Filed: Apr. 29, 2005
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 4-29-2005 Xheko v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 03-4816 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "Xheko v. Atty Gen USA" (2005). 2005 Decisions. Paper 1297. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1297 This decision is brought to you for free and open access by the Opinions of
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 4-29-2005 Xheko v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 03-4816 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "Xheko v. Atty Gen USA" (2005). 2005 Decisions. Paper 1297. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1297 This decision is brought to you for free and open access by the Opinions of ..
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Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
4-29-2005
Xheko v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-4816
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005
Recommended Citation
"Xheko v. Atty Gen USA" (2005). 2005 Decisions. Paper 1297.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1297
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-4816
ARDIAN XHEKO,
Petitioner
v.
*ALBERTO R. GONZALES,
Attorney General of the United States,
Respondent
(*Substituted pursuant to Rule 43(c), Fed. R. App. P.)
On Petition for Review of a Decision and Order of the
Board of Immigration Appeals
(BIA No. A78-719-131)
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 11, 2005
Before: SCIRICA, Chief Judge, ROTH and FUENTES, Circuit Judges
(Filed: April 29, 2005)
OPINION OF THE COURT
SCIRICA, Chief Judge.
Petitioner Ardian Xheko seeks review of the Board of Immigration Appeals’ (BIA)
decision affirming the decision of the Immigration Judge (IJ) to deny his application for
asylum and withholding of removal and his claim under the Convention Against Torture
(CAT). We will affirm.
I
Xheko, a native and citizen of Albania, was stopped trying to enter the United
States without a valid visa. Shortly thereafter, he filed an application for asylum with the
INS. Xheko was interviewed by an asylum officer and referred for removal proceedings.
On March 13, 2001, the INS served Xheko with a Notice to Appear, charging him with
deportability as an alien who was inadmissible at the time of entry for lack of a valid
immigrant visa or travel document.
At removal proceedings, Xheko conceded his deportability and applied for asylum,
general withholding of removal, and withholding of removal pursuant to the CAT.
Briefly summarized, Xheko claimed that on several occasions between 1990 and August
2000, when he left Albania, he was arrested, beaten by police, urinated on while in police
custody, and threatened with guns because of his support for the promonarchist Legality
Party. Based on inconsistencies between Xheko’s testimony and application asylum, the
IJ concluded that Xheko had fabricated his testimony and found him deportable and
ineligible for asylum, general withholding of removal, or CAT protection. Alternatively,
2
the IJ found no evidence that Xheko had ever been persecuted by the Albanian
government. The IJ also concluded, in the alternative, that there had been a fundamental
change in circumstances in Albania, because of which Xheko would not have a well-
founded fear of persecution should he return. Finally, the IJ found Xheko’s asylum
application frivolous. The IJ ordered that Xheko be removed to Albania.
Xheko appealed that ruling to the BIA, making two arguments. First, he argued
that the IJ had wrongly found that Xheko’s asylum application was frivolous. Second, he
argued that he had suffered past persecution in Albania. In a written opinion dated
December 2, 2003, the BIA reversed the IJ’s finding as to frivolity but affirmed the IJ’s
findings of ineligibility for asylum, withholding of removal, and CAT protection.
Specifically, the BIA held that Xheko had failed to carry his burden of proof. It also
upheld the IJ’s adverse credibility determination.
II
BIA determinations are upheld if they are “‘supported by reasonable, substantial,
and probative evidence on the record considered as a whole.’” INS v. Elias-Zacarias, 502
U.S. 478, 481 (1992) (quoting 8 U.S.C. § 1105a(a)(4)). “We will reverse only if the
evidence not only supports a contrary conclusion, but compels it.” Guo v. Ashcroft,
386
F.3d 556, 561 (3d Cir. 2004) (quotation marks and alteration omitted). A petitioner for
asylum bears the burden of supporting his claim through credible testimony. Gao v.
Ashcroft,
299 F.3d 266, 272 (3d Cir. 2002). An adverse credibility finding by the
3
immigration judge should be supported by a specific, cogent reason for the disbelief in
petitioner’s testimony. Balasubramanrim v. INS, 143 F.3d 157, 161-62 (3d. Cir. 1998).
Contending here that the BIA erred, Xheko argues that the IJ’s adverse credibility
determination was not supported by substantial evidence. Though the BIA affirmed the
IJ’s adverse credibility finding, it is not clear whether Xheko presented this argument to
the Board. If it is unexhausted, we would be barred from considering it. 8 U.S.C.
§ 1252(d)(1); Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003).
Nonetheless, it is clear the BIA ruled on it. In any event, as we discuss, Xheko’s
argument is meritless.
In finding Xheko’s testimony not credible, the IJ cited several inconsistencies
between Xheko’s testimony and asylum application. For example, Xheko testified that
government agents attacked his apartment, but that incident does not appear in his
application. Though prompted by his attorney on direct examination, Xheko failed to
mention that in December 1990 he was arrested and beaten by the police, who threatened
his life. This allegation appears in Xheko’s application. Xheko contradicted his
application by testifying that he was arrested by three undercover officers in January
2000; his application states that that incident occurred in January 1999. Xheko also
testified that on July 29, 2000, he was arrested at a coffee shop where a Legality
Movement meeting was being held. He was taken into a dark room where an unidentified
man shot a gun at him. His application, however, states that Xheko was urinated on
4
during this incident, not shot at. According to Xheko’s testimony, however, he was
urinated on during a different incident.1 The IJ considered Xheko’s explanations for the
inconsistencies and found them inadequate. As nothing in the record shows otherwise,
we hold that substantial evidence supports the IJ’s adverse credibility finding. Xheko’s
claims for asylum, withholding of removal, and CAT relief therefore fail.
III
For the foregoing reasons, we conclude that substantial evidence supports the IJ’s
findings and the BIA’s decision. We will affirm the BIA’s decision and order and deny
the petition for review.
1
Xheko’s brief to the BIA, prepared by his attorney, states, “Although [Xheko] had
some lapses in memory and was evidently confused as to some dates, he was not
deliberately fabricating his testimony. . . . Clearly there are some problems in the case to
justify a denial of asylum, but to find this application frivolous was a clear abuse of
discretion.” (App. at 9.)
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