Filed: Apr. 15, 2004
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 4-15-2004 Tahiraj-Datui v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 03-1060 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Tahiraj-Datui v. Atty Gen USA" (2004). 2004 Decisions. Paper 832. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/832 This decision is brought to you for free and open access by t
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 4-15-2004 Tahiraj-Datui v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 03-1060 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Tahiraj-Datui v. Atty Gen USA" (2004). 2004 Decisions. Paper 832. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/832 This decision is brought to you for free and open access by th..
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Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
4-15-2004
Tahiraj-Datui v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-1060
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Tahiraj-Datui v. Atty Gen USA" (2004). 2004 Decisions. Paper 832.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/832
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
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 03-1060
____________
ZAIM TAHIRAJ-DATUI;
MERITA TAHIRAJ-MAMO,
Petitioners
v.
JOHN ASHCROFT,
Attorney General of the United States,
Respondent
____________
On Petition for Review from an Order of the
Board of Immigration Appeals
(Board Nos. A76-821-259 and A76-821-263)
____________
Submitted Under Third Circuit LAR 34.1(a)
April 1, 2004
Before: ALITO, FISHER and ALDISERT, Circuit Judges.
(Filed: April 15, 2004)
____________
OPINION OF THE COURT
____________
FISHER, Circuit Judge.
Zaim Tahiraj-Datui (Datui) and his wife, Merita Tahiraj-Mamo (Mamo) (together
Petitioners), natives and citizens of Albania, petition for review of a final order of the
Board of Immigration Appeals affirming without opinion the Immigration Judge’s (IJ)
denial of their applications for asylum and withholding of removal pursuant to the
Immigration and Nationality Act (INA) and their petition for relief pursuant to the United
Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment (Convention). For the following reasons, we deny the petition for review.
I.
Petitioners base their claims for asylum and other relief on allegations that Mamo
was raped by armed assailants in her Albanian home on November 2, 1997, on account of
her and her family’s political opinion and that, consequently, they fear future persecution
upon return to Albania. Petitioners entered the United States on January 30, 1998, just
over a month after they were married in Albania. Petitioners were neither admitted nor
paroled, and the Immigration and Naturalization Service commenced removal
proceedings against them. Petitioners conceded their removability but filed applications
for asylum, withholding of removal and relief pursuant to the Convention.
The IJ denied Petitioners’ applications because he concluded that Petitioners had
failed to establish that the alleged past persecution, if it occurred at all,1 was related to the
1
The IJ did not believe Mamo’s claim that she had been raped.
2
political opinion held by Mamo and her family. Nor, the IJ concluded further, did
Petitioners demonstrate a well-founded fear of persecution on the basis of political
opinion in the event they returned to Albania. The IJ based his decision primarily on
Mamo’s lack of credibility, finding numerous inconsistencies among M amo’s testimony,
her asylum application and the police and hospital reports concerning the alleged rape
submitted by Petitioners. The IJ also expressed doubt concerning the credibility of the
alleged rape because while the physicians who examined Mamo immediately following
the rape conducted tests to determine whether there were any semen deposits, there was
no indication that any such deposits were in fact detected.
Driven by Mamo’s lack of credibility, the IJ searched for any corroborating
evidence that might independently support Petitioners’ claims. However, the few
documents submitted by Petitioners did not support Mamo’s testimony, but rather
diverged from it in many respects. The record contained no statements from other
eyewitnesses of the alleged rape – neither Mamo’s parents (who were present in the home
on the night of the alleged rape) nor Mamo’s uncle (who lived next door) supplied an
affidavit or testified at the hearing. Petitioners failed to produce documentation
evidencing their or M amo’s family’s membership in the Albanian Democratic Party
(ADP). And neither Datui2 nor any member of Mamo’s family living in Albania at the
2
Datui had ample opportunity to testify at the hearing.
3
time of the alleged rape testified at the hearing or supplied an affidavit concerning
affiliation with the ADP.
II.
We have jurisdiction to review these petitions under 8 U.S.C. § 1252(a). An IJ’s
“findings of fact are conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary.” Lukwago v. Ashcroft, 329 F.3d 157, 167 (3d Cir. 2003). Such
findings “must be upheld if ‘supported by reasonable, substantial, and probative evidence
on the record considered as a whole.’” Dia v. Ashcroft,
353 F.3d 228, 259 (3d Cir. 2003)
(en banc) (citation omitted). Substantial evidence “is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Senathirajah v. INS,
157 F.3d 210, 216 (3d Cir. 1998) (citation omitted). The substantial evidence standard
applies equally to adverse credibility findings, which should be “based on inconsistent
statements, contradictory evidence, and inherently improbable testimony ... in view of the
background evidence on country conditions.”
Dia, 353 F.3d at 259 (citation omitted).
The Attorney General has discretion to grant asylum to a deportable alien who is
deemed to be a “refugee” within the meaning of § 1101(a)(42)(A) of the INA. 8 U.S.C. §
1158(b). A “refugee” is:
any person who is outside any country of such person’s
nationality or, in the case of a person having no nationality, is
outside any country in which such person last habitually
resided, and who is unable or unwilling to return to, and who
is unable or unwilling to avail himself or herself of the
protection of, that country because of persecution or a well-
4
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).3
We affirm the IJ’s denial of Petitioners’ asylum application4 because there was
substantial evidence to support the IJ’s conclusion that Petitioners had not shown that
they had been persecuted or had a well-founded fear of being persecuted on account of
their political opinion. As noted above, the IJ based his decision primarily on Mamo’s
lack of credibility. The IJ’s adverse credibility determination as to Mamo’s testimony
concerning the political motives of her alleged assailants and the political persuasion of
she and her family was squarely and expressly predicated on the inconsistency between
Mamo’s testimony and her asylum application. Mamo’s testimony concerning comments
made by her assailants conflicted with her asylum application. Mamo testified at the IJ
hearing that the assailants made comments during their attack about the fact that she and
her family were members of the ADP, and that they were being attacked by Socialists, but
her asylum application contains no reference to any statements made by the assailants
3
Petitioners bear the burden of supporting their asylum claims with credible evidence.
Abdille v. Ashcroft, 242 F.3d 477, 482 (3d Cir. 2000).
4
Because the standards for prevailing on a withholding of removal claim and a request
for relief under the Convention are more stringent than the standard applicable to an
asylum application, denial of Petitioners’ asylum applications by definition compels
denial of Petitioners’ withholding of removal and Convention relief claims. See Zubeda
v. Ashcroft, 333 F.3d 463, 469-70 (3d Cir. 2003).
5
concerning the family’s political opinion, and in fact indicates that Mamo was not sure
who the assailants were.
The IJ’s adverse credibility finding is also supported by the prevailing conditions
in Albania at the time of the alleged rape. According to the State Department, while
general lawlessness and lax law enforcement characterized Albania in 1997, such
conditions rarely included violence targeted at individuals on political grounds. See
Profile of Asylum Claims and Country Conditions for Albania, United States Department
of State, September 1997.
Finally, the IJ’s adverse credibility determination is further supported by the
absence of additional evidence supporting Datui’s, Mamo’s, or Mamo’s family’s
membership in the ADP. Petitioners produced no documentation indicating any such
affiliation with the ADP, and neither Datui nor Mamo’s family testified or supplied an
affidavit concerning their affiliation with the ADP. 5
5
Petitioners seek to introduce as evidence for the first time an affidavit executed by
Datui which purports to demonstrate his close affiliation with the ADP. Of course, we
cannot consider evidence not contained in the record. Werner v. Werner, 267 F.3d 288,
294-95 (3d Cir. 2001) (citation omitted).
6
III.
The IJ’s denial of Petitioners’ applications for asylum, withholding of removal and
Convention relief was supported by substantial record evidence. Accordingly, the
Petition for Review is denied.
________________________
7
