Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-10-2005

Mati v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2964




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 04-2964


                                   FLORIAN MATI,
                                             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. A78-573-610)


                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  May 24, 2005
        Before: SCIRICA, Chief Judge, ALITO and RENDELL, Circuit Judges

                                 (Filed: June 10, 2005)


                              OPINION OF THE COURT


SCIRICA, Chief Judge.

      Florian Mati, an Albanian citizen who gained admission to the United States with

false documents, is appealing the order of an immigration judge removing him to Albania.
The judge rejected Mati’s application for asylum and his request for withholding of

removal. The Board of Immigration Appeals dismissed Mati’s appeal. The BIA had

jurisdiction under 8 C.F.R. § 1003.1(b)(3). We have jurisdiction under 8 U.S.C. § 1252.

                                       I. Background

       On February 19, 2001, Mati used a false passport to enter the United States. In

July 2002, the Immigration and Naturalization Service 1 initiated removal proceedings

against Mati as an alien who had gained admission to the United States by fraud or

misrepresentation. Mati admitted the charges, but he filed an application for asylum,

withholding of removal, and protection under the Convention Against Torture.

       Mati contends that despite the fall of Communism in the early 1990s, he continues

to suffer persecution at the hands of the ruling party.2 Mati testified to two instances of

physical abuse by the police, one in September 1999 and one in November 2000. He

contends these followed his taking part in political protests and speaking out against the

government. Mati did not go to a hospital or doctor for treatment. Nonetheless, he said

he left the country out of fear of persecution, feeling that his life was in danger. We note

that Mati’s parents, sister, and brother now all live in the United States.



   1
   Beginning on March 1, 2003, INS became a part of the Department of Homeland
Security pursuant to Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135
(Nov. 25, 2002).
   2
    Mati contends the government is controlled by Socialist and Communist leaders, but
the Department of State reports that the government is a coalition government of several
parties. The issue is not material to this appeal.

                                              2
       The immigration judge denied Mati’s petition for asylum as untimely, and found

Mati’s claims of emotional trauma insufficient to constitute changed or extraordinary

circumstances to excuse the late filing. With respect to the withholding of removal, the

judge noted several inconsistencies in Mati’s testimony, as well as in the supporting

testimony of Mati’s brother. The judge found Mati’s testimony not credible, particularly

in light of a Department of State report that found no evidence of political persecution in

Albania. Mati provided no evidence beyond his direct testimony to dispute the

Department of State report. In addition, the judge found that even if Mati’s testimony had

been credible, the events he described did not meet the burden of proof for withholding

removal. The BIA agreed that Mati’s application for asylum was not timely and adopted

the immigration judge’s decision denying withholding of removal.

       On appeal, Mati contends the immigration judge erred in relying on the

Department of State report and rejecting Mati’s claims of persecution as not credible. He

contends that the BIA erred in adopting the immigration judge’s decision based on these

findings. We will affirm.

                                      II. Discussion

       Because the BIA adopted the immigration judge’s decision on the issue of

withholding removal, we review the immigration judge’s order on that issue. See

Abdulrahman v. Ashcroft, 

, 591 (3d Cir. 2003); Chen Yun Gao v. Ashcroft,




                                             3


, 271 (3d Cir. 2002).3 We will affirm the order of removal. The record

supports the judge’s findings that Mati failed to prove a well-founded fear of persecution,

and that Mati’s testimony was not credible.

A. Evidence of Persecution

       In order to obtain judicial reversal of the BIA’s determination, Mati “must show

that the evidence he presented was so compelling that no reasonable factfinder could fail

to find the requisite fear of persecution.” INS v. Elias-Zacarias, 

, 483-84

(1992). This deferential test is now codified in 8 U.S.C. § 1252(b)(4)(B). See also Dia v.

Ashcroft, 

, 247-48 (3d Cir. 2003); Chen Yun 

(3d Cir.

2002) (“Aliens have the burden of supporting their asylum claims through credible

testimony. . . . Whether an asylum applicant has demonstrated past persecution or a well-

founded fear of future persecution is a factual determination reviewed under the

substantial evidence standard.”).




   3
     We will not review the BIA’s holding that Mati’s untimely asylum application renders
him ineligible for asylum, on the grounds of waiver and lack of jurisdiction. “An issue is
waived unless a party raises it in its opening brief.” Laborers’ Int’l Union of N. Am. v.
Foster Wheeler Corp., 

, 398 (3d Cir. 1994). Mati failed to raise a challenge
to this holding in his opening brief. Furthermore, the Immigration and Naturalization Act
states that no court has jurisdiction to review any determination regarding whether
conditions exist to toll the asylum application deadline. 8 U.S.C. § 1158(a)(3); see also
Tarrawally v. Ashcroft, 

, 185 (3d Cir. 2003). In addition, the immigration
judge found no evidence entitling Mati to protection under the Convention Against
Torture. Because Mati does not raise an appeal to this finding in his brief, this issue is
also not before the Court.

                                              4
       An alien may not be removed to a country where his life or freedom would be

threatened. 8 U.S.C. 1231(b)(3); INS v. Cardoza-Fonseca, 

, 429 (1987).

The immigration judge found that Mati had not provided sufficient evidence to support a

legitimate threat to life or freedom. The Department of State report of country conditions,

while not dispositive in the face of contrary evidence, directly contradicts Mati’s claims

of ongoing political persecution. Mati did not submit any evidence to rebut the direct

assertions of this report beyond his personal account of two beatings. Testimony from

Mati’s brother, who recently traveled to Albania and who shares Mati’s opposition

viewpoints, revealed no similar fears. Without any additional evidence to support his

claims, Mati did not meet the required burden of proof. He has not shown that “no

reasonable factfinder could fail to find the requisite fear of persecution.” 

(1992).

B. Credibility

       “[A]dverse credibility determinations are reviewed for substantial evidence. . . .

[T]he Board’s adverse credibility determination must be upheld on review unless ‘any

reasonable adjudicator would be compelled to conclude to the contrary.’” Chen Yun 

(3d Cir. 2002) (quoting 8 U.S.C. §1252(b)(4)(B)); see also

Balasubramanrim v. INS, 

, 161 (3d Cir. 1998). However, minor

inconsistencies and minor admissions that “reveal nothing about an asylum applicant’s

fear for his safety are not an adequate basis for an adverse credibility finding.” Chen Yun



                                             5


(3d Cir. 2002) (quoting Vilorio-Lopez v. INS, 

, 1142

(9th Cir. 1988)); see also Senathirajah v. INS, 

, 221 (3d Cir. 1998).

       The immigration judge identified several inconsistencies and false assertions in

Mati’s testimony that went to the heart of Mati’s alleged fears. Many of these were

directly related to the details of the incidents of persecution to which Mati testified. The

testimony of Mati’s brother further raised doubt as to the credibility of Mati’s fear. The

immigration judge also pointed to the sharp divergence between the Department of State

reports on Albania and Mati’s vague and non-specific testimony to the contrary. This

Court has held that Department of State reports are “objective evidence” of country

conditions and are appropriate resources for immigration judges to use in evaluating such

conditions. Ambartsoumian v. Ashcroft, 

, 89 (3d Cir. 2004). Mati presented

no additional evidence to explain the contrast between the report and his testimony, or to

otherwise rebut the content of the report. As such, a reasonable adjudicator would not be

compelled to conclude that Mati’s testimony was credible; there is substantial evidence in

the record to support the judge’s finding to the contrary.

                                      III. Conclusion

       For the foregoing reasons, we will affirm the decision of the Board of Immigration

Appeals.




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