Filed: Jan. 23, 2006
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 1-23-2006 Caushi v. Atty Gen USA Precedential or Non-Precedential: Precedential Docket No. 04-4506 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Caushi v. Atty Gen USA" (2006). 2006 Decisions. Paper 1663. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1663 This decision is brought to you for free and open access by the Opinions of t
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 1-23-2006 Caushi v. Atty Gen USA Precedential or Non-Precedential: Precedential Docket No. 04-4506 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Caushi v. Atty Gen USA" (2006). 2006 Decisions. Paper 1663. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1663 This decision is brought to you for free and open access by the Opinions of th..
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Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
1-23-2006
Caushi v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 04-4506
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"Caushi v. Atty Gen USA" (2006). 2006 Decisions. Paper 1663.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1663
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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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 04-4506 & 05-3151
ROBERT CAUSHI,
Petitioner
v.
ATTORNEY GENERAL OF
THE UNITED STATES,
Respondent
On Appeal from an Order entered by
The Board of Immigration Appeals
No. A78-821-176
Submitted Under Third Circuit LAR 34.1(a)
November 15, 2005
Before: BARRY and AMBRO, Circuit Judges
POLLAK,* District Judge
(Filed January 23, 2006)
OPINION OF THE COURT
AMBRO, Circuit Judge
Robert Caushi petitions for review of a decision of the
Board of Immigration Appeals (“BIA”) denying his motion to
reopen and remand his case to the immigration judge (“IJ”) and
affirming the IJ’s decision denying his application for asylum
and withholding of removal as well as his request for relief
under the Convention Against Torture (“CAT”). Caushi also
petitions for review of a later BIA decision denying another
motion to reopen. These petitions have been consolidated for
review under Immigration and Nationality Act § 242(b)(6), 8
U.S.C. § 1252(b)(6) (“[A]ny review sought of a motion to
reopen or reconsider [an] order shall be consolidated with the
review of the order.”). For the reasons stated below, we grant
the first petition and deny the second.
*
Honorable Louis H. Pollak, United States District Judge
for the Eastern District of Pennsylvania, sitting by designation.
2
I. Facts and Procedural History
A. Background
Caushi is a young man who is a native and citizen of
Albania. He arrived in this country on September 19, 2000 and
admitted to an immigration inspector that he was using a fake
U.S. passport. In October 2000 the Immigration and
Naturalization Service (“INS”)1 served him with a notice to
appear for removal proceedings. Caushi conceded removability
on the basis of not having a valid entry document but applied for
asylum, withholding of removal, and relief under the CAT.
In his asylum application, Caushi asserted that he had
been a member of the youth movement of the Democratic Party
of Albania (“DP”), a political party that opposed the governing
Communist, and later Socialist, parties. He alleged that he had
been persecuted in Albania because of his political beliefs.
Specifically, he contended that he and his brother-in-law, Dritan
Azune, were arrested in May 1998 at a DP rally, and although
Caushi was released after a few hours, Azune was detained for
three days. Shortly after Azune was released from police
custody, he was shot to death by unknown assailants in front of
the police station. Caushi also alleged that on September 13,
1
As of March 1, 2003 the INS ceased to exist, and its
functions were transferred to the Department of Homeland
Security. See 6 U.S.C. § 271.
3
1998 he was “severely beaten” by police officers at a
demonstration in Tirana, Albania’s capital, while protesting the
assassination of a DP leader, during which he “broke a tooth and
sustained other injuries.” Caushi stated that he went into hiding
after this incident. He further stated that the police came to his
family’s house looking for him and pointed a gun at his father
when they learned he was not there. Caushi also stated that he
feared being tortured or killed in Albania on account of his
political activities.
B. Proceedings Before the Immigration Judge
Caushi appeared before an IJ in April 2002. He testified
that he was released from police custody in May 1998 because
the police could not verify that he was a member of the DP, but
that they knew his brother-in-law was a “high-profile” DP
member. With respect to the incident in September 1998,
Caushi testified that police started shooting at demonstrators
with machine guns and then beat him with a rubber club. He
stated he suffered numerous injuries as a result of this beating,
including a dislocated disc in his spine and several lacerations
on his body and arms that required stitches. Caushi went into
hiding in the northern town of Bajram Curri after police officers
came to his parents’ house, pointed a gun at his father, hit his
father on the head with a gun, and threatened to kill the family
if they did not say where Caushi was. He further stated that,
although his Albanian passport contains two visas indicating
travel to Macedonia and Bulgaria during the time he was
4
allegedly in Bajram Curri, those visas are fraudulent and were
obtained by his father to “show [the police] that I had left the
country and come back.”
Caushi next called his sister, Loreta Caushi, to testify.
Loreta, who also had an asylum application pending before the
immigration court, testified that Caushi and their father were
members of the DP, and that she was familiar with “the entire
story” of why her brother left Albania, beginning with his arrest
in May 1998. Loreta stated that their brother-in-law was
murdered a few days after Caushi was released from custody.
To her knowledge, Caushi fled to Bajram Curri after the May
1998 incident and attended a DP rally in Tirana in July 1998.
She also testified that “[t]he police came several times at our
home to look for [my] brother,” and on one occasion they “put
the machine gun on top of my father’s head.” She stated that the
police said that, if they did not find Caushi, they would kill the
family like they killed her brother-in-law. Regarding the
September 1998 rally, Loreta asserted that she was at the rally
with her brother but did not see him beaten by police. She did
state, however, that someone from the DP came to their house
and told them that her brother was hurt, “that he had cuts in his
body and his hand, and he had broken a tooth.” She testified
that the next time she saw her brother was when she came to the
United States.
Caushi also submitted a hospital report from Albania that
indicated he had been treated for contusions on the day of the
5
September 1998 demonstration and an affidavit from Dr.
Josephine Kerr, a licensed pediatrician and volunteer for
Doctors of the World, who stated that she examined Caushi and
noted several scars on his chest, elbow, knees, and shoulder, as
well as tenderness in his back. She also noted that Caushi
became “tearful and agitated” when describing the beatings he
allegedly suffered at the hands of the Albanian police. In
addition to clinical observations of Caushi’s condition, Dr.
Kerr’s report contained a lengthy account of his past history,
apparently based solely on his statements, and concluded with
an assessment that Caushi “has a real and valid fear of danger to
himself if he returns to Albania under the present government
rule.” Caushi also submitted photographs showing numerous
scars on his arms and chest.
Upon the close of evidence, the IJ proceeded to question
Caushi regarding the contents of two news articles the IJ
obtained from the Internet. The articles — one from CNN and
another from the BBC — recounted the violence surrounding
the September 13, 1998 demonstration of which Caushi was a
part, including a riot by the protesters and counterattacks by the
Albanian police and military. The IJ read portions of these
articles to Caushi and asked him if they adequately reflected the
events of that day, and Caushi responded yes. The IJ did not,
however, place the articles in the record.
On April 9, 2002 the IJ decided orally that Caushi was
not eligible for asylum, withholding of removal, or relief under
6
the CAT. The IJ found that, while Caushi belonged to the DP
youth movement, he was not a “full-blown member” and held no
leadership position. The IJ believed Caushi’s testimony that he
was arrested and briefly detained following the DP
demonstration in May 1998, and that he was injured during the
“extremely violent” DP demonstration in September 1998
(during which, the IJ found, both Albanian police and
demonstrators used force and “the government lost control of
the capital city of Tirana for at least a few days”). The IJ noted,
however, that the hospital report submitted by Caushi said
nothing about him having suffered cuts. The IJ also largely
discounted Dr. Kerr’s report because, although the doctor
“appear[ed] to be well intentioned,” her affidavit was mostly “a
recitation of the respondent’s claim, and even a plea for the truth
of the facts concerning the claim,” and her “ultimate medical
evaluation of the respondent appear[ed] . . . less credible
because of the seven pages of previous statement[s] by Dr. Kerr
concerning the respondent’s asylum claim, compared to one-
and-a-half pages of evaluation of the respondent’s medical
condition.” The IJ therefore concluded that, although Caushi
had scars on his chest, elbow, and knees, Dr. Kerr was in no
position to explain where they came from. The IJ also faulted
Dr. Kerr for reporting that the demonstration occurred on
September 14, 1998, when in fact it occurred on September 13.
As for Loreta Caushi’s testimony, the IJ found her “not
. . . at all credible.” The IJ commented that she appeared to have
“a selective memory” because “when she thought the answers to
7
certain questions would be helpful, she gave specific answers,
and other times, she did not answer questions accurately.” The
IJ did not give any examples in support of this conclusion. The
IJ further found that Caushi’s testimony that he had gone into
hiding in Bajram Curri was not credible because his Albanian
passport indicated trips to Macedonia and Bulgaria during that
time, and although Caushi testified that his father falsely placed
the visa stamps in his passport, he did not provide any indication
why his father would have done so. Finally, the IJ found that
Caushi’s father, “who had been a full-blown member of the
Democratic Party for many years,” remained in Albania and
there was no evidence that he suffered persecution as a result.
The IJ therefore concluded that the “isolated incidents” of
violence Caushi suffered did not amount to past persecution, and
there was no indication that he would be persecuted if he
returned to Albania. The IJ therefore denied his application for
asylum, withholding of removal, and relief under the CAT.
C. Proceedings Before the BIA
Caushi appealed to the BIA. He contended that the IJ
ignored the evidence that his brother-in-law and fellow DP
member, Dritan Azune, was murdered, and that “[t]he present
country conditions in Albania are dangerous and unstable”
because the Socialist Party remained in power. Caushi also
asserted that substantial evidence did not support the IJ’s
conclusion that his testimony regarding his injuries was
exaggerated, and that the IJ erred in concluding that the beatings
8
he sustained at the hands of police were simply a result of
aggressive policing in a riot situation and not persecution.
Caushi also faulted the IJ for relying on news reports from the
Internet that were not part of the record.
While his appeal was pending before the BIA, Caushi
filed a motion to reopen seeking a remand to the IJ in light of
newly uncovered evidence — to wit, that his sister Loreta had
been granted asylum in a separate proceeding after his
application was denied. Caushi contended that Loreta’s success
in obtaining asylum undercut the IJ’s determination that Loreta’s
testimony in his case was not credible.
The BIA denied petitioner’s motion to reopen on
November 8, 2004, and affirmed the IJ’s decision. The BIA
concluded that Caushi had not provided any evidence regarding
the basis on which Loreta was granted asylum, and therefore
there was no evidence that “the facts in [her] claim were similar
to his.” The BIA also held that the IJ’s underlying
determination that Caushi had failed to establish evidence of
persecution was supported by the record, stating that “the
detention and mistreatment of [Caushi] in the course of civil
disturbances in 1998 does not constitute past persecution on
account of political opinion.” Caushi petitioned our Court for
review of the BIA’s decision.
9
While his petition for review was pending, Caushi filed
another motion to reopen with the BIA. He contended that,
although there was no transcript of the IJ’s decision in Loreta’s
case, her asylum application revealed that her claims “stem[]
directly from [my] activities.” Caushi indicated that his sister
had been raped by the police who came to their home looking
for him, an incident Loreta had not revealed prior to his hearing
because she was ashamed and suffered from post-traumatic
stress disorder. Caushi contended that Loreta was granted
asylum due to her being “beaten and raped because the
authorities were unable to locate [me] at their home. Had [I]
been home, she would most likely have been left alone and [I]
would have been harmed or killed.” Caushi thus argued that the
rape and post-traumatic stress disorder, coupled with the fact
that another IJ found Loreta credible, constituted newly
available evidence that significantly undercut the IJ’s conclusion
in his case that Loreta had a “selective memory” and therefore
was not credible.
On June 1, 2005 the BIA denied as well this motion to
reopen. It stated that Loreta’s asylum application gave no
indication of the actual reasons why she was granted asylum. In
the absence of the IJ’s oral decision “or any other objective
evidence regarding the specifics of the basis of the Immigration
Judge’s grant of his sister’s asylum claim,” the BIA concluded
that it was unable to determine “whether there is a sufficient
nexus between the facts in [Caushi’s] case and the facts upon
which the Immigration Judge granted his sister asylum.”
10
Moreover, the BIA determined that the evidence of Loreta’s
rape and post-traumatic stress disorder was available to Caushi
at the time of his hearing because Loreta had been seeing a
psychotherapist for nearly four months and had disclosed the
relevant information to her doctor. It therefore concluded that
Loreta “could have raised the alleged fact that she was raped,
ashamed of her rape, and suffered from post-traumatic stress
disorder either before the Immigration Judge [in her brother’s
case] or in [his] Notice of Appeal [to the BIA].” Caushi
petitioned our Court for review of the BIA’s denial of this
motion to reopen. We consolidated Caushi’s petitions pursuant
to 8 U.S.C. § 1252(b)(6) .
D. Petitions for Review
Caushi’s petitions for review allege error on five
grounds. His first petition alleges that the BIA erred in finding
that substantial evidence supported the IJ’s determination that he
had not been persecuted or had a well-founded fear of
persecution, and that the BIA erred in not remanding his case to
the IJ in light of his sister’s subsequent success in gaining
asylum. His second petition (which largely subsumes the
second claim of error in his first petition) contends that the
BIA’s conclusion that he did not prove that Loreta’s asylum
claim was factually related to his own was error; that the BIA
further erred in holding that the evidence of Loreta’s rape was
available to Caushi prior to his hearing; and that, in any event,
the grant of asylum to Loreta and her post-traumatic stress
11
disorder are newly available evidence that contradict the IJ’s
conclusion that she was not credible. For the reasons stated
below, we grant the first petition and deny the second.2
II. Jurisdiction and Standard of Review
We have jurisdiction over Caushi’s petitions under 8
U.S.C. § 1252, which grants federal courts of appeals
jurisdiction to review final orders of the BIA. We review the
BIA’s affirmance of an IJ’s factual findings, including its
determination of whether an alien was subject to persecution or
has a well-founded fear of persecution, under a substantial
evidence standard. See, e.g., Shardar v. Ashcroft, 382 F.3d 318,
323 (3d Cir. 2004). The BIA’s affirmance of the IJ’s credibility
determinations is also reviewed under this standard. See Cao v.
Att’y Gen.,
407 F.3d 146, 152 (3d Cir. 2005) (“The credibility
determination, like all IJ factual findings, is subject to
substantial evidence review.”). In conducting this analysis we
consider the record as a whole and shall reverse only if “‘[a]
reasonable adjudicator would be compelled to conclude to the
contrary.’”
Shardar, 382 F.3d at 323 (quoting 8 U.S.C.
§ 1252(b)(4)(B)). We review the BIA’s denial of a motion to
reopen for abuse of discretion, Lu v. Ashcroft,
259 F.3d 127,
131 (3d Cir. 2001), and review its underlying factual
conclusions related to the motion for substantial evidence.
2
Caushi has not appealed the IJ’s denial of his request
for relief under the CAT.
12
Sevoian v. Ashcroft, 290 F.3d 166, 170 (3d Cir. 2002). The
BIA’s denial of a motion to reopen may only be reversed if it is
“arbitrary, irrational, or contrary to law.”
Id. at 174 (internal
quotation marks omitted).
III. First Petition for Review
We begin with Caushi’s first petition for review.3 In
deciding an alien’s asylum application, an IJ must consider the
complete record, analyzing the evidence both pro and con. See
Gao v. Ashcroft, 299 F.3d 266, 277 (3d Cir. 2002). Although
our review of an IJ’s credibility determinations is deferential,
“that deference is expressly conditioned on support in the
record, and [d]eference is not due where findings and
conclusions are based on inferences or presumptions that are not
reasonably grounded in the record.” Dia v. Ashcroft,
353 F.3d
228, 249 (3d Cir. 2003) (en banc) (citation and internal
quotation marks omitted; alteration in original). An IJ must
support his factual determinations with “specific, cogent”
reasons such that his conclusions “flow in a reasoned way from
the evidence of record and are [not] arbitrary and conjectural in
nature.”
Id. at 250. Failure to do so “does not pass muster
under the substantial evidence rubric.”
Id. at 254 (citing
Mulanga v. Ashcroft,
349 F.3d 123 (3d Cir. 2003)).
3
Insofar as Caushi’s first petition challenges the BIA’s
denial of his motion to reopen and remand, we address that issue
in Part IV below.
13
A. IJ’s Factual Conclusions Related to Persecution
We have several problems with the IJ’s factual
conclusions in this case. First, he found that the adverse
treatment Caushi claimed to have suffered did not amount to
past persecution and did not create a well-founded fear of future
persecution. In reaching this conclusion, the IJ did not even
mention the testimony that Caushi’s brother-in-law, with whom
Caushi was arrested at a DP rally in May 1998, was shot to
death in front of the police station minutes after being released
from custody, and the further testimony of Caushi and his sister
that police officers essentially claimed responsibility for the
murder when they raided the Caushis’ house looking for him.
The IJ also believed that Caushi had been beaten at the
September 1998 demonstration, but rejected his testimony that
he was also slashed because, despite the fact that Caushi’s arms
and torso are covered with scars, the report from the hospital in
Albania where he was taken following the beating did not
mention any cuts. The IJ did not address Caushi’s explanation
for this omission (i.e., that medical documents in Albania “are
not . . . very clear in what they state”) or his testimony that, in
any event, his cuts were treated by a private doctor at his sister’s
home and not at the hospital. See, e.g., Campos-Sanchez v.
INS, 164 F.3d 448, 450 (9th Cir. 1999) (requiring the BIA to
consider an alien’s explanations for any perceived
inconsistencies in his testimony before deciding upon the alien’s
credibility). The IJ also did not address the fact that Dr. Kerr
noted that Caushi had several “well healed” scars on his body
14
and prosthetic front teeth, even though both observations are
consistent with Caushi’s description of his injuries.4
We are also puzzled by the IJ’s finding that Caushi “did
nothing that would bring himself to the attention of the
authorities.” The IJ supported this conclusion by noting that
Caushi “was a member of the youth branch of the Democratic
Party, [and] was not a full-blown member.” The IJ’s finding is
at odds with his determination that Caushi’s father was an active
member of the DP and that Caushi was arrested in May 1998
because of his affiliation with that party. Moreover, the
conclusion is belied by the fact (unmentioned by the IJ) that
Caushi’s brother-in-law was a high-level DP member who was
murdered immediately after he was released from police
custody, and the unrebutted testimony of Caushi and his sister
4
Although we agree with the IJ’s decision to reject Dr.
Kerr’s inappropriate conclusions regarding Caushi’s factual
background, we do not believe this necessarily renders her
medical examination not credible, especially since Caushi
provided photographs of his scars so that the IJ could inspect the
physical evidence for himself. Also of concern is the great
weight the IJ gave to the fact that Dr. Kerr listed the date of the
September 1998 DP demonstration as September 14 rather than
September 13 in making his credibility determination. Dr.
Kerr’s error is, at most, a minor inconsistency that is irrelevant
to the substance of Caushi’s asylum claim, and therefore should
not form a basis for an adverse credibility determination. See
Berishaj v. Ashcroft, 378 F.3d 314, 323 (3d Cir. 2004).
15
that the police came to their house looking for him and assaulted
his family shortly after his participation in the September 1998
demonstration at which he was beaten. In short, the IJ’s
conclusion that Caushi was somehow unknown to the police
(despite the fact his family was well known and Caushi himself
had been arrested) is unsupported by the record.
We believe these omissions from the IJ’s factual
discussion are significant because the omitted evidence tends to
establish past persecution. We have defined persecution as
“threats to life, confinement, torture, and economic restrictions
so severe that they constitute a threat to life or freedom.” See Li
v. Att’y Gen., 400 F.3d 157, 167 (3d Cir. 2005) (citation and
internal quotation marks omitted). The conduct Caushi alleges
— the murder of his brother-in-law, the beating and alleged
slashing at the hands of police, the threats against his family,
and the violence, intimidation, and assassinations directed at the
DP — tends to establish a threat to life and freedom. The IJ’s
failure to give specific, cogent reasons for rejecting these
allegations in light of all of the record evidence falls
significantly short of the requirement that his factual findings be
supported by substantial evidence.
B. IJ’s Determination That Loreta Caushi Was Not Credible
Next, we consider the IJ’s determination that Caushi’s
sister Loreta was “not . . . at all credible” when she testified in
support of her brother’s allegations of persecution. The IJ’s
16
entire analysis of her testimony is as follows: “I did not find her
testimony at all credible. I thought that she had a selective
memory. When she thought the answers to certain questions
would be helpful, she gave specific answers, and other times,
she did not answer questions accurately.” The IJ did not point
to any specific instances in which Loreta gave inaccurate or
selective testimony; indeed, he did not provide any explanation
of how he arrived at this conclusion. As we stated above, it is
well established that an IJ must support his credibility
determinations with record evidence and provide “specific,
cogent” reasons for his conclusions sufficient to demonstrate
that they are not “arbitrary and conjectural in nature.” Dia, 353
F.3d at 250. By not citing a single instance in which Loreta’s
testimony was inaccurate or selective, the IJ did not satisfy this
standard.
Moreover, our review of Loreta’s testimony reveals very
few instances in which her statements were demonstrably
inaccurate, vague, or nonresponsive. For the most part, her
testimony was clear and consistent, and corroborated her
brother’s account. We note only three instances where the judge
expressed dissatisfaction with Loreta’s responsiveness:
[IJ, regarding the May 1998
demonstration:] Did you see Robert
and your brother-in-law being
arrested?
17
[Loreta:] No.
[IJ:] When Robert was
released, he told you he had been
arrested? Ms. Caushi, I’m sorry, I
just want you to answer the
questions as directly as possible.
When Robert was released, did he
tell you he had been arrested?
[Loreta:] Yes.
[IJ:] How long did he tell
you he had been detained?
[Loreta:] He told me he was
detained for like three hours.
...
[Loreta, regarding another
demonstration in July 1998:] I
remember that on the 4th of July,
my brother participated [i]n a rally
of the Democratic Party, and there
was an assassination from the
Socialist Party that day.
[IJ:] What year?
18
[Loreta:] ‘98. About 150
bullets were shot, and Azem
Hajdari [a DP leader] was there,
and the police shot over the people.
[IJ:] What was, what was the
date again?
[Loreta:] It was 4th of July.
[IJ:] July 4, 1998? Ms.
Caushi, you have to try to just
answer the question as directly as
possible. The incident you’re
talking about occurred on July 4,
1998, yes or no?
[Loreta:] Yes.
[IJ:] Was your brother hurt
on July 4, 1998, or arrested, your
brother, Robert?
[Loreta:] No, nothing
happened.
...
[IJ, regarding the police
19
search for Caushi at his family’s
house:] Did the police say why they
wanted to talk to your brother,
Robert? Yes or no.
[Loreta:] Yes.
[IJ:] What did they say?
Why did they say they wanted to
talk to Robert?
[Loreta:] Because the police
in Albania, they knew that my
brother was a member of the Youth
Forum for [the] Democratic Party,
and he support[ed] Azem Hajdari in
the Democratic Party, so they tried
the best they could to stop this, this
wave of new Democrats.
[IJ:] Is that what the police
said? Is that what they said when
they came to your house several
times?
[Loreta:] No, they didn’t say
that, but they said to my father that
we want your son.
20
[IJ:] Did they say, did they
say — listen to my words. Did they
say why they wanted to talk to your
brother?
[Loreta:] They never would
tell us the reason why they wanted
to talk to my brother, but I
remember them telling to my father
in front of me and my mother that if
you don’t tell us where your son is,
then we will find him and we will
kill him the same way we killed
your brother-in-law.
With respect to the exchanges related to the May and July
demonstrations, we are perplexed by the IJ’s apparent
displeasure with Loreta’s responses because the transcript
reveals that Loreta directly answered all of the IJ’s questions.
As for the exchange regarding the police officers’ search for
Caushi, we agree that Loreta did not directly answer the IJ’s
question, “Why did [the police] say they wanted to talk to
Robert?”, but rather gave her view of why the police were
interested in her brother. When the IJ repeated his question,
however, Loreta directly answered it and stated that the police
never said why they were looking for her brother. Especially
since Loreta was testifying via an interpreter, and therefore it is
unsurprising that some questions may have been misunderstood
21
and repetitions may have been necessary, we do not believe
Loreta’s failure to answer directly the IJ’s question on the first
try is sufficient for a reasonable adjudicator to conclude that she
was not credible.
The Government places particular reliance on another
exchange that occurred during cross-examination as evidence
that Loreta’s testimony was evasive and inaccurate:
[Government:] Do, do you
have an Albanian passport?
[Loreta:] Yes. That’s the
one I’ve traveled with.
[Government:] Okay. When
did you get it?
[Loreta:] It’s my passport.
[Government:] When did
you get it?
[Loreta:] My, my father
obtained the passport for me and
some, some relatives of my sister
managed to get the visa.
22
[Government:] One more
time. When did you get the
passport?
[Loreta:] The date I came
here, 9:00 in the morning, was the
day that I obtained the passport.
[Government:] How did you
get it?
[Loreta:] On June, June 5.
[Government, to the IJ:] I
don’t know how to ask these
questions any more simply.
[IJ, to Loreta:] Did you get
the Albanian passport while you
were here in the United States?
[Loreta:] In Albania.
[IJ:] Do you remember the
date that you got your Albanian
passport, what year?
[Loreta:] I don’t remember.
23
I’m sorry, I don’t remember.
[IJ:] You don’t remember —
[Loreta:] It’s [a] five-year
passport. It’s a five-year passport.
I don’t know when it expires.
[IJ:] I’m asking you when it
was issued, what year it was issued
to you, ‘98, ‘99, 2000, 2001; what
year was the passport issued to
you?
[Loreta:] It’s difficult to
remember when it was issued, ‘93,
‘94. I’m not sure.
We agree with the Government that Loreta’s responses
in this exchange were not initially responsive to the questions
asked. Nonetheless, Loreta answered the questions upon
rephrasing by the IJ. In any event, Loreta’s failure to recall the
precise date on which her passport was issued is, at best,
tangential to her brother’s asylum claim. We have stated that
“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. [Rather,] [t]he
discrepancies must involve the heart of the asylum claim.”
24
Berishaj v. Ashcroft, 378 F.3d 314, 323 (3d Cir. 2004) (citation
and internal quotation marks omitted).5 We are not persuaded
that Loreta’s failure to recall the date her passport was issued,
and her initial failure to answer directly the Government’s
questions regarding the passport, reveal anything about the
credibility of her testimony regarding her brother’s treatment.
C. Summary
We grant Caushi’s first petition for review, vacate the
BIA’s November 8, 2004 order insofar as it affirmed the IJ’s
oral decision, and remand this case to the BIA so that it can refer
the case to the IJ for further proceedings consistent with this
opinion. We base this decision on two sets of errors. First, the
IJ’s factual determinations related to Caushi’s eligibility for
asylum are not supported by substantial evidence. As noted, in
5
The REAL ID Act of 2005 changes the standards
governing credibility determinations, stating that such
determinations may be made “without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of the
applicant's claim.” Pub. L. 109-13, div. B, § 101(a)(3), 119 Stat.
231, 303 (to be codified at 8 U.S.C. § 1158(b)(1)(B)(iii)). We
note, however, that this provision only applies to aliens who
applied for asylum, withholding of removal, or other relief after
May 11, 2005, the effective date of the Act. See id. § 101(h)(2),
119 Stat. at 305. Since Caushi applied for asylum in January
2001, this provision is inapplicable to our review of his claim.
25
his oral decision the IJ never mentioned that Caushi’s brother-
in-law, a fellow member of the DP with whom Caushi was
arrested in May 1998, was murdered immediately after he was
released from police custody. In addition, although the IJ
believed Caushi’s testimony that he had been beaten by police
at a rally in September 1998, the IJ rejected his testimony that he
had been slashed despite the fact that Caushi’s arms and torso
are covered with scars and he has prosthetic front teeth, which
are consistent with Caushi’s description of his injuries. The IJ
relied on the fact that the report from the hospital in Albania
where Caushi was taken following the beating did not mention
any cuts, but the IJ did not mention Caushi’s explanation for this
omission (i.e., that medical documents in Albania “are not
. . . very clear in what they state”) or his testimony that, in any
event, his cuts were treated by a private doctor at his sister’s
home and not at the hospital. Moreover, the IJ’s conclusion that
Caushi “did nothing that would bring himself to the attention of
the authorities” because he “was a member of the youth branch
of the Democratic Party, [and] was not a full-blown member” is
unsupported by the record and, indeed, is contradicted by the
fact that his family was well known to the police because of
Caushi’s father’s and brother-in-law’s activities in the DP and
the fact that Caushi himself had been arrested.
Second, the IJ’s conclusion that Loreta Caushi’s
testimony at her brother’s hearing was selective and inaccurate
(and therefore not credible) is unsupported by any explanation
or citation to specific instances where her testimony was
26
deficient. Moreover, we cannot identify a single instance where
Loreta’s testimony about events at the heart of her brother’s
asylum claim was demonstrably inaccurate, selective, or evasive.
Thus, we conclude that the IJ’s adverse credibility determination
is not supported by substantial evidence.
We acknowledge, of course, that the record contains
some evidence that weighs against Caushi’s credibility (such as
the fact his parents remain in Albania or the inconsistency
between his alleged flight to Bajram Curri and the visa stamps
in his passport indicating travel to Macedonia and Bulgaria
during that time).6 We express no opinion on how this evidence
6
The Government places particular reliance on the U.S.
State Department Profile of Asylum Claims for Albania,
produced in May 2001 for use by the Executive Office of
Immigration Review. This report makes several broad
statements, including that “[t]here is virtually no evidence that
individuals are targeted for mistreatment on political grounds,”
“[t]here is no post-Communist tradition of retribution against
political leaders and few instances thereof,” and “[t]he
Government has neither the means nor the will to carry out
systematic persecution.” We note, however, that these
conclusions are at odds with the State Department’s 2000 and
2001 Country Reports for Albania (which we have described as
“the ‘most appropriate’ and ‘perhaps best resource’ on country
conditions,” Ambartsoumian v. Ashcroft, 388 F.3d 85, 89 (3d
Cir. 2004) (quoting Lal v. INS,
255 F.3d 998, 1023 (9th Cir.
2001))), which cite numerous allegations of violence and
27
should influence Caushi’s eligibility for asylum because such a
determination must be made by the immigration court in the first
instance. See INS v. Ventura, 537 U.S. 12, 16-17 (2002). On
remand, the IJ must carefully examine the complete record in a
manner consistent with this opinion and determine whether, on
balance, the evidence supports Caushi’s eligibility for asylum.7
intimidation directed at DP members that often went
uninvestigated and unpunished. We are not, therefore,
persuaded that the Asylum Profile is proof that Caushi’s claims
lack merit.
7
We also note that, although an IJ may introduce
evidence into the record, see Mulanga, 349 F.3d at 135 (quoting
In re S-M-J-, 21 I. & N. Dec. 722, 726 (B.I.A. 1997)), “[when]
the Immigration Judge relies on the country conditions in
adjudicating the alien’s case, the source of the Immigration
Judge's knowledge of the particular country must be made part
of the record,” S-M-J-, 21 I. & N. Dec. at 727. Here, the IJ
relied on Internet articles from CNN and the BBC as evidence
of the events that took place in Tirana on September 13, 1998.
Although the IJ may introduce evidence sua sponte, and
therefore the IJ’s reliance on these articles was not error, we
agree with Caushi that the IJ inappropriately neglected to place
the complete articles in the record. If, upon remand, the BIA
wishes to rely on these articles or any other evidence, such
evidence must be placed in the record.
28
IV. Second Petition for Review
We turn now to Caushi’s second petition for review, and
consider his first petition insofar as he contends that the BIA
erred in denying his motion to reopen and remand. A motion to
reopen may be denied if the BIA determines that: (1) the alien
has not established a prima facie case for the relief sought; (2)
the alien “has not introduced previously unavailable, material
evidence”; or (3) in the case of discretionary relief (such as
asylum), the alien would not be entitled to relief even if the
motion was granted. INS v. Abudu, 485 U.S. 94, 104-05
(1988);
Sevoian, 290 F.3d at 169-70; see also 8 C.F.R.
§ 1003.2(c)(1) (“A motion to reopen proceedings shall not be
granted unless it appears to the Board that evidence sought to be
offered is material and was not available and could not have
been discovered or presented at the former hearing . . . .”). The
BIA denied Caushi’s motions to reopen because he did not
prove a nexus between his claim and Loreta’s. The BIA also
denied the first motion because Caushi did not address the
reasons why the IJ in his case found Loreta not credible, and
denied the second motion because it did not present any
evidence that was not available to him at the time of his hearing.
We do not believe the BIA abused its discretion in
denying these motions. In his first motion to reopen, which
sought a remand to the IJ in light of Loreta’s subsequent success
in obtaining asylum, Caushi did not discuss any of the reasons
why Loreta was granted asylum and therefore failed to establish
29
that her subsequent case had any bearing on the IJ’s conclusion
in Caushi’s case that Loreta lacked credibility. Indeed, the only
evidence accompanying Caushi’s motion was an affidavit from
his attorney stating conclusorily that Loreta’s grant of asylum
“clearly contradicts the finding of the other Immigration Judge
who did not find her to be credible.” The motion offered no
evidence that Loreta obtained asylum based on the same
testimony she gave before the IJ in Caushi’s case; indeed, there
was no indication whatever that Loreta gained asylum for
reasons that were at all related to her brother’s claim. The BIA
rightly concluded that the mere fact Loreta was granted asylum
after testifying at her brother’s hearing was not, without more,
evidence that the IJ’s adverse credibility determination in her
brother’s case was erroneous.
Caushi attempted to remedy these defects in his second
motion to reopen. He attached several exhibits, including his
sister’s asylum application; an affidavit from his sister’s doctor
stating that Loreta has post-traumatic stress disorder; and an
affidavit from Loreta stating that she did not tell her brother
about the rape because she was “ashamed and traumatized,” and
did not testify about it at his hearing because she was not asked,
but was able to testify about it at her own asylum hearing and
was “now able to tell the entire story” and “would be more than
willing to testify on Robert’s behalf” if he was granted a new
hearing.
30
A. The Rape
First, Caushi contends that the police officers who came
to his family’s home looking for him raped Loreta, and this
tends to establish that he and his family have suffered past
persecution and have a well-founded fear of future persecution.
We note, however, that Caushi certainly knew about the rape
well in advance of his April 2002 hearing before the IJ. His
elder sister, Andoneta Zherka, submitted an affidavit in support
of his asylum application in December 2001 stating that Loreta
had been raped by a police officer who came looking for Caushi,
and Caushi himself mentioned in his testimony before the IJ that
he heard “from my youngest sister who got raped . . . that a lot
of things happened with my family.” The rape was therefore
known to Caushi at the time of his hearing and the BIA correctly
determined that the evidence “could . . . have been discovered
or presented at the former hearing,” 8 C.F.R. § 1003.2(c)(1), and
was therefore not properly raised in a motion to reopen.
B. Post-Traumatic Stress Disorder
Petitioner also contends that the diagnosis of Loreta’s
post-traumatic stress disorder is newly available evidence that
bears on the credibility of her testimony before the IJ in his case
— specifically, her “selective memory” — and therefore seeks
reopening so that the IJ may consider this new evidence. The
BIA rejected this argument, holding that Loreta’s doctor was
treating her for post-traumatic stress disorder at the time of her
31
brother’s hearing and therefore she could have discussed it in
her testimony. While we are skeptical of this reasoning
(primarily because there is no evidence that Caushi had any
reason to know of the private conversations between his sister
and her doctor), we have no cause to reach this issue. We have
already held that the IJ’s adverse credibility determination with
respect to Loreta’s testimony is not supported by substantial
evidence, and therefore Caushi has no need to introduce the
post-traumatic stress disorder diagnosis as an explanation for
Loreta’s supposed selective memory.
C. Subsequent Grant of Asylum
We also find it unnecessary to consider whether Caushi’s
case should be reopened so that Loreta’s asylum grant can be
considered by the IJ in assessing her credibility. Again, since
we have found that the IJ’s adverse credibility determination is
not supported by substantial evidence, we decline to address this
issue.
V. Conclusion
For the reasons stated above, we grant Caushi’s first
petition for review, vacate the BIA’s November 8, 2004 order
insofar as it affirmed the IJ’s oral decision, and remand this case
to the BIA with instructions to refer the case to the IJ for further
proceedings consistent with this opinion. We deny the second
petition for review.
32
