Filed: Aug. 14, 2006
Latest Update: Feb. 22, 2020
Summary: F.3d 11, 15 (1st Cir.11, Tota argues that [w]hile the IJ theoretically could have, reviewed all of the evidence in the record and determined that the, substance of the 33 pages [submitted by the government] outweighed, the volume of the 500 [submitted by petitioner], he neglected to do, so.
United States Court of Appeals
For the First Circuit
No. 05-2391
GEN TOTA,
Petitioner,
v.
ALBERTO R. GONZÁLES,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Torruella and Howard, Circuit Judges.
Daniel F. Cashman, with whom Cashman & Lovely, P.C. and
Susanna L. Shafer, on brief for petitioner.
Michael P. Sady, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, on brief for
respondent.
August 14, 2006
TORRUELLA, Circuit Judge. Petitioner Gen Tota ("Tota")
petitions for review of the Board of Immigration Appeals' ("BIA")
summary affirmance of an Immigration Judge's ("IJ") denial of his
applications for asylum and withholding of removal.1 We affirm.
I. Background
Tota is a native and citizen of Albania who entered the
United States on April 6, 2000 without a valid entry document. On
December 13, 2000, Tota filed an I-589 Application seeking asylum
and withholding of removal. On January 31, 2001, the Immigration
and Naturalization Service ("INS")2 served Tota with a Notice to
Appear charging that he was removable under § 212(a)(6)(A)(i) of
the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i),
as an alien present in the United States who has been neither
admitted nor paroled. On March 13, 2001, Tota admitted the factual
allegations against him and conceded removability.
1
Tota also claims that the IJ erroneously denied protection under
the Convention Against Torture. He did not raise this claim below,
however, and we therefore deem the issue waived. See Debab v. INS,
163 F.3d 21, 26 (1st Cir. 1998) (issues not raised before the IJ or
BIA may not be raised upon judicial review).
2
In March 2003, the relevant functions of the INS were
transferred into the new Department of Homeland Security and
reorganized into the Bureau of Immigration and Customs Enforcement
("BICE"). For simplicity, we refer to the agency throughout this
opinion as the INS.
-2-
After several preliminary hearings, Tota testified on
May 12, 2004 before an IJ.3 We draw the following facts from this
testimony and documents Tota presented in support of his
application.
Tota was born in Albania in 1974 and is of Muslim faith.
In July 1986, under the rule of the Albanian Communist regime,
Tota's father was arrested on charges of propaganda. In October of
that year, Tota and his mother and brother were interned in a labor
camp where they remained until they were discharged in May 1990,
following the release of Tota's father by the terms of a 1989
amnesty program. Following their release, Tota and his family
moved in with Tota's uncle in Tirana, the capital city of Albania.
In July 1990, Tota was arrested along with approximately
thirty others outside the German Embassy in Tirana.4 Tota was
detained for two weeks without being charged, during which time he
was beaten and denied access to an attorney. Less than one year
later, in February 1991, he was arrested while attending a
demonstration against the ruling Communist Party. Tota was
3
Tota's initial hearings took place before IJs in New York City.
He was granted a change of venue to Boston, closer to his new home
in Salem, Massachusetts, in a January 2004 proceeding.
4
Tota's explanation as to what he was doing at the Embassy was
indiscernible in the transcript of his hearing, but he later stated
that at the time of his arrest, the police arrested many
individuals whom they thought were trying to leave the country.
-3-
detained for one night without being charged with a crime and was
again beaten.
In 1992, the Communist Party fell and the Democratic
Party ("DP") came to power in Albania. In 1995 Tota gained
employment as a driver for the DP. The DP ruled until 1997, at
which time the Socialist Party ("SP") took control of the
government. The SP leadership consisted largely of former members
of the Communist Party.
Tota continued his work as a driver for the DP until
February 2000. During this time, he was beaten and his life was
threatened on five separate occasions. In September 1998, police
arrested Tota at his home after he attended the funeral of the
prominent DP leader Azem Hajdari.5 After his arrest, Tota was
detained for approximately twenty hours without being charged, and
was denied access to an attorney. During this detention, the
police beat Tota, threatened to kill him, and warned that similar
incidents would occur if he continued to support the DP. Upon his
release, Tota did not seek medical attention but was cared for by
his mother, a nurse.
The second incident took place in October 1998. After
parking his car, Tota was approached by three people, including one
5
Hajdari had been assassinated earlier that month, sparking riots
in which mobs attacked government buildings and leading to the
arrest of hundreds. Tota denies having participated in this
violence.
-4-
member of the SP, whom Tota recognized as a former member of the
Communist regime. The assailants again ordered Tota not to
continue working for the DP and beat him. The incident lasted ten
minutes, and Tota did not seek medical attention. The third
incident occurred in March 1999. Tota was again stopped and beaten
by police, who ordered him to stop supporting the DP. Once again,
Tota did not seek medical treatment.
In December 1999, Tota was arrested after he chauffered
the leader of the DP in Tirana. Tota was taken to a police
station, where he was held for approximately ten or eleven hours,
during which time two people beat him, kicking and punching him,
and threatened his life if he continued to work for the DP. Tota
was never officially charged with a crime. Following this
incident, Tota sought medical attention from a doctor who was a
friend of the family. He received a shot for his pain and a few
days worth of medicine.
The final incident that Tota detailed occurred in
February 2000. Tota and his father were approached by masked
secret service officers who beat them and threatened their lives if
they did not stop supporting the DP. At one point, the officers
put a handgun to Tota's head. The incident lasted twenty minutes
and neither Tota nor his father sought medical treatment
thereafter.
-5-
After the February incident, Tota stopped working as a
driver and discontinued his "volunteer" work distributing the DP
newspaper. On April 3, 2000, Tota left Albania on a ship to Italy,
where he stayed for two days before using a forged Greek passport
to fly to Montreal, Canada. On April 6, 2000, Tota walked across
the Canadian border into the United States. He was met by a
companion who drove him to Plattsburgh, New York, from where he
took a bus to New York City. Tota's parents have been granted
political asylum in the United Kingdom, where his younger brother's
asylum application is still pending.
Tota testified that he left Albania because "life was
difficult." He feared that if he returned to Albania, he would
undergo episodes similar to those he experienced between 1998 and
2000 because the SP is still in power and maintains a strong police
force.
The IJ denied Tota's application for asylum and
withholding of removal. Though the IJ expressed some skepticism
about certain aspects of Tota's testimony, he stated that Tota was
"essentially credible" throughout direct examination. The IJ also
found that Tota's testimony, if credible, would establish past
persecution. He thus "[set] aside the issue of credibility, and
assum[ed] past persecution ha[d] been established." The IJ then
addressed the issue of Tota's well-founded fear of future
persecution. First, the IJ found that Tota was merely a
-6-
"driver/employee" of the DP, and not a political operative.
Second, the IJ found that "much has changed" in Albania, taking
particular note of the 2004 United States State Department Profile
of Asylum Claims and Country Conditions for Albania.6 The IJ
quoted a passage stating that "there are no indications that the
Socialist Party, either through its own organization or through
Government authorities, is engaged in a pattern of repression of
violent behavior against its opponents." In sum, the IJ stated
that it was "extremely unlikely that the Government will be waiting
to persecute a minor employee of the Democratic Party who is
returning after four years." The IJ concluded by finding that the
government had sustained its burden of proof to show a change in
country conditions beyond a preponderance of the evidence, and that
"[Tota's] fear of returning to Albania cannot be said to be well-
founded." Because Tota failed to meet the standard for
establishing asylum, the IJ ruled that he failed to meet the
narrower standard for withholding of removal, and denied this
application as well.
Tota appealed to the BIA, which summarily affirmed the
IJ's decision without opinion on August 22, 2005. Tota now
contests the decisions of the BIA and IJ.
6
United States Department of State, Bureau of Democracy, Human
Rights and Labor, Albania: Profile of Asylum Claims and Country
Conditions (2004).
-7-
II. Discussion
A. Standard of Review
Because the BIA affirmed the IJ's holding without
opinion, we evaluate Tota's claims with reference to the findings
of the IJ. See Akinfolarin v. Gonzáles, 423 F.3d 39, 42 (1st Cir.
2005); Keo v. Ashcroft,
341 F.3d 57, 60 (1st Cir. 2003); 8 C.F.R.
§ 1003.1(e)(4).
We focus first on Tota's asylum claim. If this fails on
the merits, his withholding of removal claim fails as well, because
the latter claim "places a more stringent burden of proof on an
alien than does a counterpart claim for asylum." Bocova v.
Gonzáles, 412 F.3d 257, 262 (1st Cir. 2005) (citing Makhoul v.
Ashcroft,
387 F.3d 75, 82 (1st Cir. 2004)) (internal citation
omitted).
Tota bears the burden of establishing eligibility for
asylum by demonstrating that he is a "refugee." 8 U.S.C. § 1158
(b)(1)(B)(i); 8 C.F.R. § 208.13(a). A refugee is any person who is
outside of his home country and is "unable or unwilling to return
. . . 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. § 1101
(a)(42)(A). An applicant may meet this burden by showing past
persecution, which creates a legal presumption that he has a well-
founded fear of future persecution. 8 C.F.R. § 208.13(b)(1). When
-8-
a petitioner has established a presumption that he has a well-
founded fear of future persecution, the government can rebut this
by showing by a preponderance of the evidence that "[t]here has
been a fundamental change in circumstances such that the applicant
no longer has a well-founded fear of persecution." 8 C.F.R.
§ 208.13(b)(1)(i)(A).7
We review the IJ's factual findings under the deferential
"substantial evidence" standard. See Dhima v. Gonzáles, 416 F.3d
92, 95 (1st Cir. 2005). We must uphold the determinations of the
IJ if they are "supported by reasonable, substantial, and probative
evidence on the record considered as a whole." INS v. Elías-
Zacarías,
502 U.S. 478, 481 (1992). See also Guzmán v. INS,
327
F.3d 11, 15 (1st Cir. 2003). An IJ's findings of fact are
"conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B). See also
Dhima, 416 F.3d at 95.8
B. Merits
The IJ assumed that Tota's testimony was "essentially
credible" and that the incidents to which he testified amounted to
7
Alternatively, a petitioner may directly establish a well-
founded fear of persecution based on one of the five grounds listed
above. 8 C.F.R. 208.13(b)(2). Tota does not make this claim, so
we decline to address the issue further.
8
Findings as to changed circumstances are usually factual
determinations. Mehilli v. Gonzáles, 433 F.3d 86, 93 (1st Cir.
2005). Here, the IJ's determination was a factual one, based on
the 2004 State Department Profile of Asylum Claims.
-9-
past persecution. This creates the presumption that Tota has a
well-founded fear of future persecution, qualifying him for asylum
unless the government rebuts this presumption through evidence of
changed country circumstances. Tota's first argument on appeal
rests on the premise that the IJ did not afford him this
presumption. This is simply incorrect. In making this argument,
Tota quotes one line from the IJ's decision: "[t]he court finds it
extremely unlikely that the Government will be waiting to persecute
a minor employee of the Democratic Party who is returning after
four years." This line itself admittedly affords no explicit
presumption of a well-founded fear -- indeed it implies
unreservedly that Tota's fear is not objective. The IJ, however,
stated in his very next sentence that "[t]he court is satisfied
that the Government has sustained its burden of proof by a
preponderance of evidence with regard to the change of conditions
in Albania and that respondent's fear of returning to Albania
cannot be said to be well-founded." This sentence indicates that
the IJ had recognized a presumption of a well-founded fear but had
found that the government rebutted it. We therefore find that,
though he may not have said so in as many words, the IJ correctly
afforded Tota the presumption of a well-founded fear of future
persecution.9
9
To the extent that the IJ did not "separate the strands" of this
process and "discuss them individually," Waweru v. Gonzáles, 437
F.3d 199, 204 (1st Cir. 2006), we will "uphold a decision of less
-10-
In the alternative, Tota claims that if the IJ did
correctly apply the burden-shifting procedure, substantial evidence
does not support the determination that "[t]here has been a
fundamental change in circumstances such that the applicant no
longer has a well-founded fear of persecution." 8 C.F.R. § 208.13
(b)(1)(i)(A). We disagree.
The government's evidence of changed country conditions
is presented mainly in the form the 2004 State Department Profile
of Asylum Claims. While "[t]he advice of the State Department is
not binding," Gailius v. INS, 147 F.3d 34, 45 (1st Cir. 1998)
(citations and internal quotation marks omitted), State Department
reports are "generally probative of country conditions." Palma-
Mazariegos v. Gonzáles,
428 F.3d 30, 36 (1st Cir. 2005). Evidence
in these reports never "automatically trump[s]" petitioner's
specific evidence, Waweru v. Gonzáles,
437 F.3d 199, 203 (1st Cir.
2006) (citations and internal quotation marks omitted) (emphasis in
original), and is "open to contradiction." Zarouite v. Gonzáles,
424 F.3d 60, 63 (1st Cir. 2005). Further, "abstract evidence of
generalized changes in country conditions, without more, cannot
rebut a presumption of a well-founded fear of future persecution."
Palma-Mazariegos, 428 F.3d at 35. On the other hand, where a
report demonstrates fundamental changes in the specific
than ideal clarity if the agency's path may reasonably be
discerned."
Id. (quoting Bowman Transp., Inc. v. Ark.-Best Freight
Sys., Inc.,
419 U.S. 281, 286 (1974) (internal citations omitted)).
-11-
circumstances that form the basis of a petitioner's presumptive
fear of future persecution, it "may be sufficient, in and of
itself," to rebut that presumption. Id. at 36 (emphasis added).
In the instant case, the profile of asylum claims details
at length the progression of Albania's political environment,
specifically as it relates to political asylum claims, which
constitute a "majority" of Albanian asylum cases. The report
states that "there have been no major outbreaks of political
violence since 1998,"10 and that "[t]hough serious political
repression existed in the past, there are no indications of
systemic political persecution in Albania at the present time."
The report also states that, as of 2004, there were no known cases
of "individuals in prison or detention for political reasons."
Finally, "there is no indication that the former Communists . . .
have sought retribution against opponents of the Communist regime
or the many individuals who have returned to Albania after having
fled abroad." Indeed, although "[i]n 2003, many countries
increased deportations of illegal Albanian residents, . . . [n]o
reports or evidence of any mistreatment of returnees at the hands
10
While Tota does allege that acts of persecution were perpetrated
against him after 1998, the report's proclamation that there have
been no major outbreaks during that time certainly cannot be read
to stand for the proposition that no politically motivated violence
occurred, which would call into question its applicability to
Tota's particular situation. We therefore see no reason why this
passage distinguishes Tota from other former DP members who would
face improved conditions upon a return to Albania.
-12-
of police or others have been received." These passages point
specifically to greatly improved conditions for those in Tota's
position -- individuals who suffered past persecution on political
grounds at the hands of members of the former Communist regime, and
who would be returning to Albania after having fled abroad. This
is sufficient, "in and of itself," Palma-Mazariegos, 428 F.3d at
36, to rebut Tota's presumptive well-founded fear of future
persecution.
For his part, Tota presents no specific contradictory
evidence, nor any other reasons why the changed conditions do not
apply to his individual situation. His attempts to discredit the
IJ's finding and the methods used to arrive at that finding are
unpersuasive.
To this end, Tota first takes issue with the IJ's
reference to a passage stating that "there are no indications that
the Socialist party either through its own organization or through
government authorities is engaged in a pattern of repression of
violent behavior against its opponents." Placing great emphasis on
the fact that this passage was taken from a section entitled "Since
1998," Tota argues that because his abuses took place between 1998
and 2000, the passage cannot logically support a finding of changed
country conditions after that time. This simply misreads the
passage as a whole. There is no indication that the title "Since
1998" intends to refer to the conditions contained within the time
-13-
frame as being static. Indeed, the very first line of the section
states that "Albania's human rights record has improved steadily
since 1997 when the Socialist Party came to power" (emphasis
added). The section also describes specific instances that show
significant reductions in politically-motivated violence and
arrests since 2000. The last "large-scale, but generally short-
term," arrests were made in conjunction with demonstrations and
riots by Democratic Party members in protest of the allegedly
rigged 2000 local elections. The elections of 2001-2003 were
"hotly contested," and yet "generally free of violence" and
unfolded without police interference. Outbreaks of violence were
isolated and generally limited to clashes between individual party
supporters, not initiated by the government or police force. As
for an indicator of future violence, the section states that "in
recent years, Albanians have been able to exercise freely their
right to change their government through democratic means. Such a
right necessarily includes the ability . . . to organize and
campaign broadly free from Government interference." We therefore
hold that the "Since 1998" section, standing alone, can logically
support the determination that there has been a fundamental shift
in circumstances related to Albania's political freedom since
Tota's last abusive incident in early 2000.
Tota next launches a broad-based attack on the
government's evidence and the IJ's consideration of the record as
-14-
a whole.11 His accusation that the IJ neglected to carry out his
official duty to properly weigh the evidence provided by both sides
is meritless. "[I]n the absence of clear evidence to the contrary,
courts presume that [government agencies] have properly discharged
their official duties." United States v. Armstrong, 517 U.S. 456,
464 (1996) (quoting United States v. Chemical Foundation, Inc.,
272
U.S. 1, 14-15 (1926)) (internal quotation marks omitted). Tota
provides absolutely no evidence that the IJ neglected to duly
review all of the evidence in the record before making his
decision.
In sum, we find that substantial evidence culled from the
State Department asylum claims report, specifically tailored to the
discussion of political persecution of DP members by the Socialist
government, supports the IJ's finding that the government met its
burden of rebutting Tota's presumptive well-founded fear of
11
Tota argues that "[w]hile the IJ theoretically could have
reviewed all of the evidence in the record and determined that the
substance of the 33 pages [submitted by the government] outweighed
the volume of the 500 [submitted by petitioner], he neglected to do
so." The government's evidence consisted of the aforementioned
2004 State Department Profile of Asylum Claims and a 2003 State
Department Country Report on Human Rights Practices. Much of
Tota's evidence consisted of State Department reports that either
predated or were identical to those submitted by the government.
Tota also submitted a lengthy article detailing violations of media
freedom and others detailing mistreatment of suspected criminals.
Neither issue is particularly relevant to an analysis of Tota's
particular situation. Finally, to the extent that the sheer volume
of evidence introduced into the record is a valid consideration,
Tota grossly overstates his case by double-counting many articles
entered into the record both directly and as appendices to his
original asylum application.
-15-
persecution. Tota has provided no direct evidence to refute the
IJ's finding, and his criticisms of the methods and reasoning used
by the IJ are unpersuasive. There is thus no basis to overturn the
IJ's denial of Tota's asylum claim.12
C. BIA's Summary Affirmance
Finally, Tota claims that the BIA violated its own
procedure by which it may affirm a decision of the IJ without
opinion. Under this procedure, the BIA may summarily affirm the
decision of an IJ if it determines that (i) the IJ's decision was
correct; (ii) any errors in the IJ's decision were either harmless
or nonmaterial; and (iii) either the issues on appeal are squarely
controlled by existing precedent, and do not involve application of
this precedent to a novel factual situation, or are not so
substantial that the case warrants the issuance of a written
opinion. 8 C.F.R. § 1003.1(e)(4).
Tota does not challenge the BIA's summary affirmance
procedure itself.13 Instead, he claims that the BIA misapplied its
own regulations by issuing a summary affirmance based on an
12
Because Tota's asylum claim fails, we need not evaluate his
claim under the more stringent standard for withholding of removal.
Albathani, 318 F.3d at 374.
13
We have repeatedly rejected such challenges because this Court
can review the IJ directly and remand to the BIA for further
adjudication as is warranted. See
Dhima, 416 F.3d at 96-97 (1st
Cir. 2005) ("although the summary affirmance does not give the
BIA's reasons, '[t]he courts will continue to have the IJ's
decision and the record upon which it is based available for
review.'") (quoting Albathani, 318 F.3d at 377-78).
-16-
incorrect result and upon errors of law and fact that were neither
harmless nor immaterial. This claim does not alter our initial
analysis. If the IJ does issue an erroneous decision, we will
remand to the BIA regardless of whether a petitioner challenges the
BIA's summary affirmance of that decision. If, on the other hand,
the IJ's decision is correct, and any errors are harmless and
nonmaterial, the BIA's summary affirmance procedure will not have
been misapplied. In the instant case, because we have found that
the IJ's decision is supported by substantial evidence, and that
the IJ did not make any harmful or material errors of fact or law,
Tota's claim fails. See, e.g., Ziu v. Gonzáles, 412 F.3d 202, 204
(1st Cir. 2005) (rejecting petitioner's challenge that the BIA
misapplied its summary affirmance procedure to an incorrect IJ
decision upon finding that the IJ's decision was not erroneous).
III. Conclusion
For the reasons stated above, we deny the petition for
review and affirm the decision of the IJ, and the summary
affirmance of the BIA.
Affirmed.
-17-
