Filed: Dec. 27, 2004
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 12-27-2004 Hoxholli v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 03-4617 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Hoxholli v. Atty Gen USA" (2004). 2004 Decisions. Paper 34. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/34 This decision is brought to you for free and open access by the Opinions
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 12-27-2004 Hoxholli v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 03-4617 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Hoxholli v. Atty Gen USA" (2004). 2004 Decisions. Paper 34. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/34 This decision is brought to you for free and open access by the Opinions ..
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Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
12-27-2004
Hoxholli v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-4617
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Hoxholli v. Atty Gen USA" (2004). 2004 Decisions. Paper 34.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/34
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NOT PRECEDENTIAL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. 03-4617
AFERDITA HOXHOLLI,
Petitioner
v.
JOHN ASHCROFT, ATTORNEY GENERAL
OF THE UNITED STATES,
Respondent
On Petition for Review of a Final Order
of the Board of Immigration Appeals
(No. A79-325-565)
Submitted Under Third Circuit LAR 34.1(a)
December 13, 2004
Before: AMBRO, VAN ANTWERPEN and STAPLETON, Circuit Judges
(Opinion filed: December 27, 2004)
OPINION
AM BRO, Circuit Judge
Aferdita Hoxholli appeals the affirmance by the Board of Immigration Appeals
(“BIA”) of the decision by an Immigration Judge (“IJ”) denying her application for
asylum and withholding of removal. Hoxholli is a citizen of Albania who entered the
United States with a visitor visa on September 24, 2000. She overstayed her visa and, on
October 30, 2001, the Immigration and Naturalization Service (“INS”)1 charged her with
removal under Immigration and Nationality Act (“INA”) § 237(a)(1)(B), 8 U.S.C. §
1227(a)(1)(B). Hoxholli conceded removability and sought relief in the form of asylum
and withholding of removal.2 The IJ denied both claims in an oral decision. Hoxholli
appealed to the BIA, which affirmed without opinion the IJ’s decision.
We have jurisdiction to review Hoxholli’s petition for review under INA § 242, 8
U.S.C. § 1252. Where, as here, the BIA summarily affirms the IJ’s decision, we review
that decision. Dia v. Ashcroft,
353 F.3d 228, 245 (3d Cir. 2003) (en banc). For the
reasons given, we deny Hoxholli’s petition.
Factual History
Hoxholli testified before the IJ as follows. In 1992 she became a supporter of the
Democratic Party (“DP”) in Albania and began attending meetings with her brothers.
1
On March 1, 2003, the INS ceased to exist as an agency within the Department of
Justice and the INS's functions were transferred to the Department of Homeland Security.
See Homeland Security Act of 2002, Pub. L. No. 107-296 §§ 441, 451 & 471, 116 Stat.
2135.
2
Hoxholli also applied for relief under the Convention Against Torture (United
Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, implemented in the United States by the
Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, § 2242, 112
Stat. 2681-761 (codified at 8 U.S.C. § 1231)), but later dropped that claim.
2
The DP, under the leadership of Sali Berisha, was in power in Albania from 1992 to
1997. Hoxholli became a formal dues paying member of the DP in May 1998, after the
Socialists took back power from the DP.
In the beginning of 2000, Hoxholli and one of her brothers (two brothers, Artori
and Florenci, were involved with her DP activities) received two anonymous letters
threatening harm if they continued to support the DP. In February 2000 anonymous
callers three times threatened to destroy their family unless Hoxholli and her brothers
ceased their DP activities. In June 2000 she was arrested at a DP protest. She was
detained for seven hours and interrogated by a police inspector. When Hoxholli replied
to a question that she wanted democracy in Albania, the inspector grabbed her by the
hair, hit her in the face, and demanded to know “Why should a woman be involved in
politics? Why are you doing this?” Before the officers released her, they threatened that
she would be physically harmed if she continued to support the DP.
Following this interrogation, the store where she worked as a seamstress was
bombed. She reported the bombing to the police, who told her that they would not help,
and that she should go to DP leader Berisha if she needed help.
After the police refused to help her, Hoxholli left to hide with her mother’s family
in the city of Dures, Albania. She returned to Tirana only to arrange her trip out of
Albania–she obtained a visitor visa at the U.S. Consulate and left for the United States on
September 24, 2000.
3
Discussion
Section 208(b) of the INA, 8 U.S.C. § 1158(b), confers on the Attorney General
the discretion to grant asylum to an alien who is a “refugee.” An individual qualifies as a
refugee if he or she is “unable or unwilling” to return to his or her country “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.” INA § 101(a)(42)(A), 8
U.S.C. § 1101(a)(42)(A).
An applicant bears the burden of proving eligibility for asylum based on specific
facts and credible testimony. 8 C.F.R. § 208.13(a); Abdille v. Ashcroft,
242 F.3d 477, 482
(3d Cir. 2001). In order to demonstrate a well-founded fear of persecution, an applicant
must satisfy three requirements: (1) he or she has a fear of persecution in his or her native
country; (2) there is a reasonable possibility that he or she will be persecuted upon return
to that country; and (3) the applicant is unwilling to return to that country as a result of his
or her fear. 8 C.F.R. § 208.13(b)(2)(i). An alien who establishes past persecution is
presumed to have a well-founded fear of future persecution. 8 C.F.R. § 208.13(b)(1).
The eligibility threshold for withholding of removal is higher than for asylum.
The Attorney General must determine that repatriation would jeopardize the alien’s life
or freedom on account of one of the protected grounds. INA § 241(b)(3), 8 U.S.C.
§ 1231(b)(3). The applicant must therefore demonstrate a clear probability of
persecution. Senathirajah v. INS,
157 F.3d 210, 215 (3d Cir. 1998). Given this higher
4
standard, an applicant who does not qualify for asylum also will not qualify for
withholding of removal.
We will uphold factual findings in an immigration matter 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
reverse a determination of the BIA/IJ if “the evidence not only supports [a contrary]
conclusion, but compels it.”
Id. at 481 n.1 (emphasis omitted). Adverse credibility
determinations are reviewed as well for substantial evidence, Balasubramanrim v. INS,
143 F.3d 157, 161 (3d Cir. 1998), and we will uphold those findings unless “any
reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B).
The IJ did not find Hoxholli’s testimony credible. Among the examples pointed
out were the following:
• The IJ stated that Hoxholli “claims that the only time she came back from Dures
after she left was when she came to the airport [in Tirana].” The IJ then pointed
out that “yet, we have a visa that was issued at the American Consulate [in Tirana]
on September 8th, 2000.” The IJ then concluded: “[I]f the only time she ever
appeared in Tirana was to leave at the airport on September 24th, how could she be
at the American Consulate [on September 8th] getting the visa[?] I think the
answer is she never left Tirana and never went to Dures.” W hile the IJ erred in
stating that Hoxholli claimed that the only time she came back to Tirana from
Dures was to leave from the airport on September 24th, there is support for the IJ’s
conclusion that Hoxholli’s claim that she fled to Dures was untrue. First,
Hoxholli’s testimony that she fled to Dures contradicted her previous testimony
that she had lived in Tirana continuously from 1994 until she left for the United
States. Second, Hoxholli’s I-589 asylum application does not mention Dures.
5
• The IJ disbelieved Hoxholli’s assertion that she did not have to answer any
questions at the United States border about her reasons for or the intended duration
of her visit.
• The IJ disbelieved Hoxholli’s assertion that she was active in the DP in 1992 but
did not actually join the party until 1998. The IJ’s reasoning that a DP activist and
campaign worker would be an official DP member is not unreasonable.
• Hoxholli testified that she paid monthly membership dues to the DP in 2000 from
January until she left. When confronted with the fact that her DP membership card
was paid through December 2000, when she had been in the United States since
September 2000, she arguably changed her testimony when she claimed that her
brother paid her dues through December.
• Hoxholli’s brother Artori did not testify. Hoxholli initially claimed that he did not
testify because he was not present in Albania when the alleged events happened.
However, Hoxholli changed her testimony and claimed that he was ill when the IJ
asked her why her brother could not testify as to his knowledge of her DP
membership.
• The IJ observed that Hoxholli was “shifty,” “not responsive,” and that she
repeatedly changed her testimony. We defer to the IJ’s finding that Hoxholli’s
demeanor indicated that her testimony was not credible.
The IJ also based in part the denial of Hoxholli’s asylum application on her failure
to corroborate her testimony. Hoxholli offered reports from the State Department3 and
3
Hoxholli argues that the IJ should have addressed the 2001 State Department
Country Report for Albania in his decision. The Country Report states that police
harassed some DP members and allegedly killed one DP member. It also states that some
DP members were terminated from their official positions for political reasons. But
because we affirm the IJ’s finding that Hoxholli’s story is not credible, the Country
Report would only be relevant if it described a systematic government-based pattern or
practice of persecution, or persecutions condoned by the government, so severe that an
Albanian would have a well-founded fear of future persecution simply by being a
member of the DP. It does not.
6
human rights groups describing the general situation in Albania. She offered certificates
attesting that she is a member of activist groups involving formerly persecuted
individuals. But other than her DP identification card, Hoxholli offered no
documentation from the DP to corroborate her claims. She did not submit any of the
threatening letters she allegedly received. She also offered no photographs, reports, or
documents to verify that the store where she worked was bombed.
Furthermore, Hoxholli had members of her immediate family who could have
given corroborating testimony, yet she failed to call them as witnesses. As noted,
Hoxholli has two brothers who were also DP members. Artori, who lived in Patterson,
New Jersey, close to the hearing site, did not testify. As already noted, Hoxholli initially
claimed that he did not testify because he was not present in Albania when the alleged
events happened. However, she changed her testimony and claimed that Artori was not
feeling well when the IJ asked her why he could not testify as to his knowledge of her
DP membership. Florenci, who was in the Dominican Republic when Hoxholli’s case
was heard, had allegedly been arrested once in Albania. Hoxholli offered no affidavits or
letters from Florenci into evidence.
Hoxholli testified that her parents knew of the incidents about which she testified,
and her parents were in the same building as Hoxholli’s asylum hearing on the day of the
hearing, yet they did not testify. When asked why she did not offer their testimony,
Hoxholli said that it was because they were not present when she was arrested.
7
* * * * *
As there is nothing in the record that compels us to conclude that the IJ’s decision
to deny asylum and withholding of removal was incorrect, we deny the petition for
review.
8