Elezi v. Atty Gen USA , 282 F. App'x 113 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
6-16-2008
Elezi v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2786
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-2786
___________
INDRIT ELEZI,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondents
____________________________________
On a Petition For Review of an Order
of the Board of Immigration Appeals
Agency No. A97-396-841
Immigration Judge: Henry S. Dogin
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 12, 2008
Before: FUENTES, ALDISERT and GARTH, Circuit Judges
(filed: June 16, 2008 )
___________
OPINION
___________
PER CURIAM
Petitioner Indrit Elezi, a native and citizen of Albania, entered the United States
without inspection on June 25, 2003 at Laredo, Texas. He was 17 years old at the time.
On June 28, 2003, he was served with a Notice To Appear for removal proceedings,
alleging that he was removable under Immigration & Nationality Act (“INA”) §
212(a)(6)(A)(i), 8 U.S.C. § 212(a)(6)(A)(i), as an alien who was present in the United
States without being admitted or paroled. These allegations were admitted through
counsel at a preliminary hearing. Removal proceedings were transferred from San
Antonio, Texas to Newark, New Jersey. On January 20, 2004, Elezi filed his application
for asylum under INA § 208(a), 8 U.S.C. § 1158(a), and withholding of removal under
INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and the Convention Against Torture (“CAT”), 8
C.F.R. §§ 1208.16(c), 1208.18, claiming a fear of persecution on account of political
opinion due to his support of the Democratic Party of Albania. Elezi’s I-589 Form was
forwarded to the United States Department of State for review and comment, and the
State Department responded by referring the Immigration Judge to the Country Report on
Human Rights Practices for Albania for 2004.
In support of Elezi’s asylum application, Elezi’s father, Nazif, submitted a
statement, dated November 30, 2003, in which he detailed the suffering of his family
under the old Communist Party. His own father (Elezi’s grandfather) was arrested and
imprisoned in 1947. After his release, his property was confiscated, he was labeled an
“enemy of the state,” he could only get menial jobs and his children were denied an
education. Nazif started his own family in 1973. He was active in the Democratic Party
and “security people” followed him everywhere. On August 20, 1985, while trying to
escape from them, he crashed into a train and lost his leg.
2
In March 1992, the Democratic Party finally came to power. Unfortunately, in
1997, the new Socialist Party toppled the Democratic Party regime. Nazif’s business was
taxed heavily, and eventually destroyed by the Socialists. He was out of work, and under
surveillance by the security police once again. On February 20, 2000, he was placed
under house arrest for 11 months because of his membership in the Democratic Party and
The Association of Formerly Politically Persecuted of Tirana.
Nazif’s statement (as translated) ends this way:
The last seven years have been a real nightmare for my family
and me. I can say the same thing for my son Indrit, who was
threatened that he was going to be kidnapped many times in
exchange of money or in a deal for the politicians in power. His
life was always in danger. He was never free to do what he
needed to do, to play, or even to study normally like other
children. Finding myself in such situation, facing real threats
for my son, my only heir, I was forced to allow my son to leave
his house and his homeland in order to save his life and also to
give him a chance in life so he could benefit from the American
freedom and democracy.
A.R. 366-67.
Elezi testified at his removal hearing that he was a member of the Democratic
Party Youth Forum. He participated in demonstrations, and distributed literature and
hung posters for his father during the local elections of October 2000. In January 2003,
he was stopped by two police officers who asked him if he was Nazif’s son, and, when he
replied that he was, they told him to tell his father to keep his mouth shut and be very
careful. In February 2003, two Socialist Party members accosted Elezi on the street, beat
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him and kicked him, and said they wanted the Democrats dead. Although he was
bleeding and suffered injuries to his legs, kidneys, and face, he did not seek medical
treatment. Within days of this event, his father decided that his life was in danger and
that he should leave Albania. The IJ asked Elezi why his father did not mention the
February 2003 assault in his statement, and Elezi replied that, as far as he knew, his father
had mentioned it, and stated: “Maybe you don’t have his letter over there. What can I
say?” A.R. 119.
The IJ denied relief. He found that the January 2003 threat did not rise to the level
of persecution, because it was directed at Elezi’s father and not at him personally. The IJ
also found that Elezi did not testify credibly about the February 2003 beating. He did not
have scars or marks on his face, and his father failed to mention any specific beating in
his statement. His father talked only of kidnapping threats, and Elezi failed to mention
any kidnapping threats. These inconsistencies went to the heart of Elezi’s claim of
persecution. The IJ further concluded that, because his father had been safe for the past
two years, and is still politically active, Elezi had little to fear on account of this
relationship should he be returned to Albania. Thus, he could not show a well-founded
fear of future persecution. Elezi’s application for withholding of removal was denied, as
was his application under the CAT.
On August 2, 2005, the Board of Immigration Appeals affirmed without opinion
pursuant to 8 C.F.R. § 1003.1(e)(4). On May 17, 2007, the Board reissued its decision
4
sua sponte, because of a problem with respect to the mailing of the original decision.
Elezi filed a timely petition for review on June 15, 2007.
We will deny the petition. We have jurisdiction to review final orders of removal
pursuant to 8 U.S.C. § 1252(a)(1). When the Board summarily affirms, the decision we
review is that issued by the IJ. Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003) (en
banc). Factual determinations are upheld if they are supported by reasonable, substantial,
and probative evidence on the record considered as a whole. Immigration &
Naturalization Serv. v. Elias-Zacarias, 502 U.S. 478, 481 (1992). We may not disturb the
agency’s decision merely because we would have decided the case differently. See
Gabuniya v. U.S. Attorney General, 463 F.3d 316, 321 (3d Cir. 2006).
Whether an applicant for asylum has demonstrated past persecution or a well-
founded fear of persecution is a factual question which is reviewed under the substantial
evidence standard. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). We also
review an adverse credibility determination under the substantial evidence standard. See
Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004). Under this deferential standard of
review, we must uphold the credibility determination unless “any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We uphold
adverse credibility determinations based on omissions and discrepancies that go to the
heart of a petitioner’s claim. Chen v. Ashcroft, 376 F.3d 215, 224 (3d Cir. 2004).1
1
1 Under the REAL ID Act of 2005, credibility determinations may be made “without
2 regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the
5
An applicant for asylum has the burden of establishing that he is unable or
unwilling to return to his home country “because of [past] persecution or a well-founded
fear of future persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion[.]” 8 U.S.C. § 1101(a)(42)(A); see 8 C.F.R. §
1208.13(a); Abdille v. Ashcroft, 242 F.3d 477, 482 (3d Cir. 2001). The alien bears the
burden of proof. Id. To establish eligibility on the basis of past persecution, an alien
must show that he suffered some harm rising to the level of persecution on account of a
statutorily protected ground, and that it was committed by the government or forces the
government is unable or unwilling to control. Gao, 299 F.3d at 272. An alien who
establishes past persecution enjoys a presumption of a well-founded fear of future
persecution, Lukwago v. Ashcroft, 329 F.3d 157, 174 (3d Cir. 2003), but, if the alien
cannot show past persecution, he may still establish a well-founded fear of future
persecution by demonstrating a subjective fear of persecution, and that a reasonable
person in the alien’s circumstances would fear persecution if returned to the country in
question, Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003).
We conclude that substantial evidence supports the IJ’s determination that the
January 2003 incident does not rise to the level of persecution. See Chavarria v.
Gonzales, 446 F.3d 508, 518 (3d Cir. 2006) (“[W]e have refused to extend asylum
3 applicant's claim.” Pub. L. No. 109-13, § 101(a)(3)(B)(iii), 119 Stat. 231, 303 (2005).
4 However, this provision of the REAL ID Act applies only to cases where the applicant
5 applied for asylum or other relief after May 11, 2005. See id. § 101(h)(2), 119 Stat. at
6 305. Because Elezi applied for asylum in 2004, our pre-REAL ID Act standard applies.
6
protection for threats that, while sinister and credible in nature, were not highly imminent
or concrete or failed to result in any physical violence or harm to the alien.”). Substantial
evidence also supports the IJ’s adverse credibility determination with respect to the
February 2003 assault. Contrary to Elezi’s contention on appeal, it is indeed significant
that his father, who went to the trouble of giving a detailed statement in support of his
son’s claim, omitted any reference to this incident. He gave nonspecific details of
kidnapping threats and nothing more. The assault would have been a dramatic event for
the family, and it was alleged to have been the pivotal event that precipitated Elezi’s
departure from Albania. When the IJ asked Elezi why his father did not mention the
February 2003 assault in his statement, Elezi’s explanation was insufficient.
There is, as Elezi contends, ample credible evidence of a family history of
persecution on account of activity on behalf of the Democratic Party, but that evidence
does not erase the troublesome inconsistency between Elezi’s removal hearing testimony
and his documentary evidence concerning the February 2003 assault, the pivotal event in
Elezi’s individual history of persecution. Elezi contends in his brief that his case is
similar to that of the alien in Matter of O-Z- & I-Z-, 22 I. & N. Dec. 23 (BIA 1998),
involving the physical abuse of a father and son, but that case does not involve an adverse
credibility finding, and thus does not support his claim for relief. Elezi’s strongest
argument is that his father’s narrative statement was autobiographical in nature, and an
overview of the family’s history, and was not intended to be a comprehensive listing of
7
everything that happened to Elezi himself. But this contention, while it would explain
why Elezi’s father omitted any reference to the February 2003 assault, does not explain
why Elezi omitted any reference to threats of kidnapping in his removal hearing
testimony. Elezi gave no indication whatever in his testimony that he had ever been
threatened with kidnapping. Therefore, the record does not compel reversal of the IJ’s
adverse credibility determination.2
Because Elezi cannot show past persecution, he is not entitled to the presumption
of a well-founded fear of future persecution, and he did not make the required showing
that he would be persecuted by the Socialist Party if he is returned to Albania. The 2004
Country Report describes the rise of the Democratic Party within Albania, and with that,
the willingness and ability of the Albanian government to protect Elezi from the
lawlessness of certain members of the Socialist Party. The Country Report states that
municipal elections took place in 2003, and the Democratic and Socialist parties held the
majority of seats in the Parliament. Furthermore, we are not compelled to disagree with
the IJ that Elezi’s father has not encountered any problems in the two years preceding the
removal hearing. See Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005) (“[W]hen family
members remain in petitioner's native country without meeting harm, and there is no
2
1 Even assuming arguendo that the inconsistencies noted by the IJ between Elezi’s
2 testimony and his father’s statement are minor and not material, see Gabuniya, 463 F.3d
3 at 322, we doubt in any event that these two incidents, a single beating resulting in
4 injuries that were treated at home by the family and a nonimminent threat that did not
5 result in any physical injury, would compel reversal of the agency decision that Elezi did
6 not suffer persecution. See Voci v. Gonzales, 409 F.3d 607, 615 (3d Cir. 2005).
8
individualized showing that petitioner would be singled out for persecution, the
reasonableness of a petitioner's well-founded fear of future persecution is diminished”).
Because Elezi failed to show past persecution or a reasonable fear of future
persecution under the lower burden of proof required for asylum, he is necessarily
ineligible for withholding of removal. See Immigration & Naturalization Serv. v.
Cardoza-Fonseca, 480 U.S. 421, 430-32 (1987). In addition, the IJ concluded that Elezi
did not meet his burden of establishing that it is more likely than not that he will be
tortured upon his return to Albania, 8 C.F.R. §§ 208.16, 208.18, and we conclude that the
record does not compel a different conclusion.
Finally, Elezi’s contention that his right to due process was violated by the Board’s
affirmance without opinion, and affirmance by a single Board member rather than a three-
member panel, is contrary to established precedent in this circuit. Dia, 353 F.3d at 245.
His case satisfies the criteria for streamlining given that his arguments were covered by
settled asylum law, 8 C.F.R. § 1003.1(e)(4); cf. Smriko v. Ashcroft, 387 F.3d 279, 281
(3d Cir. 2004) (single Board member acted arbitrarily and capriciously by issuing an
affirmance without opinion in case presenting novel and substantial legal issues without
precedent), and his due process right to an individualized determination was accorded to
him by the IJ, who issued a reasoned decision. See Dia, 353 F.3d at 240.
For the foregoing reasons, we will deny the petition for review.
9