaganda, rather than an objective
newspaper article. The article tracks Besnik’s testimony exactly, down to the date of his
admittance to the DP and date he received his party documents. As the IJ noted, this level
of detail is surprising, especially because Besnik was a local leader in the Youth Forum of
the DP, not a national figure. In addition, the State Department report directly contradicts
the article, stating “[d]espite opposition claims of massive party disenfranchisement and
other manipulations nation-wide local elections held in October 2000 made clear and
unmistakable progress toward meeting democratic standards. . . The elections were
carried out in a calm and orderly manner with very few incidents of violence.” (AR at
197.) The report further states “[a]ll political parties have been active in most of the
country without a pattern of mistreatment, even during the dark days of 1997.” (Id.)
Because Besnik never challenges the IJ’s finding that the article was fraudulent or
explains why that finding was incorrect, we cannot conclude that a reasonable fact-finder
would be compelled to conclude that the article was genuine. Thus, we will not disturb
the IJ’s finding. A finding that Besnik submitted false evidence to bolster his asylum
9
claim would logically cast doubt on his credibility as a whole, and we find that substantial
evidence supported the IJ’s credibility determination.
Besnik also argues that the IJ impermissibly required corroborating evidence
regarding his asylum claim. Under the regulations, an alien’s credible testimony may be
enough to establish his eligibility for asylum. 8 C.F.R. § 208.13. In this case, however,
the IJ found Besnik’s testimony not to be credible, and that determination was supported
by substantial evidence. It was not an error, therefore, to look for corroboration to offset
that determination. The type of corroboration noted by the IJ was also proper. When
corroboration is required, [t]he BIA’s rule contemplates a three-part inquiry: (1) an
identification of the facts for which it is reasonable to expect corroboration; (2) an inquiry
as to whether the applicant has provided information corroborating the relevant facts; and,
if he or she has not, (3) an analysis of whether the applicant has adequately explained his
or her failure to do so.” Abdulai, 239 F.3d at 554 (internal quotation marks and citation
omitted). It is reasonable for an IJ to expect a petitioner to submit medical records. In re
S-M-J, 21 I&N Dec. 722, 725 (BIA 1997). The IJ found Besnik’s explanation that he
attempted to get his medical records through his cousin, but that the cousin was not given
access to the records suspicious, because an unrelated party was given access to those
same records. In addition, it was not unreasonable for the IJ to expect some confirmation
of Besnik’s active involvement in the DP and his troubles with the police, in the form of
an affidavit from one of the higher-level member of the DP in his city. This is especially
10
so because Besnik had no trouble obtaining information from Albania, as evidenced by
his ability to obtain a passport and a letter confirming his employment in a state-owned
facility.
Because the IJ found that Besnik’s testimony was not credible, she found that he
had not sustained his burden of proof for his asylum, withholding of removal, and CAT
claims. We find no error in these decisions. Finally, Besnik presented no evidence that
established that the Albanian government had a pattern or practice of persecuting
members of the DP. Accordingly, we will deny Besnik’s petition.
III.
For the foregoing reasons, the petition for review will be denied.
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