Qorraj v. Atty Gen USA , 89 F. App'x 318 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
1-29-2004
Qorraj v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-4099
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-4099
PELLUMB QORRAJ,
Petitioner
v.
JOHN ASHCROFT,
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA,
Respondent
On Petition for Review of an Order of the
Immigration and Naturalization Service
Board of Immigration Appeals
(BIA No. A76-119-991)
Argued July 31, 2003
Before: SCIRICA, Chief Judge, RENDELL and AMBRO, Circuit Judges.
(Filed: January 29, 2004)
Kimberly A. Rudolph [ARGUED]
Gay, Chacker & Mittin
1731 Spring Garden Street
Philadelphia, PA 19130
Jewls C. Rogowska
3718 Spring Garden Street
Philadelphia, PA 19104
Counsel for Petitioner
Michael P. Lindemann
Linda S. Wernery
Douglas E. Ginsburg
John D. Williams [ARGUED]
U. S. Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
OPINION OF THE COURT
RENDELL, Circuit Judge.
Pellumb Qorraj petitions the court for review of the Attorney General’s denial of
his claims for relief from removal. Our jurisdiction arises under 8 U.S.C. § 1252(a). We
will deny the petition for review.
I.
Qorraj, a native of Albania, entered the country as a nonimmigrant with
authorization to remain in the country until December 19, 1998. When he remained
beyond that time, he was placed in removal proceedings. He conceded deportability, but
claimed that he was eligible for asylum, withholding of departure, and relief under the
Convention Against Torture (CAT) because of persecution on account of his political
opinion. At his hearing before the Immigration Judge (IJ), Qorraj testified that the
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persecution he alleged stemmed directly from his service in the Albanian army. Qorraj
was a member of the army since 1982, having received his first rank in 1992. At the time
of his hearing, he was a chief of a battalion in the army – holding the rank of captain –
and was 37 years old. He was the only person who testified at the hearing.
The series of events that he alleged in support of his claims for relief began in
October, 1996, at a time when Albania was in domestic upheaval. According to Qorraj, a
secret service officer who was a very close relative to a deputy of the Democratic Party –
the party in power at the time – threatened him that, if he continued to vocalize the fact
that he “did not like the politics” of the army, he would be discharged from the army and
put in prison. Qorraj testified that he had “openly and courageously” shared his opinion
that “the military should be free of politics.”
Qorraj further testified to various incidents more directly related to his service in
the army. The first of these occurred on Feb. 19, 1997. That day, while Qorraj was
carrying out a major’s order to protect the office of the mayor of Tirane, the Albanian
capital, he was given orders to shoot to kill anyone approaching either the mayor’s office
or the ministry of education. Because he believed that military regulations did not allow
him to shoot citizens, he requested that the major put this order in writing. The major
refused and reported Qorraj’s request to his supervising general. Later that day, Qorraj
was arrested by army policemen and was imprisoned for five days because his superiors
deemed him, as Qorraj put it, to be an “undisciplined member of the army.”
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After his release and a stint in the hospital due to weakness resulting from the
incarceration, Qorraj returned to work. A major, however, told him to go home and
placed Qorraj on leave. Qorraj believed that he was put on leave as a first step to
discharging him from the army. Nonetheless, he returned to command his battalion.
On March 5, 1997, Qorraj’s battalion was ordered to go from its permanent
location in Tirane to Vlora “to crush the demonstrations” that had been taking place for
many days in the southern part of Albania. The demonstrations were led by members of
the Socialist Party. The description that Qorraj gave of the demonstrations makes them
out to be more like riots. Qorraj’s battalion was ordered to protect a certain area of the
city and to shoot to kill anyone who approached that area. Qorraj obeyed the order to go
to the area, but refused to order his men to kill anyone. When the demonstrators began to
shoot at his battalion, Qorraj ordered the men to shoot around (not at) the citizens in order
to scare them off. On March 11, 1997, more troops were brought in to fortify Qorraj’s
battalion. Qorraj seeing that it “was going to turn into a massive attack against the
protestors,” ordered that his troops withdraw. Qorraj told some army officers that he was
withdrawing because a massive attack would go against military regulations. As his
battalion withdrew, those army officers fired upon it, but no one was killed.
Qorraj took his battalion to the town of Fier. There, the men asked for vehicles to
get to Tirane. Their requests were initially rebuffed. Eventually, though, the army did get
them vehicles, either, it appears, “because . . . they felt kind of obligated,” or “because
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they were scared of what could happen” if they decided otherwise. While at Fier, Qorraj
was told by a general to return to Vlora or the whole battalion would be imprisoned for
the rest of their lives. Qorraj still refused. Eventually, other divisions joined Qorraj’s
troops in refusing to fight.
On March 12, 1997, the battalion returned to Tirane. Qorraj testified that the
battalion’s base was attacked by civilians, secret police, and representatives of the
Democratic Party. But a major refused to grant the battalion permission to use weapons
against the civilians. The soldiers soon fled as the civilians stole their weapons and
supplies.
In June, 1997, Qorraj participated in discussions in Tirane as to what the military
should do in the newly stabilized country. He gave a speech to about 65-70 military
personnel conveying his belief that the army was too much of a political tool and should
not be used to further the ends of politicians. After the meeting, Qorraj received two
“threats” – which, based on Qorraj’s description, really were attacks. One of the “threats”
involved men shooting into his house. He assumed that the men were Democrats because
they were calling him a traitor. The second “threat” occurred on July 8, 1997. The
network through which the electricity to Qorraj’s family’s home ran was destroyed. The
people who did it were cursing at him and his family. He believed, without supporting
evidence, that the people were members of the Democratic Party.
Qorraj’s family fled to Skrapar, and Qorraj “went into hiding.” He soon took a test
5
at the U.S. embassy to see if he was eligible for a U.S.-sponsored advanced training
course in tanks at Fort Knox, Kentucky. He passed the test. He testified that he and the
chief of human resources of his brigade decided to keep his participation a secret, but
later testified that he was threatened at the airport that if he ever returned he would have
trouble, and that he thought members of the government knew of his participation. In any
event, Qorraj left Albania for the U.S. on April 13, 1998. His training ended Dec. 16 or
17, 1998. Although he testified that he had not intended to stay in the U.S. permanently,
he decided to remain in the U.S. after learning from his parents that people in Albania
were asking about him.
Qorraj also testified that the Democratic Party is no longer in power, and that the
Socialists have come into power. Qorraj claimed to have problems with the Socialists,
but did not specify what exactly. Although he was never court-martialed and was never
demoted in rank, his position was lowered.
II.
The basic law underlying this petition is clear. The Attorney General, in his
discretion, may grant asylum to Qorraj if he meets the definition of “refugee” as defined
in the Act, i.e., an alien who is unable or unwilling to return to his home country “because
of persecution or a well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political opinion.” 8 U.S.C. §
6
1101(a)(42)(A). To qualify for withholding of removal, on the other hand, Qorraj must
show that, if deported, there is a “clear probability” – that is, it is “more likely than not” –
that he will be persecuted on account of a specified ground – here, political opinion – if
returned to his native country. See Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003).
If Qorraj “fails to establish the well-founded fear of persecution required for a grant of
asylum, he . . . will, by definition, have failed to establish the clear probability of
persecution required for withholding of deportation.” Id. at 469-70. To qualify for relief
under the Convention Against Torture, 1465 U.N.T.S. 85, 23 I.L.M. 1027 (1984), Qorraj
must prove that he is more likely than not to be tortured in Albania (the country of
removal). See Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir. 2003) (citing 8
C.F.R. §§ 208.16(c)(2) & (4))
The Immigration Judge made clear his disbelief as to most of what Qorraj testified
to, noting that he found it “incredible” that Qorraj would disobey a major’s orders and
that Qorraj would refuse to fire on civilians that were firing on him. The IJ noted two
parts of Qorraj’s testimony that were contradictory: whether the military gave him
vehicles for his battalion at Tirane, and whether anyone other than a major knew that he
was attending tank school.
The IJ also noted the lack of proof of persecution. Qorraj refused to carry out
military orders, but was only minimally punished for this, and, in fact, was allowed to
remain a part of the army. The IJ found no evidence linking the two “threats” on Qorraj’s
7
home to the government or the Democratic Party. According to the IJ, Qorraj did not
articulate a sufficient basis for his belief. Moreover, the IJ concluded that any
persecution that Qorraj suffered was not due to his political opinion, but, rather, due to his
failure to comply with the orders of his superiors. As for the threats that his parents
relayed to Qorraj while he was in the U.S., the IJ found that they also were more likely the
result of his desertion of his duty than his alleged political opinion.
The BIA affirmed without opinion under 8 C.F.R. § 3.1(a)(7) (2002). Qorraj’s
request for voluntary departure, however, was granted.
Where, as here, the BIA affirms without opinion, we review the IJ’s decision to
address substantive challenges. Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002). We
initially review the administrative findings of fact for substantial evidence. INS v. Elias-
Zacarias, 502 U.S. 478, 481 (1992). We will only reverse if “any reasonable adjudicator
will be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Elias-
Zacarias, 502 U.S. at 481 n.1.
Importantly, Qorraj does not take issue with the IJ’s finding that Qorraj testified
inconsistently as to the two specified aspects of his story. Instead, his basic argument is
that the IJ should have found that he was – or has a “well founded fear” that he will be –
persecuted on account of his political opinion. He also argues that there was a
presumption of future persecution based on his past persecution that the Government
never rebutted. Although he has articulated his alleged political opinion in various ways,
8
it seems that it was best represented at oral argument as being that he was opposed to the
army’s practice of shooting at innocent civilians. Given our ruling, we need not decide
whether this qualified as a “political opinion,” but will assume so for purposes of our
analysis.1
As the Supreme Court has made clear, Qorraj “must establish that he was a ‘well-
founded fear’ that [he] will [be] persecuted . . . because of that political opinion” in
order to establish eligibility for asylum. Elias-Zacarias, 502 U.S. at 483 (emphasis in
original). Qorraj has not convinced us that the IJ’s determination that Qorraj failed to
show that he was persecuted because of that political opinion was not supported by
substantial evidence. Qorraj himself testified that the problems he allegedly suffered did
not come as a result of his voicing opposition to the military policies, but, rather, as a
result of his refusal to carry out those policies, which, in the context, amounted to a
refusal to do his job or carry out orders. In addition, Qorraj has not demonstrated to us
that the IJ’s determination that he did not have a “well-founded fear” that he will be
persecuted because of his political belief was not based on substantial evidence. As the IJ
pointed out, there is no evidence other than Qorraj’s surmise that the people who attacked
his home were from the Democratic Party. Even if there was such evidence, it would not
support his claims because it would not satisfy the requirement that he show that the
1
Our court has interpreted the concept of “political opinion” broadly. See, e.g.,
Fatin v. I.N.S., 12 F.3d 1233, 1242 (3d Cir. 1993) (“[W]e have little doubt that feminism
qualifies as a political opinion within the meaning of the relevant statutes.”).
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complained-of persecution was at the hands of government actors or forces the
government is unable or unwilling to control. See Baballah v. Aschcroft, 335 F.3d 981,
987 (9th Cir. 2003). As Qorraj testified, the Democratic Party is no longer in power, but,
rather, the Socialists are. And, other than his brief testimony that he has some problems
with the Socialists, there is no evidence in the record that the Socialists would persecute
him. M oreover, we believe that the paucity of supporting testimony and documentation is
compounded by the IJ’s credibility concerns. See Abdulrahman, 330 F.3d at 597; see also
Gao, 299 F.3d at 272 (“Aliens have the burden of supporting their asylum claims through
credible testimony.”).
We therefore will not disturb the IJ’s finding that Qorraj did not qualify for
asylum, and, a fortiori, his refusal to grant Qorraj withholding of removal. See Zubeda,
333 F.3d at 469-70. For the same reasons, we cannot conclude that substantial evidence
did not support the IJ’s determination that Qorraj did not qualify for relief under CAT.
There was substantial evidence in the record for the IJ to conclude that Qorraj was not
“more likely than not” to be tortured if he returns to Albania.
III.
Qorraj also levels an attack against the streamlining review procedure of the BIA
under 8 C.F.R. § 3.1(a)(7)(2002). He argues that it is unconstitutional because it violates
procedural due process protections guaranteed by the Fifth Amendment. See U.S. Const.
10
amend. V. However, as we recently concluded, “the streamlining regulations do not
violate the Due Process Clause of the Constitution.” Dia v. Ashcroft, 2003 WL
22998113, at *5 (3d Cir. Dec. 22, 2003). Thus, we reject Qorraj’s challenge.
Accordingly, the petition for review will be denied.
/s/ Marjorie O. Rendell
Circuit Judge
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