Myslymi, Tomor v. Gonzales, Alberto

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 3, 2006
Decided February 9, 2007
Before
Hon. DANIEL A. MANION, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-4255
TOMORR MYSLYMI, et al., Petitions for Review of an Order of
Petitioners, the Board of Immigration Appeals.
v. Nos. A79-416-962, A79-416-963,
A79-416-964, A79-416-965,
ALBERTO R. GONZALES, A79-416-966
Attorney General of the United States,
Respondent.
ORDER
Tomorr Myslymi and his family left Albania in August 2001. When they
tried to enter the United States using false German passports, they were detained
and placed in removal proceedings. The Myslymis requested asylum, withholding
of removal, and relief under the Convention Against Torture, claiming they would
be persecuted if returned to their native Albania because Tomorr Myslymi had
worked for the Democratic Party there. The Immigration Judge (“IJ”) found Tomorr
not credible and denied the requested relief. The Myslymis appealed, and the
Board of Immigration Appeals (“BIA”) remanded to allow their expert witness to
testify telephonically. After hearing the expert’s testimony, the IJ reinstated his
prior decision. Again the Myslymis appealed to the BIA, this time without success.
The Myslymis now petition for review, contesting the IJ’s credibility finding, his
No. 05-4255 Page 2
treatment of their expert witness’s testimony, and his failure to inform them of
their right to withdraw their applications for admission. We deny the petition.
I.
At the petitioners’ first hearing, Tomorr Myslymi testified that he was a
member and employee of the Democratic Party of Albania (“DP”). From 1994 to
2001, his job was to drive DP leaders, perform administrative duties, and coordinate
campaign activities in the city of Tirana, Albania. Tomorr testified that he left his
job—and Albania—after receiving two written threats in the summer of 2001 while
preparing for the parliamentary elections held in June and July of that year. The
first threat came in June: Someone had broken into his car in the DP headquarters
lot and left an unsigned note warning that his and his family’s lives would be in
danger if he did not cease working for the DP. Then in July he found under the
front gate of his home a second unsigned note repeating the same threat. Tomorr
explained that he believed the Socialist Party was responsible since he was not
having trouble with anyone else and had heard that the Socialist-controlled police
force was mistreating other DP drivers. To corroborate Tomorr’s testimony, the
petitioners submitted Tomorr’s DP membership card; a short unsigned article
published in a DP newspaper describing how he and his family faced poverty and
police brutality under the rule of the Socialist Party; an affidavit from the chairman
of the DP branch in Tirana confirming Tomorr’s employment with the DP and
representing that “elements of the Socialist Party” had threatened his life and were
“looking to abuse him”; and an Amnesty International article from 2000 about
human rights abuses in Albania. The IJ refused to hear telephonic testimony from
Dr. Bernd Fischer, a university professor with expertise in Albanian politics.
In finding Tomorr not credible, the IJ reasoned that his testimony conflicted
with the documentary evidence. The IJ also concluded that even if Tomorr’s
testimony was credited, the unfulfilled threats the petitioners received were not so
immediate or menacing as to rise above the level of harassment and were not
adequately tied to the Albanian government or a group that it was unable or
unwilling to control. And, finally, the IJ reasoned that the petitioners lacked a well-
founded fear of future persecution because in its 2001 country report for Albania the
State Department had not documented any politically motivated killings or
disappearances.
On remand from the BIA, Dr. Fischer testified that although he did not know
Tomorr personally and could not confirm his story, he found it believable. Fischer
opined that DP drivers in Albania could face harassment, discrimination, and
possibly violence, particularly because low-level DP employees do not have
bodyguards and the police—which he characterized as controlled by the rival
Socialist Party—do not protect members of opposition political parties. Fischer also
No. 05-4255 Page 3
opined that threats in Albania should be taken seriously because they are rarely
made unless they are meant to be carried out. He noted when he testified in
February 2005 that the political climate in Albania had recently deteriorated and
that there had been an increase in violence due to the upcoming parliamentary
elections then scheduled for July 2005. Dr. Fischer’s testimony, however, did not
persuade the IJ to alter his assessment of Tomorr’s credibility or his and his
family’s request for relief.
II.
The petitioners first argue that the IJ’s adverse credibility finding is not
supported by substantial evidence. The IJ reasoned that Tomorr’s testimony about
receiving threatening notes was inconsistent with the DP chairman’s affidavits,
which said nothing about written threats. The IJ also perceived multiple
inconsistencies between Tomorr’s testimony and the DP newspaper article. The
article is silent about death threats, and while it recounts that family members
were “bruised” by the police, Tomorr himself characterized the article as inaccurate
on that point. Tomorr also denied that his family had been struggling with growing
debt, as is reported in the article.
An IJ’s opinion, as supplemented by the BIA, must be supported by
“‘reasonable, substantial, and probative evidence on the record considered as a
whole.’” Toptchev v. INS, 295 F.3d 714, 720 (7th Cir. 2002) (quoting INS v. Elias-
Zacarias, 502 U.S. 478, 481 (1992)). We accord an IJ’s credibility determination
substantial deference, Korniejew v. Ashcroft, 371 F.3d 377, 382 (7th Cir. 2004), and
will overturn it only under “extraordinary circumstances.” Feto v. Gonzales,
433 F.3d 907, 911 (7th Cir. 2006). As long as the IJ provides “specific, cogent
reasons that bear a legitimate nexus to the finding,” we will not disturb it. Id.(quotation marks and citation omitted). Material discrepancies in an asylum
applicant’s testimony (those that go to the “heart” of the applicant’s claim) will
support an adverse credibility finding, but minor inconsistencies will not. Giday v.
Gonzales, 434 F.3d 543, 550 (7th Cir. 2006).1
We agree with the petitioners that Tomorr Myslymi’s testimony was not
materially inconsistent with the DP official’s affidavit. True, the official failed to
specify that the threats received by the petitioners were conveyed in writing. But
this difference between the two accounts cannot fairly be described as an
inconsistency, let alone a material one. “There is a difference between something
1
Our credibility analysis is unaffected by the passage of the REAL ID Act of 2005, see
Pub. L. No. 109-13, 119 Stat. 231, which governs only cases in which the petition for asylum
was filed on or after May 11, 2005. Ayi v. Gonzales, 460 F.3d 876, 880 (7th Cir. 2006).
No. 05-4255 Page 4
that merely fails to support a claim and something that affirmatively undercuts the
claim.” Tabaku v. Gonzales, 425 F.3d 417, 422 (7th Cir. 2005). The official’s
affidavit recounts that elements of the Socialist Party had threatened Tomorr’s life
and were “looking to abuse him.” This is consistent with Tomorr’s testimony that
he and his family had received death threats that they attributed to the Socialist
Party. There may well be other problems with the official’s affidavit; for one, there
is no way to tell whether the official had personal knowledge of the threats to
Tomorr or whether he was just repeating what Tomorr told him. But whatever
shortcomings the affidavit might have, its omission of a description of the form in
which the threats were received does nothing to undermine Tomorr’s credibility.
Nonetheless, we uphold the IJ’s credibility assessment based on the
inconsistencies between Tomorr Myslymi’s testimony and the newspaper article he
submitted. The brief unsigned article is entitled “Who’s Making Our Friends Leave
Albania?” and purports to explain why the petitioners left the country. But rather
than citing death threats, the article attributes their departure to deteriorating
living conditions, growing debt, and violence at a political rally. When pressed,
Tomorr could not explain why the article identifies his growing debt and reliance on
food assistance, rather than death threats, as the motives for his family’s departure
from Albania. And when asked about the author’s claim that Tomorr and his wife
had been beaten at a political rally, Tomorr denied that the beating had occurred
and speculated that the author had confused him with another person.
It was reasonable for the IJ to discredit Tomorr’s testimony based upon the
article. See Huang v. Gonzales, 453 F.3d 942, 945-47 (7th Cir. 2006) (affirming
credibility determination based on a single significant inconsistency); Selami v.
Gonzalez, 423 F.3d 621, 625-26 (6th Cir. 2005) (applicant’s submission of fraudulent
article sufficed to support adverse credibility determination); Qin v. Ashcroft,
360 F.3d 302, 308 (1st Cir. 2004) (“It is simply common sense that the presence of
false testimony and documents submitted to prove a central element of the claim in
an asylum adjudication indicates the applicant’s lack of credibility.” (quotation
marks and citation omitted)). When asked whether he vouched for the truth of the
article’s content, Tomorr stated that he did. But when pressed about the article’s
inconsistencies with his own testimony, Tomorr proceeded to disavow virtually all of
what it says. And the content is not immaterial; the petitioners’ motivation for
leaving Albania goes to the heart of their claim of persecution. Rather than
corroborating Tomorr’s claim that his family was threatened with death because of
his work for the DP, the article strongly suggests that the petitioners came to the
United States for economic reasons. It is no wonder then that the IJ would doubt
Tomorr’s credibility given that he submitted and vouched for the article but quickly
disclaimed its content when it proved unhelpful.
No. 05-4255 Page 5
The IJ’s alternative ground for decision was also sound. The IJ held that
even if Tomorr Myslymi is believed, the threats he recounted failed to establish past
persecution or a well-founded fear of future persecution. We have repeatedly held
that threats alone rarely will compel a finding of past persecution. See Bejko v.
Gonzales, 468 F.3d 482, 486 (7th Cir. 2006); Hernandez-Baena v. Gonzales, 417 F.3d
720, 723 (7th Cir. 2005); Boykov v. INS, 109 F.3d 413, 416 (7th Cir. 1997). The two
anonymously penned death threats Tomorr described were not of such an
immediate and menacing character that a finding of past persecution would have
been compelled. See Bejko, 468 F.3d at 486; Ahmed v. Ashcroft, 348 F.3d 611, 616
(7th Cir. 2003); Hernandez-Baena, 417 F.3d at 723; Boykov, 109 F.3d at 416.
Tomorr conceded that he was never physically harmed, nor did he ever see or speak
with the author of either note. And nothing in the record compels the conclusion
that the author actually intended to follow through on the threats. Accordingly, the
IJ’s finding that the petitioners did not suffer persecution is supported by
substantial evidence.
The IJ’s conclusion that the petitioners do not have a well-founded fear of
future persecution is also supported by substantial evidence. The petitioners argue
that the IJ unreasonably discounted Dr. Fischer’s testimony in favor of a State
Department report and that when Fischer’s testimony is properly credited, the
evidence compels the conclusion that they have a well-founded fear of future
persecution.
When an expert witness can provide specific, detailed testimony about the
type of risks a particular individual will face, it can be more valuable than the
broad assessments contained in a State Department report. See Gramatikov v.
INS, 128 F.3d 619, 620 (7th Cir. 1997) (recommending that asylum applicants
“point to a highly credible independent source of expert knowledge” to contradict
State Department reports); Galina v. INS, 213 F.3d 955, 959 (7th Cir. 2000) (noting
that the country reports are “brief and general, and may fail to identify specific,
perhaps local, dangers to particular, perhaps obscure, individuals”). But Fischer’s
testimony was generalized, and he admitted that he did not know the petitioners.
The only specific information he provided were two stories, one about a DP driver in
London who was asked to be a spy for the Socialist Party and another about a DP
driver for the Attorney General of Albania who was killed in an apparent
assassination attempt on his passenger. While Fischer also testified that low-level
DP employees may be at greater risk of harm because they lack the protection a
high-profile politico might receive, he could not identify any individual who had
been targeted or harmed as a result of holding a low-level position. In short,
Fischer’s testimony was speculative and provided no insight into any specific threat
that the petitioners might face upon return. The IJ chose to rely instead upon the
most recent State Department reports, which indicated that “there are no
indications of systemic political persecution,” nor any confirmed reports of
No. 05-4255 Page 6
politically motivated killings, disappearances, or detentions in Albania See BUREAU
OF DEMOCRACY, HUMAN RIGHTS & LABOR, U.S. DEP’T OF STATE, ALBANIA: PROFILE OF
ASYLUM CLAIMS AND COUNTRY CONDITIONS 3 (2004); BUREAU OF DEMOCRACY,
HUMAN RIGHTS & LABOR, U.S. DEP’T OF STATE, ALBANIA: COUNTRY REPORTS ON
HUMAN RIGHTS PRACTICES (2004), available at
http://www.state.gov/g/drl/rls/hrrpt/2003/27820.htm. The IJ was not obligated to
discuss Dr. Fischer's contrary opinion predicting the petitioners’ fate based largely
on Tomorr’s own story, which the IJ disbelieved.
Moreover, subsequent events further undercut Dr. Fischer’s views. When he
testified in February 2005, Fischer warned of increasing violence because of the
parliamentary elections scheduled for July 2005. But in fact the most recent
country report for Albania states that in 2005 there were no politically motivated
deaths, disappearances, or detentions. See BUREAU OF DEMOCRACY, HUMAN RIGHTS
& LABOR, U.S. DEP’T OF STATE, ALBANIA: COUNTRY REPORTS ON HUMAN RIGHTS
PRACTICES (2006), available at http://www.state.gov/g/drl/rls/hrrpt/2005/61633.htm.
And having gained control of parliament in the 2005 elections, the DP is now in
power, see BUREAU OF DEMOCRACY, HUMAN RIGHTS & LABOR, U.S. DEP’T OF STATE,
BACKGROUND NOTE: ALBANIA (2006), available at
http://www.state.gov/r/pa/ei/bgn/3235.htm; Cecaj v. Gonzales, 440 F.3d 897, 900 (7th
Cir. 2006), which strongly suggests that the petitioners are unlikely to be
mistreated upon return. Accordingly, the IJ’s conclusion that the petitioners do not
have a well-founded fear of persecution is supported by substantial evidence.
Finally, the petitioners argue that they were denied due process by the IJ’s
failure to inform them of their right to withdraw their applications for admission.
See 8 U.S.C. § 1225(a)(4); 8 C.F.R. § 1240.11(a)(2). But they did not raise this issue
with the BIA. If the BIA is capable of addressing a due process challenge, then an
alien must raise it with the BIA before we will consider it. Feto, 433 F.3d at 912.
Here the petitioners challenge the IJ’s failure to follow the Department of
Homeland Security’s rules; this is precisely the type of procedural failing that the
BIA is capable of assessing. See id. The petitioners failed to raise this issue to the
BIA, so we will not consider it.
For the foregoing reasons, we DENY the petition for review.