Filed: Apr. 15, 2005
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 4-15-2005 Bregu v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 04-1534 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "Bregu v. Atty Gen USA" (2005). 2005 Decisions. Paper 1353. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1353 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the United 2005 Decisions States Court of Appeals for the Third Circuit 4-15-2005 Bregu v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 04-1534 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "Bregu v. Atty Gen USA" (2005). 2005 Decisions. Paper 1353. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1353 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
4-15-2005
Bregu v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-1534
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005
Recommended Citation
"Bregu v. Atty Gen USA" (2005). 2005 Decisions. Paper 1353.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1353
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NOT PRECEDENTIAL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. 04-1534
SPIRO BREGU,
Petitioner
v.
ATTORNEY GENERAL
OF THE UNITED STATES
Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA No. A94-752-403)
Submitted Under Third Circuit LAR 34.1(a)
March 10, 2005
Before: NYGAARD, McKEE and RENDELL, Circuit Judges.
(Filed April 15, 2005)
OPINION OF THE COURT
RENDELL, Circuit Judge.
Appellant Spiro Bregu petitioned this Court for review of a decision by the Board
of Immigration Appeals (“BIA”) denying his application for political asylum, as well as
his claims for withholding of removal under the Immigration and Nationality Act (“INA”)
and protection under the Convention Against Torture (“CAT”). Our jurisdiction arises
under 8 U.S.C. § 1252(a). We will deny the petition for review.
I.
Bregu, a native of Albania, entered the United States without a valid entry
document in August of 2001. Within one year, he filed a written application for asylum
asserting that he had been persecuted by Albania’s Socialist Regime, who had seized
power from the Democratic Party following a large-scale financial collapse and ensuing
chaos over a span of months in 1997. Bregu first appeared before the Immigration Judge
(“IJ”) on October 29, 2002 and, through counsel, conceded that he was subject to
removal. He sought relief through asylum and withholding of removal.1
At a hearing regarding his claims for protection, Bregu testified before the IJ that:
1) he joined the Democratic Party in 1992 as a sympathizer; 2) at some point after the
Socialist Party took power in 1997, he had participated in a political demonstration,
during which he was attacked and beaten, requiring hospitalization for, among other
injuries, a broken elbow; 3) almost immediately after his release from the hospital, on
approximately September 17, 1998, he was arrested in his home by police, who held him
for two days and questioned him regarding the Democratic Party, but did not injure him;
1
Bregu did not assert a claim under the CAT before the IJ but, in rendering her opinion,
the IJ nevertheless addressed the issue, and Bregu now argues on appeal he is entitled to
its protection.
2
4) he commenced hiding with cousins in the town of Pontarit, where he remained for four
to five years, to ensure his safety; and 5) in May 1999 he learned that his brother had been
shot in the head while walking home – Bregu first stated before the IJ that he did not
know who the shooter was and the police failed to investigate and then later in his
testimony surmised that it must have been the socialists because the police had failed to
investigate. In addition, Bregu submitted as evidence a hospital certificate stating that he
had been admitted with a broken hand “for the period of time from March 15-30, 1997,”
as well as a certificate from the Korce police department attesting that Bregu had been
arrested for participating in a democratic inspired protest on September 14, 1998.
In an oral decision, the IJ denied Bregu’s asylum application based on a finding
that Bregu’s testimony was not credible – to the contrary, the IJ found his testimony to be
“completely incredible” and concluded that the case was “an invention.” May 14, 2003 IJ
Oral Op. at 10. The IJ was troubled by, and found Bregu lacked credibility based upon,
discrepancies between his asylum application and his hearing testimony. The IJ also
expressed disbelief as a result of the internal inconsistencies in Bregu’s own testimony as
well as between the oral testimony he gave and the documentary evidence he presented at
the hearing. Finally, the IJ noted that, even if deemed credible – as to the demonstration,
subsequent injuries, hospital stay and police detention – Bregu had not since encountered
any issues with the [Socialist Party] police. Id. at 11.
The BIA affirmed, concluding that “the Immigration Judge’s adverse credibility
3
finding is adequately supported by the record.” It agreed with the IJ that “[t]here were
significant inconsistencies on a number of issues, including dates the respondent was
allegedly in hiding and the dates of incidents of claimed persecution.” Feb. 12, 2004 BIA
Op. at 1. Bregu timely appealed to this Court.
II.
We have jurisdiction to review final orders of the BIA pursuant to 8 U.S.C. §
1252. The Attorney General may grant asylum to any alien who is unable or unwilling to
return to his or her home 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.” 8 U.S.C. § 1101(a)(42)(A). The burden to prove a
well-founded fear of persecution lies with the applicant, who must establish a genuine
fear of persecution and demonstrate that a reasonable person in the same circumstances
similarly would fear persecution.
An application for asylum also constitutes an application for withholding of
removal under INA § 241(b)(3)(A). See 8 C.F.R. § 1208.3(b) (2004). To establish
entitlement to this protection, an alien, such as Bregu, must show there exists a “clear
probability” that he will be persecuted on account of a specified ground, in this case his
ties to the Democratic Party, if returned to Albania. See Zubeda v. Ashcroft, 333 F.3d
463, 469 (3d Cir. 2003). This standard requires a showing that “it is more likely than not
that the alien would be subject to persecution” upon return to the alien’s home country.
4
INS v. Stevic, 467 U.S. 407, 424;
81 L. Ed. 2d 321;
104 S. Ct. 2489 (1984). Where an
alien is unable to demonstrate entitlement to asylum, he likewise cannot meet the stricter
standard required to secure withholding of removal. Lukwago v. Ashcroft,
329 F.3d 157,
182 (3d Cir. 2003).
To obtain relief under CAT, Bregu must establish “‘that it is more likely than not
that he . . . would be tortured if removed to the proposed country of removal.’” Sevoian
v. Ashcroft, 290 F.3d 166, 174-75 (3d Cir. 2002) (quoting 8 C.F.R. § 208.16(c)(2)).
Unlike establishing a “reasonable fear of persecution” for asylum, “the standard for relief
[under CAT] has no subjective component, but instead requires the alien to establish, by
objective evidence, that he is entitled to relief.”
Id. at 175 (citation and internal
quotations omitted). With respect to entitlement to all of these forms of relief, the
applicant’s own testimony may be sufficient to establish eligibility, so long as the
testimony is credible. See 8 C.F.R. § 208.13(a). Indeed, “[a]n alien’s credibility, by
itself, may satisfy his burden or doom his claim.” Dia v. Ashcroft,
353 F.3d 228, 247 (3d
Cir. 2003) (en banc).
Where, as here, the BIA issues a decision on the merits and not simply a summary
affirmance, we review the decision of the BIA, not the IJ. Gao v. Ashcroft, 299 F.3d 266,
271 (3d Cir. 2002). Whether or not Bregu has demonstrated past persecution or a
well-founded fear of future persecution is a factual question that we review under the
substantial evidence standard. We may reverse the BIA’s decision only if “any
5
reasonable adjudicator [would] be compelled to conclude to the contrary.” 8 U.S.C. §
1252(b)(4)(B). “Therefore, we must uphold the BIA’s factual findings if they are
‘supported by reasonable, substantial, and probative evidence on the record considered as
a whole.’” Zhen Hua Li v. Attorney General of the United States, 2005 U.S. App. LEXIS
4013, *9-10 (3d Cir. March 10, 2005) (quoting INS v. Elias-Zacarias,
502 U.S. 478, 481,
117 L. Ed. 2d 38,
112 S. Ct. 812 (1992)).
III.
The BIA found that the IJ’s adverse credibility determination was adequately
supported by the record due to “significant inconsistencies on a number of issues,
including dates the respondent was allegedly in hiding and the dates of incidents of
claimed persecution.” Feb. 12, 2004 BIA Op. at 1. As noted in the oral decision of the
IJ, part of the record before us, Bregu’s testimony regarding the dates and events
described above were inconsistent and conflicting on several fronts with the documents
he initially submitted in support of asylum. For example, on his asylum petition, he
failed to mention the five-year period that he allegedly spent hiding with his cousins on
account of his involvement with the Democratic Party before coming to America. The IJ
stated that his claim of need to hide did not fit with his other claims noting that Bregu
was “either exaggerating the number of years . . . or, in the alternative is lying about it
completely, or . . . does not provide a sensible chronology of the facts in his case.” May
14, 2003 IJ Oral Op. at 8.
6
In Zubeda v. Ashcroft, 333 F.3d 463, 476–77 (3d Cir. 2003), we observed that an
IJ should be cautious before placing too much weight on a discrepancy between an
asylum application and subsequent testimony. Caution is required in light of the
numerous factors that might make it difficult for an alien to articulate his circumstances,
including language difficulties. Even so, Bregu’s testimony is at odds in terms of both
substance and chronology with his prior statements. The IJ found that Bregu’s testimony
“is an invention and not worthy of belief” (May 14, 2003 IJ Oral Op. at 10), and the BIA
affirmed. Assuming the worst of the events alleged by Bregu to have occurred, he did not
offer credible evidence that the events were motivated by his own personal involvement
in the Democratic Party. Finally, the fact that he was able to live for several years in
Albania without incident undermines the likelihood of any persecution upon return.
Given Bregu’s failure to adequately explain inconsistencies in his testimony and
asylum application, and failure to offer credible evidence concerning the likelihood of
future persecution in Albania, we conclude that the BIA’s affirmance of the IJ’s adverse
credibility determination and denial of relief were based on substantial evidence.
For the reasons stated above, we will DENY the petition for review.
7
