Ismailanji v. Atty Gen USA , 293 F. App'x 151 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
9-18-2008
Ismailanji v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3421
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-3421
___________
ARTAN ISMAILANJI,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A78 698 107)
Immigration Judge: Honorable Miriam Mills
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 10, 2008
Before: BARRY, SMITH and HARDIMAN, Circuit Judges
(Opinion filed: September 18, 2008)
___________
OPINION
___________
PER CURIAM
Artan Ismailanji petitions for review of a Board of Immigration Appeals (“BIA”)
decision dismissing his appeal of the denial of his applications for asylum, withholding of
removal, and relief under the Convention Against Torture (“CAT”). We will deny the
petition for review.
Ismailanji is a native and citizen of Albania. He arrived in the United States in
1999 through the Visa Waiver Pilot Program using a fraudulent passport. The
Immigration and Naturalization Service referred the matter to the Immigration Court
pursuant to 8 C.F.R. § 208.2(b) to adjudicate his applications for asylum, withholding of
removal, and relief under the CAT.
Ismailanji testified before an Immigration Judge in New York that he left Albania
because his life was in danger on account of his active membership in the Democratic
Party. Ismailanji testified that his first problem occurred on February 15, 1997, at a party
rally. Masked people arrived, and he and two others were taken away in a van, beaten,
and threatened over a 12-hour period. Ismailanji further testified that on June 18, 1997,
he helped organize a rally attended by approximately 1,000 people. He stood behind the
podium where the President of Albania spoke. According to Ismailanji, gangsters
affiliated with the Socialist Party arrived and fired guns. The local police fled, and the
national guard took the President away. The gangsters took him and four others, held
them for half a day, and then released them.
Ismailanji also testified that on June 29, 1997, while working at the polls on
election day, masked men took him and another party member away. He was held for two
hours, and then thrown out of the car. Ismailanji then learned that the Socialist Party won
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the election. He stated that in July 1998 he was arrested at home, taken to a police
station, and beaten until he was unconscious. A policeman told him that he should not
participate in political activities. After his release, Ismailanji did not engage in any
political activities. Ismailanji stated that he had also received anonymous phone calls and
that people had shot at his house.
Ismailanji left Albania in November 1998 and went to Bulgaria and Macedonia.
He sought asylum at the United States embassies apparently without success. Ismailanji
returned to Albania because he had no place to go. He received a letter from the
prosecutor’s office requiring that he appear in court for questioning related to recent
demonstrations. Ismailanji did not appear because he was afraid. He went to his aunt’s
house, where he stayed for five months. Ismailanji went back and forth between Albania
and other countries several times before arriving in the United States in July 1999.
The Immigration Judge made an adverse credibility finding based on
inconsistencies between Ismailanji’s testimony and his asylum application regarding the
events that occurred on June 18, 1997. In his asylum application, Ismailanji stated that he
had attended a meeting at a Democratic Party family’s home, and that the President was
there. He stated that several cars circled the house, shot into the air, and many party
members were injured. The police came and fled with the President. The Immigration
Judge stated that Ismailanji did not testify that the events on this date occurred in a house,
but at a rally. Ismailanji also wrote in his application that there were eight hostages, but
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he testified that there were five.
The Immigration Judge also noted that Ismailanji wrote that the masked men took
the hostages to an unknown destination, that the police rescued them with ground forces
and helicopters, that a police officer was killed, and that another was captured, tied up,
and burned alive. Ismailanji, however, testified that the captors simply released him and
the other hostages. The Immigration Judge found the references to ground forces and
helicopters implausible, and stated that the inconsistencies were so great that he could not
credit anything else Ismailanji had said. The Immigration Judge noted that the
inconsistency was the most outrageous he had seen in 14 years on the bench.
Ismailanji appealed, and the BIA vacated the Immigration Judge’s decision and
remanded the case for further proceedings and a new decision. The BIA explained that,
although the Immigration Judge had accurately described the inconsistencies in the
evidence, the Immigration Judge did not allow Ismailanji to explain them.
Ismailanji requested a change of venue, and an Immigration Judge in Philadelphia
(“IJ”) heard the matter on remand. Ismailanji explained that the inconsistencies were due
to the error of either the lawyer who prepared the asylum application or the translator.
Ismailanji stated that it appeared that one or the other had mixed together the events that
occurred in the town square with events that occurred later in the day at the house. The
IJ faulted Ismailanji for failing to get the notes that he had given his former attorney, and
concluded that the differences between the two versions were too stark to be attributable
4
to a translation error. The IJ made an adverse credibility finding and concluded that
Ismailanji had not established past persecution.
The parties also provided evidence of current country conditions in Albania, and
the IJ found Ismailanji not credible as to why he believed that he would still be in danger
if he returned to Albania given that the Democratic Party was then in power. Ismailanji
had stated that the threats were still valid, and that the Democratic and Socialist Parties
remained in a silent war. The IJ noted that Ismailanji provided no documentary evidence
to support his opinion, and that news articles established that the United States found the
shift in power to be a success for the democratic process. The IJ further noted that, even
before the elections, the 2004 Department of State Profile of Asylum Claims and Country
Conditions (“2004 Profile”) reported no major outbreaks of political violence since 1998,
and that the major political parties had not engaged in abuse or coercion against their
political opponents. Thus, the IJ concluded that Ismailanji did not have a well-founded
fear of harm based on his Democratic Party membership in light of the changed country
conditions.
The BIA dismissed Ismailanji’s appeal. Assuming that Ismailanji was credible
and that he established past persecution, the BIA concluded that the IJ correctly found
that the presumption of a well-founded fear of persecution was rebutted based on a
fundamental change in circumstances in Albania since Ismailanji left the country. The
BIA noted that the Department of State Country Report, published in 2005, reflected that
5
the Socialist and Democratic Parties were the two largest parties in Albania, and that the
Democratic Party was in power. The 2004 Profile noted that, although serious political
repression existed in the past, there were no indications of systemic political persecution,
or that the Socialist Party was engaged in a pattern of violent behavior against its
opponents. The BIA also decided that Ismailanji failed to meet the higher burden of
proof required for withholding of removal and CAT relief. This petition for review
followed.
In his brief, Ismailanji primarily challenges the IJ’s adverse credibility finding.
The BIA, however, assumed that Ismailanji was credible, and that he established past
persecution. The BIA dismissed Ismailanji’s appeal on the ground that changed country
conditions rebut a presumption of a well-founded fear of future persecution. We will
address Ismailanji’s arguments to the extent they challenge this conclusion.
Ismailanji also contends that we must review the IJ’s decision because the BIA dismissed
his appeal without providing an independent analysis. This contention lacks merit. The
BIA’s decision reflects that the BIA did not adopt or defer to the IJ’s decision, and that it
provided its own analysis.
Ismailanji asserts that the Government provided two documents to establish a
fundamental change in circumstances – the 2004 Profile and a 2005 news article on the
Albanian elections. Ismailanji argues that the news article simply reports that a new
government headed by the Democratic Party was sworn in, and does not address political
6
violence. He also argues that the 2004 Profile predates the elections and only establishes
a slight decrease in documented political persecution. Ismailanji also contends that
insufficient weight was given to the 2004 U.S. Department of State Report, which
evidences persecution.
There is substantial evidence in the record supporting the BIA’s conclusion that
Ismailanji does not have a well-founded fear of persecution due to changed country
conditions. As the BIA noted, not only is Ismailanji’s own political party in power, but
the 2004 Profile provides that there were no indications of systemic political persecution,
or that the Socialist Party was engaged in a pattern of violent behavior against its
opponents. Ismailanji has not identified any evidence compelling a contrary conclusion.
See Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001) (explaining that, under the
substantial evidence standard of review, the BIA’s findings must be upheld unless the
evidence not only supports a contrary conclusion, but compels it). The 2004 U.S.
Department of State Report reflects human rights abuses by the police, but these abuses
were not reported to be of a political nature. Ismailanji’s father provided a declaration in
2002 stating that people came to his home looking for Ismailanji after he left, and that he
was threatened in April 2000, but there was no evidence at Ismailanji’s 2005 hearing
suggesting that such threats were ongoing, and the 2004 Profile provides that there was
no indication that Socialist Party members engage in such behavior.
Ismailanji also argues that, even if the Government established a fundamental
7
change in circumstances, the regulations allow a grant of asylum based on a reasonable
probability of other serious harm. See 8 C.F.R. § 208.13(b)(1)(iii). Ismailanji asserts
that he established such a possibility based on his testimony that the Socialist Party
would continue to target him, and that the elections in Albania were superficial. This
argument, however, appears to be the same as his political persecution claim. We agree
with the Government that Ismailanji has not shown that he would suffer other serious
harm.
Finally, Ismailanji argues that the IJ failed to adjudicate his applications for
withholding of removal and relief under the CAT. The IJ, however, denied “all relief”
based on her adverse credibility finding and finding of changed country conditions, and
ordered that Ismailanji’s request for asylum and withholding of removal, including under
the CAT, be denied. 11/19/05 IJ Dec. at 8. The BIA also rejected these claims.1
Accordingly, we will deny the petition for review.
1
Although Ismailanji does not make the argument, the BIA erroneously reasoned that
it followed from his failure to show a well-founded fear for purposes of asylum that he
did not meet his burden of proof for purposes of protection under the CAT. See Zubeda
v. Ashcroft, 333 F.3d 463, 476 (3d Cir. 2003) (noting rejection of asylum claim does not
control analysis of claim for relief under the CAT). However, there is no evidence in the
record supporting a claim that Ismailanji will more likely than not be tortured in Albania.
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