Filed: Dec. 21, 2006
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 12-21-2006 Gjopalaj v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 05-5305 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Gjopalaj v. Atty Gen USA" (2006). 2006 Decisions. Paper 44. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/44 This decision is brought to you for free and open access by the Opinions
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 12-21-2006 Gjopalaj v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 05-5305 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Gjopalaj v. Atty Gen USA" (2006). 2006 Decisions. Paper 44. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/44 This decision is brought to you for free and open access by the Opinions ..
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Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
12-21-2006
Gjopalaj v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-5305
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"Gjopalaj v. Atty Gen USA" (2006). 2006 Decisions. Paper 44.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/44
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NOT PRECEDENTIAL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. 05-5305
____________
NIKOLLE GJOPALAJ,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________
No. 05-5306
____________
RAZIE GJOPALAJ,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________
No. 05-5307
____________
ALDO NIKOLL GJOPALAJ,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________
No. 05-5308
____________
DORINA GJOPALAJ,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________
On Petition for Review from
Orders of the Board of Immigration Appeals
(Board Nos. A79 554 383, A79 554 384, A79 554 386 and A79 554 385)
Immigration Judge Charles M. Honeyman
____________
Submitted Under Third Circuit LAR 34.1(a)
December 11, 2006
Before: FISHER and CHAGARES, Circuit Judges,
and BUCKWALTER,* District Judge.
(Filed: December 21, 2006)
____________
OPINION OF THE COURT
____________
*
The Honorable Ronald L. Buckwalter, United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
2
FISHER, Circuit Judge.
The Gjopalajs petition for review of a final order of the Board of Immigration
Appeals (“BIA”) dismissing their appeal from an Immigration Judge’s (“IJ”) denial of
asylum, withholding of removal under the Immigration and Nationality Act (“INA”)
§ 241(b)(3), and protection under Article III of the Convention Against Torture (“CAT”).
Because we find that the IJ’s decision was supported by substantial evidence, we will
deny the petition for review in part, and dismiss in part for lack of jurisdiction.
I.
As we write only for the parties, we will forgo a lengthy recitation of the factual
and legal background to this case. Nikolle, Razije, Dorina, and Aldo Gjopalaj are natives
and citizens of Albania who entered the United States in June 2003. After entry, they
were placed in “asylum only proceedings” because they attempted to enter under the Visa
Waiver Program (“VWP”) using fraudulent Italian passports. The Petitioners applied for
asylum, withholding of removal under INA § 241(b)(3), and protection under CAT.
During the proceedings, the Gjopalajs detailed their claimed grounds for asylum.
Nikolle was an officer in the Albanian army, who was dismissed, he claimed, because he
openly expressed opposition to the Democratic Party. In response to further questioning,
however, he said that he was dismissed for refusing to sign an amendment to depoliticize
the military.
3
After the Communist Party lost power in Albania in 1991, Nikolle was active in
the then-ruling Socialist Party. He became an official member of the Socialist Party in
1994, and was a member of the Party’s leadership in his town of Lezha from 1994 to
1996.
In 1994, he opened a restaurant in Lezha. According to his testimony, on the
second day of elections in 1996, his restaurant was destroyed. Nikolle believed that a
local businessman was involved in the incident because that businessman had threatened
him and his wife and later constructed a building where his restaurant had been. The
threats, however, came prior to the 1996 elections while the Socialist Party was still in
power.
After spending two years in Greece, the Gjopalajs returned to Albania in 1998
when the Socialist Party regained power. Nikolle testified that “it was known” upon their
return that he had left politics. In fact, the Socialist Party in Lezha asked Nikolle to be a
candidate for mayor, but he refused.
In October 1998, the family moved to England and applied for asylum there.
When their case was dismissed, they returned to Albania in May 2002.
On September 20, 2002, Nikolle had to travel out of town, and left his twelve-
year-old daughter Dorina with his brother. That day, Dorina testified that she was
standing outside of her school with several other children when a man approached and
said “I’m sorry to bother you, but your dad asked me to pick you up from school.” When
4
she attempted to walk away, he grabbed her from behind and pushed her into a car with
three other men. They blindfolded her and tied her hands. Dorina’s uncle arrived at the
school shortly after this happened, and learned of the kidnaping from the other children
gathered there. He chased down the car and rescued Dorina as the kidnapers fled by foot.
Dorina testified before the IJ that none of the men ever said her name or her father’s
name. When asked whether she appeared different than the other children at school, she
explained that she dressed better than other students and was “noticeable” because she
had lived in England. She also explained that her family had not reported the incident to
the police because they were often involved in criminal activity themselves.
To further support the Gjopalajs’ case, Nikolle submitted a newspaper article that
his brother in Albania had obtained for $500. It attempted to link Dorina’s kidnaping
with Nikolle’s political background. However, the article did not exist in the records of
the Library of Congress, even though it maintained copies of that particular periodical.
On September 27, 2004, the IJ denied the Gjopalajs’ applications for relief. He
found that the newspaper article submitted by Nikolle was more likely than not
fabrication, and that there was insufficient evidence to find that the events described by
the Gjopalajs were politically motivated. The BIA summarily affirmed the IJ’s decision
on November 7, 2005.1
1
Where the BIA adopts the opinion of the IJ, we review the IJ’s decision. See Gao
v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002).
5
II.
Under 8 U.S.C. § 1252(a)(1), we have jurisdiction over final orders of removal in
immigration proceedings. Here, however, the context is slightly different because the IJ’s
decision arose in an “asylum only proceeding” within the VWP. This program allows
aliens from certain countries to enter the United States for up to ninety days without a
visa. See 8 U.S.C. § 1187(a). In return, aliens admitted in such a manner waive their
right to challenge their removal except on the basis of asylum. See 8 U.S.C. § 1187(b).
They may also claim withholding of removal and protection under CAT. See 8 C.F.R.
§ 1208.2(c)(3).
Thus, by denying the Gjopalajs’ applications for asylum, withholding of removal,
and protection under CAT, the IJ rendered them subject to removal from the United
States. When the BIA affirmed the IJ’s decision, Petitioners essentially became subject to
a final order of removal tantamount to an alien ordered removed and denied relief in a
removal proceeding under 8 U.S.C. § 1229a. Because we agree with the Second and
Eleventh Circuits that “[t]here is nothing in the VWP statute to indicate that unsuccessful
VWP applicants should be treated differently [with respect to judicial review] than any
other inadmissible alien stopped at the border who has established sufficient credible fear
of persecution to be referred to an IJ for a hearing,” we exercise jurisdiction over this
petition for review. Nreka v. Attorney General, 408 F.3d 1361, 1367-68 (11th Cir. 2005);
Kanacevic v. INS,
448 F.3d 129, 135 (2d Cir. 2006); see also Conoco, Inc. v. Skinner, 970
6
F.2d 1206, 1214 (3d Cir. 1992) (noting that when a statute directs judicial review of a
particular type of agency action, our review should extend to actions that are
“tantamount” to those specified).
III.
We review the IJ’s determinations under the deferential substantial evidence
standard. Abdille v. Ashcroft, 242 F.3d 477, 483 (3d Cir. 2001). Under this standard, we
regard factual findings as “conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). That is, the IJ’s
“finding[s] must be upheld unless the evidence not only supports a contrary conclusion,
but compels it.”
Abdille, 242 F.3d at 483-84.
The Petitioners first argue that the IJ erred in finding they were not entitled to
asylum. The Attorney General has discretion to grant asylum to refugees who are unable
to return to their 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). Persecution involves “threats to
life, confinement, torture, and economic restrictions so severe that they constitute a threat
to life or freedom.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993). It only includes
actions that are “committed by the government or forces the government is either ‘unable
or unwilling’ to control.” Abdulrahman v. Ashcroft,
330 F.3d 587, 592 (3d Cir. 2003).
7
As to the asylum claim, we are unable to say that the evidence compels a decision
contrary to the one made by the IJ. Although the Petitioners endured several horrifying
and troubling incidents in Albania, there is no evidence that these happened “on account
of race, religion, nationality, membership in a particular social group, or political
opinion.” 8 U.S.C. § 1101(a)(42)(A). Both of the main incidents relied on by the
Gjopalajs appear to have been motivated by other factors. Nikolle himself testified that
he believed the destruction of his restaurant was accomplished by another businessman
who later built on the same location. And the IJ’s finding that Dorina was likely singled
out for kidnaping because she appeared to have more money than the other children is
entirely reasonable. Dorina herself testified that she was “noticeable” because she had
lived in England and wore nicer clothes than the other children at her school. Such
targeting cannot form the basis of a social group claim because “whatever the common
characteristic that defines the group, it must be one that the members of the group either
cannot change, or should not be required to change because it is fundamental to their
individual identities or consciences.” Fatin, 12 F.3d at 1239.
In addition, there is no evidence that the kidnaping was politically motivated.
Nikolle had left politics by the time it happened, and the IJ reasonably determined that the
newspaper article submitted by the Petitioners was more likely than not fabricated
because it was obtained for money and could not be found in the Library of Congress’s
holdings of the periodical in which it was allegedly published. In light of this record, we
8
cannot say that the IJ erred in determining that the Petitioners had not established past
persecution or a well-founded fear of future persecution in Albania.
The Gjopalajs next argue that the IJ erred in finding that they were not subject to
withholding of removal under INA § 241(b)(3). To prevail on such an application, an
alien must establish a “clear probability,” see INS v. Stevic, 467 U.S. 407, 429 (1984), that
his life or freedom would be threatened in the proposed country of removal “because of
the alien’s race, religion, nationality, membership in a particular social group or political
opinion.” 8 U.S.C. § 1231(b)(3)(A). Because this standard is more stringent than the
“well-founded fear of persecution” standard employed in the asylum context, we have
emphasized that an alien who fails to establish his eligibility for asylum “necessarily fails
to meet the standard of withholding of removal under INA § 241(b)(3).” Lukwago v.
Ashcroft,
329 F.3d 157, 182 (3d Cir. 2003).
Finally, the Gjopalajs argue that they are entitled to relief under Article III of CAT.
Such relief is appropriate when an alien can prove that he will be tortured in his home
country. 8 C.F.R. §§ 208.16 - 208.18. However, the Petitioners here did not raise this
claim in their appeal to the BIA. Consequently, we are without jurisdiction to address this
issue because we may only review a claim if “the alien has exhausted all remedies
available to the alien as of right.” 8 U.S.C. § 1252(d)(1).
9
IV.
For the foregoing reasons, we will deny the Petitioners’ application for review in
part, and dismiss in part for lack of jurisdiction.
10
