Leskaj v. Atty Gen USA , 276 F. App'x 149 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
4-29-2008
Leskaj v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2684
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-2684
JULIAN LESKAJ,
Petitioner
v.
ATTORNEY GENERAL OF
THE UNITED STATES,
Respondent
On a Petition For Review of an Order
of the Board of Immigration Appeals
Agency No. A79-042-927
Immigration Judge: Mirlande Tadal
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 16, 2008
Before: AMBRO, FISHER, and JORDAN, Circuit Judges
(Opinion filed: April 29, 2008)
OPINION
PER CURIAM
Petitioner Julian Leskaj, a native and citizen of Albania, was served with a Notice
to Appear on August 28, 2001, alleging that he entered the United States two days before
near Eagle Pass, Texas without being admitted or paroled and was thus removable under
Immigration & Nationality Act (“INA”) § 212(a)(6)(A)(i). At a Master Calendar hearing
Leskaj admitted these facts. In May 2002, he submitted his original applications 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, 8 C.F.R. §§
1208.16(c), 1208.18, claiming a fear of persecution on account of political opinion. An
amended version of his asylum application was admitted during his 2005 removal
hearing. Leskaj claimed that, as a former member of the Democratic Party in Albania, he
fears being killed by the Albanian police, the ranks of which are dominated by extremist
Socialist sympathizers.
Leskaj testified that, in 1997, he and his parents were active members of the
Democratic Party, participating in various demonstrations, providing financial assistance,
and even assisting the Chairman of the party in Elbasan, where his family lives. His
father was an officer in the army until 1989, and his mother worked at the army base.
Thereafter, his parents owned a store. Albania was plagued by lawlessness. There was
no government and civilians were armed. The Socialist Party was the governing party in
Albania. On May 22, 1997, Leskaj was attacked by masked members of the Albanian
police. They jumped out of a van and accosted him as he walked home from the store,
and kicked and hit him. The attack lasted a minute. His attackers, who were carrying
automatic weapons, told him not to assist or support the Democratic Party or they would
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kill him. Leskaj suffered large and deep cuts to his chin and toes, which required stitches
and resulted in scarring. He went to a hospital the next day for treatment and was under a
physician’s care for a month. His father reported this incident to the chairman of the
Democratic Party in the Elbasan District, but he did not pursue a complaint with the
Albanian police for obvious reasons.
Leskaj went to Greece on a visa after this incident, but was deported by the Greek
government when the visa expired. Again he obtained a visa and again he returned to
Greece for a year and a half. When this visa expired, he again was returned to Albania.
He remained in Albania for one year before coming to the United States. Leskaj testified
that he left Albania for good when, after returning from Greece the second time, he was
followed by the police on two or three occasions. With respect to the issue of future
persecution, Leskaj testified that he is afraid to return to Elbasan because the Socialist
Party is in control there. He believes that the police who attacked him in 1997 will
recognize him and target him, and that extremist Socialists do this sort of thing with
impunity. He also fears that his return will endanger his parents, who otherwise have
been unharmed since he left.
Leskaj offered exhibits in support of his claim for asylum: two Certificates from
the Chairman of his party in the Elbasan District, stating that he had been menaced and
threatened with death by Communists on account of his active participation in the 1997
election campaign, and a physician’s note indicating that he had been treated for an injury
3
to his jaw and the toes of his right foot on May 23, 1997.
On cross-examination, the government established that Leskaj had omitted any
reference to the May 1997 beating in his original asylum application. Leskaj explained
that this was due to his belief that he ultimately would seek adjustment of status on the
basis of his marriage on August 14, 2002, rather than seek asylum. (He and his wife have
since separated). In addition, the Administrative Record contains the State Department’s
Country Report on Human Rights Practices for Albania for 2004. It states that municipal
elections took place in 2003, and they met basic democratic standards. The Democratic
and Socialist parties held the majority of seats in the Parliament.
The Immigration Judge found Leskaj removable as charged and denied relief. She
found that Leskaj was not credible on the basis of omissions and inconsistencies in his
case for relief. In his first application, he failed to make reference to the pivotal incident
in May 1997, and his explanation for the omission – that he was hoping to adjust his
status on the basis of his marriage – made little sense in that he was, at that time, still
single, and, in any event, he had managed to make reference to other events that caused
him to seek asylum.1 Furthermore, the letter he offered from the Chairman of the
Democratic Party made no reference to the May 1997 beating. Finally, the incidents of
1
The original application states that the family received anonymous death threats over
the telephone during the 2001 elections, and that the windows in the family store were
broken.
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menacing that caused him to leave Albania once and for all were omitted from the
amended application and statement.
However, even assuming that his testimony was credible, the IJ concluded that
Leskaj did not meet his burden of establishing either past persecution or a well-founded
fear of future persecution on the basis of his membership in the Democratic Party. The IJ
noted that, although Leskaj twice departed Albania (for Greece) after the 1997 incident,
he returned each time and there were no further incidents. Furthermore, he pointed out
that one remote and isolated incident by itself could not establish a basis for granting
asylum or withholding of removal under the statute. The IJ also concluded that
circumstances had changed enough in Albania, with the rise to power of the Democratic
Party, that Leskaj could not show a well-founded fear of persecution. There was no
evidence that the Democratic Party would not be able to protect him from extremists in
the Socialist Party. In addition, he had no evidence to show that he would be tortured by
the Socialist Party-dominated Albanian police if he returned to Albania. Leskaj appealed.
On May 8, 2007, the Board of Immigration Appeals dismissed the appeal. The
Board concluded that the IJ’s factual findings were free of clear error, 8 C.F.R. §
1003.1(d)(3)(i), and agreed that Leskaj had failed to carry his burden of proof, failed to
provide consistent and credible testimony, and thus failed to establish his eligibility for
any of the forms of relief. The Board also upheld the IJ’s alternative finding that, even if
Leskaj established past persecution, the government successfully rebutted the
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presumption of future persecution. Finally, Leskaj’s testimony and corroborative
evidence did not establish that it is more likely than not that he would be tortured in
Albania. Leskaj timely petitioned for review.
We will deny the petition for review. We have jurisdiction to review final orders
of removal pursuant to 8 U.S.C. § 1252(a)(1). Where the Board renders an opinion that
sets forth grounds of decision independent of those relied on by the IJ, we review only the
Board’s decision and not that of the IJ, see Xie v. Ashcroft, 359 F.3d 239, 240 (3d Cir.
2004), but where, as here, the Board adopted the IJ's reasoning explicitly or implicitly in
disposing of the contentions on appeal, we also review the IJ's opinion, id. at 242. The
Board’s 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). 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. Xie, 359 F.3d at 242. 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). Put another way, we
are required to sustain an adverse credibility determination “unless no reasonable person
6
would have found the applicant incredible.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.
2004) (internal quotations and citation omitted). We uphold adverse credibility
determinations based on omissions and discrepancies that go to the heart of a petitioner’s
claim. Id. at 224.
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 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 Board’s and IJ’s determination
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that the omissions and inconsistencies in his case for relief go to the heart of Leskaj’s
claim, and cast doubt on the key issue of whether he actually experienced past persecution
or will experience future persecution in Albania. Leskaj contends in his brief that the IJ
did not give proper weight to his corroborating evidence and thus her adverse credibility
finding is not supported by substantial evidence. Leskaj argues that reading the
corroborating evidence as a whole, the omission by the Chairman of the Democratic Party
of any reference to the May 1997 incident was trivial because the injury report credibly
establishes that he received injuries to his face and foot, and the Certificates credibly
establish that he was menaced and threatened by the political opposition on account of his
political activities.
We observe that this argument has some force, but Leskaj undeniably omitted the
May 1997 incident from his original asylum application, and when confronted with this
omission, he explained that adjustment of status was his true aim. This explanation falls
short of redeeming his credibility because he reported other events in his original asylum
application – the anonymous telephone threats and the broken windows – which laid the
basis for his political asylum claim. Furthermore, he omitted from his amended
application any reference to the fact that he finally left Albania because he was being
menaced by members of the police. These omissions alone would lead us to uphold the
adverse credibility determination under the deferential standard of review, even if we
agreed with Leskaj that the Chairman’s failure to specifically mention the May 22, 1997
8
beating in the Certificates was trivial and simply does not bear on his credibility in view
of the medical report documenting treatment for injuries on May 23, 1997.
We further conclude that, even assuming that Leskaj testified credibly, a single
beating that does not result in a serious physical injury does not compel reversal of the
Board's decision that he did not suffer past persecution. See Voci v. Gonzales, 409 F.3d
607, 615 (3d Cir. 2005); see also Dandan v. Ashcroft, 339 F.3d 567, 573-74 (7th Cir.
2003) (addressing single three-day detention in which respondent was deprived of food
and suffered swollen face as result of beatings). Because Leskaj cannot show past
persecution, he is not entitled to the presumption of a well-founded fear of future
persecution. Furthermore, the record substantially supports that the Department of
Homeland Security rebutted the presumption of a well-founded fear of persecution
insofar as the 2004 Country Report establishes the rise of the Democratic Party within
Albania, and with that, the willingness and ability of the Albanian government to protect
Leskaj from the lawlessness of a rival political party. In short, we are not compelled to
disagree with the Board and IJ in light of the Country Report, which describes improving
political relations and which does not cite instances of Democratic Party members being
singled out for persecution.
The more exacting standard for withholding of removal under INA § 241(b)(3)(A),
8 U.S.C. § 1231(b)(3)(A), is: "the Attorney General may not remove an alien to a country
if the Attorney General decides that the alien's life or freedom would be threatened in that
9
country because of the alien's race, religion, nationality, membership in a particular social
group or political opinion." The alien must establish by a "clear probability" that his life
or freedom would be threatened in the proposed country of deportation. Immigration &
Naturalization Serv. v. Stevic, 467 U.S. 407 (1984). Because Leskaj 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).
To prevail on a claim under the Convention Against Torture an applicant must
“establish that it is more likely than not that he or she would be tortured if removed to the
proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). The IJ found, and the Board
agreed, that Leskaj did not submit any evidence that supports a finding that he will more
likely than not be tortured if returned to Albania. The Board held that he failed to provide
either testimonial or corroborative evidence showing that he is entitled to relief under the
CAT. We conclude that the record does not compel a different conclusion.
For the foregoing reasons, we will deny the petition for review.
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