Gjocaj v. Atty Gen USA , 165 F. App'x 967 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
2-8-2006
Gjocaj v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-4521
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-4521
BLERIM GJOCAJ,
Petitioner,
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
On Petition for Review of an Order
of the Board of Immigration Appeals
(BIA No. A96-249-412)
Argued January 17, 2006
Before: ROTH, FUENTES, and BECKER, Circuit Judges.
(Filed: February 8, 2006)
Meer M.M. Rahman,
Robert J. Pures, II (Argued)
Christophe & Associates, P.C.
2 Wall Street, Eighth Floor
New York, NY 10005
Attorneys for Petitioner
1
Patrick L. Meehan
United States Attorney
Laurie Magid
Deputy U.S. Attorney for Policy and Appeals
Virginia A. Gibson
Assistant U.S. Attorney, Chief, Civil Division
Mary Catherine Frye (Argued)
Assistant U.S. Attorney
Eastern District of Pennsylvania
615 Chestnut Street
Philadelphia, PA 19106
Attorneys for Respondent
OPINION OF THE COURT
FUENTES, Circuit Judge.
Blerim Gjocaj petitions for review of a decision by the Board of Immigration
Appeals (“BIA”) affirming an Immigration Judge’s (“IJ”) denial of his application for
asylum, withholding of removal, and protection under the Convention Against Torture
(“CAT”). Because we find that there is substantial evidence to support the denial of his
application, we deny the petition.
I. Facts and Procedural History
Gjocaj, who was born on May 18, 1982, is a native and citizen of Albania. Gjocaj
arrived in the United States on October 10, 2002, by crossing the border from Mexico
into Texas. Shortly thereafter, he was issued a Notice to Appear, which charged him with
being subject to removal as an alien present in the United States without being admitted
2
or paroled. On January 14, 2003, with the assistance of a non-attorney, Gjocaj filed an
application for asylum, withholding of removal, and relief under the CAT. He
subsequently filed a supplementary application with the assistance of counsel.
At his merits hearing before the IJ, Gjocaj testified that he left Albania because he
was subjected to persecution on account of his activities in support of the Democratic
Party (“DP”). According to Gjocaj, the persecution began when he became an active
member of the DP in 2000. The following summary of the events leading up to Gjocaj’s
arrival in the United States is based on Gjocaj’s testimony before the IJ.
Gjocaj described numerous instances of mistreatment that he suffered on account
of his involvement with the DP. On September 22, 2000, he and his brother were
distributing pamphlets and posting leaflets prior to countrywide local elections scheduled
for October 1, 2000. Three uniformed policemen approached them, threatened to kill
them, and beat Gjocaj causing him to faint. His brother took him home, where he
remained for two days under the care of a doctor and his mother. Following this incident,
Gjocaj hid for about two weeks after learning that he was under police surveillance and
sought for arrest.
On November 28, 2000, Gjocaj and his father went to a demonstration protesting
the manipulation of the results of the October 1st local elections. The police suppressed
the demonstration using weapons and hand grenades, killing a number of protestors and
wounding Gjocaj. Gjocaj suffered an injury to one of his arms, for which he received
medical treatment. He testified that he was under the care of a doctor for seven
3
consecutive days; one day at a clinic and the rest at home. Approximately one month
later, the police came looking for Gjocaj at his home, but they left after his father told
them that Gjocaj was not there.
During the parliamentary elections of June 20, 2001, Gjocaj served as an election
observer for the Youth Forum of the Democratic Party. On election day, a representative
of the Socialist Party approached Gjocaj and warned Gjocaj that he had enough power to
squash him if he did not cease his political activities. About two weeks later, on July 7,
2001, Gjocaj’s house was shot at by individuals riding in a vehicle similar to those used
by the Albanian Secret Police.
Gjocaj further testified that over a year later, on September 15, 2002, three
uniformed policemen searched his home, arrested him at gunpoint, threatened him with
death, and detained him for 32 hours (and his brother Ferid for two days). At the police
station, Gjocaj was interrogated about his political activities in connection with the DP,
and he was beaten, kicked, and hung upside down with his feet tied to the ceiling. Gjocaj
was subsequently released without being charged with a crime. According to Gjocaj, he
believed he was arrested because he, his brother, and some friends organized a peaceful
demonstration three days earlier, on September 12, 2002, to commemorate the third
anniversary of the death of a DP leader.
After the September 15th incident, Gjocaj decided to leave Albania and come to
the United States. He ultimately left Albania for the United States on October 1, 2002,
and he arrived in Texas through Mexico on October 10, 2002.
4
At the conclusion of his merits hearing, the IJ issued a decision finding that Gjocaj
was removable as charged, and denying his application for asylum, withholding of
removal, and relief under the CAT. The IJ first reviewed, statement by statement, a
number of discrepancies between Gjocaj’s testimony at the merits hearing, his
supplemental asylum application (which was prepared by the attorney who represented
him at the hearing), and his initial asylum application (which was prepared by a non-
attorney). The IJ noted that when Gjocaj was questioned about the discrepancies, Gjocaj
claimed that they arose because his statements had been mistranslated by a secretary in
his attorney’s office and/or his attorney had failed to include his full story in the
supplemental asylum application. The IJ did not find Gjocaj’s explanations persuasive.
Instead, the IJ ruled
that the credibility issues [noted earlier in the IJ’s opinion], both in terms of
the internal inconsistencies as well as omissions, especially in the context of
an application prepared on a supplementary basis by his current counsel of
record, cannot be reconciled and cumulatively, in the Court’s view, support
an adverse credibility finding . . . . The Court cannot find the explanations
that [Gjocaj] gave plausible. The Court cannot assume that an officer of the
Court has been negligent to the extent [Gjocaj] has implicitly alleged, both
mistranslating [Gjocaj’s] alleged story as well as omitting key items that
motivated the targeting of [Gjocaj] and his consequential departure from
Albania.
(JA 64-65.) The IJ further found that, independent of the adverse credibility
determination, the record did not contain evidence sufficient to conclude that Gjocaj was
eligible for relief under the CAT. Gjocaj appealed the IJ’s decision, which the BIA
affirmed without opinion on November 10, 2004.
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II. Discussion
Gjocaj asserts two arguments in support of his petition for review. First, Gjocaj
argues that the IJ’s denial of his application for asylum is not supported by substantial
evidence because, contrary to the IJ’s conclusion, his claims were supported by credible
testimony. Second, Gjocaj argues that the IJ’s denial of his application for withholding of
removal and relief under the CAT is not supported by substantial evidence because it is
more likely than not that he will be persecuted if returned to Albania.
This Court reviews both the IJ’s adverse credibility determination and the denial of
asylum, withholding of removal, and CAT relief under the “substantial evidence”
standard.1 See Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004). Under this standard,
the IJ’s ruling must be upheld unless “any reasonable adjudicator would be compelled to
conclude to the contrary.” Id. at 243 (quoting Gao v. Ashcroft, 299 F.3d 266, 272 (3d
Cir. 2002)).
An IJ’s adverse credibility determination must be based on evidence in the record,
rather than on speculation. Gao, 299 F.3d at 272. Minor inconsistencies unrelated to an
asylum applicant’s fear for his or her safety are not a sufficient basis for an adverse
credibility finding. Id. Instead, “[t]he discrepancies must involve the ‘heart of the asylum
claim.’” Id. (quoting Ceballos-Castillo v. INS, 904 F.2d 519, 520 (9th Cir.1990)). On
review by this Court, the IJ’s credibility findings are subject to the substantial evidence
1
Because the BIA affirmed the IJ’s decision without opinion, this Court reviews
the IJ’s decision. See Partyka v. Attorney General, 417 F.3d 408, 411 (3d Cir. 2005).
6
standard. See Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003) (en banc).
Here, the IJ concluded that Gjocaj lacked credibility based on discrepancies
between Gjocaj’s testimony and statements in his supplemental asylum application.2 The
IJ placed particular emphasis on omissions related to the incident on September 15, 2002,
when, three days after Gjocaj and his brother helped to organize an event commemorating
the death of a DP leader, the police arrested them at home and took them into custody.
Specifically, the IJ pointed out that Gjocaj’s testimony about his treatment at the police
station was significantly more detailed than the description in the supplemental
application, and that the supplemental application failed to mention the commemorative
event even though Gjocaj testified that the event prompted the September 15th incident.
The IJ further noted that Gjocaj’s testimony included other information that was omitted
from3 or inconsistent with4 his supplemental application. Although the IJ conceded that
2
As noted above, Gjocaj filed two applications for asylum: the first application
was prepared by a non-attorney, while the second, or supplemental, application was
prepared by the attorney who represented him at his hearing. The IJ’s ruling focused on
discrepancies between Gjocaj’s testimony and the statements in his “supplemental
application.”
3
For example, Gjocaj’s supplemental application does not mention the incident
when individuals in an unmarked car shot at his house shortly after he was threatened
while serving as an election observer for the DP, or the fact that he learned from a family
friend that he was under video surveillance and on a police list.
4
For example, Gjocaj testified that he was beaten by police on September 22, 2000
between 2:00 and 3:00 p.m., whereas his supplemental application states that the beating
took place at night; Gjocaj testified that his home was searched only on September 15,
2002, whereas his supplemental application states that it was searched “several times”;
Gjocaj testified erroneously that the November 28, 2000 protests of the local elections
occurred on October 28th until his attorney pointed out the mistake; and Gjocaj testified
7
some of the omissions and inconsistencies were relatively minor, he concluded that, taken
together, they supported an adverse credibility determination.
Gjocaj acknowledges the numerous discrepancies on which the IJ based the
adverse credibility determination. However, he argues that the IJ’s adverse credibility
determination is not supported by substantial evidence because Gjocaj’s testimony
contains explanations for each discrepancy. For example, with respect to the omissions
identified by the IJ, Gjocaj testified that he believed that his supplemental application
included the omitted details because he had in fact explained them to his attorney prior to
submission of the supplemental application.
To be sure, the fact that an asylum application is less detailed than an applicant’s
testimony does not necessarily constitute “a meaningful omission which should lead the
court to make an adverse credibility finding.” Cao v. Attorney General, 407 F.3d 146,
160 (3d Cir. 2005) (citing Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir. 1996) (“An
applicant’s testimony is not per se lacking in credibility simply because it includes details
that are not set forth in the asylum application.”)). Nonetheless, this Court is bound to
uphold an adverse credibility determination if it is supported by substantial evidence, and
may do so even after rejecting some of its bases. See He Chun Chen v. Ashcroft, 376
F.3d 215, 224-25 (3d Cir. 2004) (finding substantial evidence for an adverse credibility
that he received medical treatment for two or three weeks following the November 28th
incident, whereas his supplemental application states that he received treatment for only
seven days.
8
determination despite “extreme discomfiture” with some of the IJ’s specific findings).
Here, the most important facts omitted from Gjocaj’s supplemental application are the
details of the September 15, 2002 detention and beating, and reference to the protest three
days earlier that apparently gave rise to the detention and beating. In particular, the
relevant portion of Gjocaj’s supplemental application states only that he was beaten and
threatened at the police station, whereas Gjocaj testified that the police hung him upside
down from the ceiling, poured water on him while he was on the ground, and beat him
with a rope. Gjocaj stated that the September 15th incident motivated him to leave
Albania, which makes these omitted facts integral to his claim of persecution and related
to the “heart of the asylum claim.” Furthermore, as the IJ noted, Gjocaj’s family remains
in Albania and there is no evidence in the record that his father or brother Ferid have been
targeted for their political activities since Gjocaj left the country.5 For these reasons, we
cannot conclude that “any reasonable adjudicator would be compelled to conclude that
the IJ’s adverse credibility determination was erroneous.”
Finally, Gjocaj argues that the IJ erred in rejecting his withholding of removal and
CAT claims, arguing that he will be tortured if he is returned to Albania. However, based
on the IJ’s adverse credibility determination and the documentary evidence in the
5
Although we do not take judicial notice of country conditions not reflected in the
administrative record, see Berishaj v. Ashcroft, 378 F.3d 314, 330 (3d Cir. 2004), we
nonetheless note that “[t]he Democratic Party and its allies returned to power with a
decisive victory” in the July 5, 2005 general elections. See U.S. Dep’t of State, Bureau of
European and Eurasian Affairs, Background Note: Albania (Sept. 2005),
http://www.state.gov/r/pa/ei/bgn/3235.htm.
9
administrative record, substantial evidence exists to support the denial of Gjocaj’s claims.
III. Conclusion
For the foregoing reasons, we will deny Gjocaj’s petition for review.
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