Lumaj v. Atty Gen USA ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
12-16-2004
Lumaj v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-2854
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-2854
NIKE LUM AJ,
Petitioner
v.
JOHN ASHCROFT,
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA
On Petition for Review of a Decision of the
Board of Immigration Appeals
(BIA No. A75-452-022)
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 26, 2004
Before: SCIRICA, Chief Judge, FISHER and BECKER, Circuit Judges
(Filed: December 16, 2004)
OPINION OF THE COURT
SCIRICA, Chief Judge.
Petitioner Nike Lumaj seeks review of the Board of Immigration Appeals’
decision affirming without opinion the decision of the Immigration Judge to deny his
application for political asylum and withholding of removal. We have jurisdiction to
review the Board’s order under 8 U.S.C. § 1252. We will affirm.
I. Background
Nike Lumaj is a native and citizen of Albania who grew up in northern Albania
near the Yugoslavian border. For most of his life, Lumaj lived with his parents and four
siblings, all of whom are Catholic. Lumaj maintains that his family’s problems originated
in 1945, twenty-two years before he was born, as a result of his grandfather’s opposition
to the post-World War II communist occupation of Albania. As a result of his political
activity, communist authorities arrested Lumaj’s grandfather several times and
expropriated most of his real property.
In 1980, Lumaj, with his parents and siblings, attempted to flee Albania on foot,
but the family was apprehended at the Yugoslavian border. His father was sentenced to
twelve years in prison for trying to escape the country. Authorities likewise sentenced
Lumaj, his mother, and siblings to an internment camp where they worked from 1980-
1985 in an agricultural cooperative. Upon their release, Lumaj, his mother and siblings
returned to the family home, which in the interim had been vandalized by members of the
communist regime. For the next two years, Lumaj worked (voluntarily) in an agricultural
cooperative until the Army drafted him to fulfill his compulsory service obligation.
After two years, Lumaj satisfied his military obligation, received a discharge, and
began working construction jobs. In 1993, when the communist regime fell, Lumaj and
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his family joined the Association of Formerly Politically Persecuted Persons in an attempt
to regain possession of the real property taken from Lumaj’s grandfather and to organize
renovations of St. Nicholas Church, a Catholic church located in their village. Despite
the fall of communism, many villagers who remained sympathetic to the former regime
threatened those who attempted to repair St. Nicholas.
In January 1997, Lumaj stopped working and began making preparations to leave
Albania. In April 1997, he acquired an Albanian passport. A short time later, he
collected $7,000, apparently from friends, in order to purchase a counterfeit passport and
an airplane ticket to the United States. Lumaj attempted to enter the United States with
his counterfeit passport, but was detained at the airport by immigration officials. During
an airport interview in which he was assisted by a translator, Lumaj claimed he sought
entry to escape the on-going war in Albania, that he had no political affiliations, and that
he feared returning to Albania because he had borrowed money he could not pay back.
In May 1997, the Immigration and Naturalization Service (INS)1 served Lumaj
with a notice to appear for removal proceedings. INS alleged that Lumaj, who is not a
United States citizen or national, entered the United States without proper documentation
and gained entry by “fraud or willfully misrepresenting a material fact” in violation of 8
U.S.C. § 1182 (a)(6)(C)(i), and further intended to gain admission as an immigrant
1
Beginning on March 1, 2003, INS became a part of the Department of Homeland
Security pursuant to Homeland Security Act of 2002, Pub. L. No. 107-296, 110 Stat. 2135(Nov. 25, 2002).
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without proper documentation in violation of 8 U.S.C. § (a)(7)(A)(i)(I). Lumaj petitioned
for asylum and withholding of removal. After a hearing, the Immigration Judge (IJ)
denied the application on both counts. Lumaj filed a timely appeal, and the Board of
Immigration Appeals (BIA) affirmed without opinion
. II.
Although we generally review orders of the BIA, we also review immigration
judge orders where the BIA affirms without opinion. See Dia v. Ashcroft, 353 F.3d 228,
245 (3d Cir. 2003) (en banc). We review factual findings, including credibility
determinations, under a substantial evidence standard. See 8 U.S.C. § 1252 (b)(4)(B)
(codifying INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992)); Tarrawally v. Ashcroft,
338 F.3d 180, 184 (3d Cir. 2003). Findings of past and future persecution are likewise
subject to substantial evidence review. Gao v. Ashcroft, 299 F. 3d 266, 272 (3d Cir.
2002).
Under the substantial evidence standard, findings are upheld if a reasonable fact
finder could reach a similar conclusion based on the record. We will reverse only if the
IJ’s findings are unsupported by the record or are based on mere conjecture. Id. The IJ
is entitled to rely on record evidence of conditions in the applicant’s home country, which
may be illustrated by State Department reports and reports from non-governmental
organizations. Id. at 278-79; Dia, 353 F.3d. at 249; Chang v. INS, 119 F.3d 1055, 1064
(3d Cir. 1997) (discussing non-governmental reports).
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III.
Here, the Immigration Judge credited Lumaj’s testimony regarding his family’s
experiences from World War II until 1990. But the IJ did not credit Lumaj’s account of
the events surrounding his departure from Albania and entry into the United States.
Particularly, the IJ discredited Lumaj’s explanation of why he sought asylum in the
United States, and of how he raised $7,000 for false travel documents and airfare. The IJ
cited discrepancies between Lumaj’s airport statement and his asylum application, and
considered evidence from the State Department and other sources detailing the conditions
in Albania. Considering the evidence as a whole, the Immigration Judge concluded
Lumaj’s account of his departure from Albania and entry into the United States lacked
credibility.
The adverse credibility finding is supported by material inconsistencies in the
record. The IJ found discrepancies between Lumaj’s initial answers given at the airport
to an immigration officer and later responses on his asylum application. Although airport
interviews are not necessarily “valid grounds upon which to base a finding that an
applicant is not credible,” see Dia, 353 F.3d at 257 (citation omitted), here the finding of
adverse credibility rests on Lumaj’s own testimony, offered with the assistance of an
interpreter, regarding the circumstances surrounding his departure from Albania. In sum,
the record supports a finding of adverse credibility.
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IV.
The Immigration Judge also concluded Lumaj fails to qualify as a refugee for
asylum purposes. See 8 U.S.C. § 1158(b)(1). A refugee is an alien who cannot return to
his or her country of origin “because of persecution or a well-founded fear of persecution
based on race, religion, nationality, membership in a particular social group, or political
opinion.” 8 U.S.C. § 1101 (a)(42)(a). To establish refugee status, an applicant must
demonstrate a genuine and reasonable fear of persecution in the native country. Gao, 299
F.3d at 272. The test is both subjective and objective. Lukwago v. Ashcroft, 329 F.3d
157, 176-77 (3d Cir. 2003). Whether an applicant demonstrates past persecution or a
well-founded fear of future persecution is a factual determination. Id.We have established that persecution is an “extreme concept that does not include
every sort of treatment our society regards as offensive.” Fatin v. INS, 12 F.3d 1233,
1243 (3d Cir. 1993). Persecution includes “threats to life, confinement, torture, and
economic restrictions so severe that they constitute a real threat to life or freedom.” Lin v.
INS, 238 F.3d 239, 244 (3d Cir. 2001) (citations omitted).
Here, the Immigration Judge found Lumaj did not reasonably fear persecution
upon returning to Albania. Relying on reports from the State Department and non-
governmental organizations, the IJ emphasized the changed country conditions after the
fall of the communist regime and found little evidence of current religious or political
persecution in Albania. Buttressing this conclusion, a Department of State opinion letter
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states that any adversity Lumaj may face upon returning to Albania is more a result of
general instability and poverty rather than targeted religious or political persecution. The
IJ also noted that northern Albania, Lumaj’s home region, is predominantly Catholic,
rendering religious persecution less likely.
The IJ further found that neither Lumaj’s military work assignments nor his
brother’s injuries establish a well-founded fear of future persecution. While violence
against a family member may “support for a claim of persecution and in some instances is
sufficient to establish [a well-founded fear of] persecution,” Baballah v. Ashcroft, 335
F.3d 981, 988 (9th Cir. 2003), the IJ reasoned that the facts here, where Lumaj admits he
does not know exactly what happened to his brother, do not meet this threshold.
Likewise, the IJ found that any past persecution suffered by Lumaj or his family, while
reprehensible, did not in light of the fundamental change in country conditions give rise
to a well-founded fear of future persecution. See Lukwago, 329 F.3d at 173-74 (citing 8
C.F.R. § 208.13(b)(1) for proposition that a showing of past persecution is rebuttable by a
showing of changed country conditions). Finally, the IJ found that the more recent
incident involving Lumaj’s family home did not constitute persecution. Accordingly, the
IJ determined that Lumaj did not establish a well-founded fear of future persecution.
The Immigration Judge’s order based on adverse credibility and persecution
findings is supported by the record. The IJ did not err in determining that changed
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country conditions undermine Lumaj’s claim of fear of future persecution. Lukwago, 329
F.3d at 174.
V.
Lumaj also challenges the BIA’s decision to affirm the immigration judge without
opinion. We resolved this issue in Dia, where we held that “nothing in the INA
specifically requires the BIA to explain its decisions.” 353 F.3d at 236 (quoting Abdulai
v. Ashcroft, 239 F.3d 542, 555 (3d Cir. 2001)). Additionally, we stated that “[n]either the
Constitution nor Congress guarantees a de novo review by the BIA, nor do they guarantee
a right to a fully reasoned opinion by the BIA.” Id. at 243 (citation omitted).
VI. Conclusion
For the foregoing reasons, we will affirm the order of the BIA.
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