                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-18-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3421




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      ___________

                                      No. 07-3421
                                      ___________

                                 ARTAN ISMAILANJI,
                                              Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                             Respondent
                    ____________________________________

                        On Petition for Review of an Order of the
                             Board of Immigration Appeals
                               (Agency No. A78 698 107)
                      Immigration Judge: Honorable Miriam Mills
                       ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)

                                   September 10, 2008

               Before: BARRY, SMITH and HARDIMAN, Circuit Judges

                           (Opinion filed: September 18, 2008)
                                      ___________

                                       OPINION
                                      ___________

PER CURIAM

       Artan Ismailanji petitions for review of a Board of Immigration Appeals (“BIA”)

decision dismissing his appeal of the denial of his applications for asylum, withholding of
removal, and relief under the Convention Against Torture (“CAT”). We will deny the

petition for review.

       Ismailanji is a native and citizen of Albania. He arrived in the United States in

1999 through the Visa Waiver Pilot Program using a fraudulent passport. The

Immigration and Naturalization Service referred the matter to the Immigration Court

pursuant to 8 C.F.R. § 208.2(b) to adjudicate his applications for asylum, withholding of

removal, and relief under the CAT.

       Ismailanji testified before an Immigration Judge in New York that he left Albania

because his life was in danger on account of his active membership in the Democratic

Party. Ismailanji testified that his first problem occurred on February 15, 1997, at a party

rally. Masked people arrived, and he and two others were taken away in a van, beaten,

and threatened over a 12-hour period. Ismailanji further testified that on June 18, 1997,

he helped organize a rally attended by approximately 1,000 people. He stood behind the

podium where the President of Albania spoke. According to Ismailanji, gangsters

affiliated with the Socialist Party arrived and fired guns. The local police fled, and the

national guard took the President away. The gangsters took him and four others, held

them for half a day, and then released them.

       Ismailanji also testified that on June 29, 1997, while working at the polls on

election day, masked men took him and another party member away. He was held for two

hours, and then thrown out of the car. Ismailanji then learned that the Socialist Party won



                                               2
the election. He stated that in July 1998 he was arrested at home, taken to a police

station, and beaten until he was unconscious. A policeman told him that he should not

participate in political activities. After his release, Ismailanji did not engage in any

political activities. Ismailanji stated that he had also received anonymous phone calls and

that people had shot at his house.

       Ismailanji left Albania in November 1998 and went to Bulgaria and Macedonia.

He sought asylum at the United States embassies apparently without success. Ismailanji

returned to Albania because he had no place to go. He received a letter from the

prosecutor’s office requiring that he appear in court for questioning related to recent

demonstrations. Ismailanji did not appear because he was afraid. He went to his aunt’s

house, where he stayed for five months. Ismailanji went back and forth between Albania

and other countries several times before arriving in the United States in July 1999.

       The Immigration Judge made an adverse credibility finding based on

inconsistencies between Ismailanji’s testimony and his asylum application regarding the

events that occurred on June 18, 1997. In his asylum application, Ismailanji stated that he

had attended a meeting at a Democratic Party family’s home, and that the President was

there. He stated that several cars circled the house, shot into the air, and many party

members were injured. The police came and fled with the President. The Immigration

Judge stated that Ismailanji did not testify that the events on this date occurred in a house,

but at a rally. Ismailanji also wrote in his application that there were eight hostages, but



                                               3
he testified that there were five.

       The Immigration Judge also noted that Ismailanji wrote that the masked men took

the hostages to an unknown destination, that the police rescued them with ground forces

and helicopters, that a police officer was killed, and that another was captured, tied up,

and burned alive. Ismailanji, however, testified that the captors simply released him and

the other hostages. The Immigration Judge found the references to ground forces and

helicopters implausible, and stated that the inconsistencies were so great that he could not

credit anything else Ismailanji had said. The Immigration Judge noted that the

inconsistency was the most outrageous he had seen in 14 years on the bench.

       Ismailanji appealed, and the BIA vacated the Immigration Judge’s decision and

remanded the case for further proceedings and a new decision. The BIA explained that,

although the Immigration Judge had accurately described the inconsistencies in the

evidence, the Immigration Judge did not allow Ismailanji to explain them.

       Ismailanji requested a change of venue, and an Immigration Judge in Philadelphia

(“IJ”) heard the matter on remand. Ismailanji explained that the inconsistencies were due

to the error of either the lawyer who prepared the asylum application or the translator.

Ismailanji stated that it appeared that one or the other had mixed together the events that

occurred in the town square with events that occurred later in the day at the house. The

IJ faulted Ismailanji for failing to get the notes that he had given his former attorney, and

concluded that the differences between the two versions were too stark to be attributable


                                              4
to a translation error. The IJ made an adverse credibility finding and concluded that

Ismailanji had not established past persecution.

       The parties also provided evidence of current country conditions in Albania, and

the IJ found Ismailanji not credible as to why he believed that he would still be in danger

if he returned to Albania given that the Democratic Party was then in power. Ismailanji

had stated that the threats were still valid, and that the Democratic and Socialist Parties

remained in a silent war. The IJ noted that Ismailanji provided no documentary evidence

to support his opinion, and that news articles established that the United States found the

shift in power to be a success for the democratic process. The IJ further noted that, even

before the elections, the 2004 Department of State Profile of Asylum Claims and Country

Conditions (“2004 Profile”) reported no major outbreaks of political violence since 1998,

and that the major political parties had not engaged in abuse or coercion against their

political opponents. Thus, the IJ concluded that Ismailanji did not have a well-founded

fear of harm based on his Democratic Party membership in light of the changed country

conditions.

       The BIA dismissed Ismailanji’s appeal. Assuming that Ismailanji was credible

and that he established past persecution, the BIA concluded that the IJ correctly found

that the presumption of a well-founded fear of persecution was rebutted based on a

fundamental change in circumstances in Albania since Ismailanji left the country. The

BIA noted that the Department of State Country Report, published in 2005, reflected that


                                              5
the Socialist and Democratic Parties were the two largest parties in Albania, and that the

Democratic Party was in power. The 2004 Profile noted that, although serious political

repression existed in the past, there were no indications of systemic political persecution,

or that the Socialist Party was engaged in a pattern of violent behavior against its

opponents. The BIA also decided that Ismailanji failed to meet the higher burden of

proof required for withholding of removal and CAT relief. This petition for review

followed.

       In his brief, Ismailanji primarily challenges the IJ’s adverse credibility finding.

The BIA, however, assumed that Ismailanji was credible, and that he established past

persecution. The BIA dismissed Ismailanji’s appeal on the ground that changed country

conditions rebut a presumption of a well-founded fear of future persecution. We will

address Ismailanji’s arguments to the extent they challenge this conclusion.

Ismailanji also contends that we must review the IJ’s decision because the BIA dismissed

his appeal without providing an independent analysis. This contention lacks merit. The

BIA’s decision reflects that the BIA did not adopt or defer to the IJ’s decision, and that it

provided its own analysis.

       Ismailanji asserts that the Government provided two documents to establish a

fundamental change in circumstances – the 2004 Profile and a 2005 news article on the

Albanian elections. Ismailanji argues that the news article simply reports that a new

government headed by the Democratic Party was sworn in, and does not address political


                                              6
violence. He also argues that the 2004 Profile predates the elections and only establishes

a slight decrease in documented political persecution. Ismailanji also contends that

insufficient weight was given to the 2004 U.S. Department of State Report, which

evidences persecution.

       There is substantial evidence in the record supporting the BIA’s conclusion that

Ismailanji does not have a well-founded fear of persecution due to changed country

conditions. As the BIA noted, not only is Ismailanji’s own political party in power, but

the 2004 Profile provides that there were no indications of systemic political persecution,

or that the Socialist Party was engaged in a pattern of violent behavior against its

opponents. Ismailanji has not identified any evidence compelling a contrary conclusion.

See Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001) (explaining that, under the

substantial evidence standard of review, the BIA’s findings must be upheld unless the

evidence not only supports a contrary conclusion, but compels it). The 2004 U.S.

Department of State Report reflects human rights abuses by the police, but these abuses

were not reported to be of a political nature. Ismailanji’s father provided a declaration in

2002 stating that people came to his home looking for Ismailanji after he left, and that he

was threatened in April 2000, but there was no evidence at Ismailanji’s 2005 hearing

suggesting that such threats were ongoing, and the 2004 Profile provides that there was

no indication that Socialist Party members engage in such behavior.

       Ismailanji also argues that, even if the Government established a fundamental


                                             7
change in circumstances, the regulations allow a grant of asylum based on a reasonable

probability of other serious harm. See 8 C.F.R. § 208.13(b)(1)(iii). Ismailanji asserts

that he established such a possibility based on his testimony that the Socialist Party

would continue to target him, and that the elections in Albania were superficial. This

argument, however, appears to be the same as his political persecution claim. We agree

with the Government that Ismailanji has not shown that he would suffer other serious

harm.

        Finally, Ismailanji argues that the IJ failed to adjudicate his applications for

withholding of removal and relief under the CAT. The IJ, however, denied “all relief”

based on her adverse credibility finding and finding of changed country conditions, and

ordered that Ismailanji’s request for asylum and withholding of removal, including under

the CAT, be denied. 11/19/05 IJ Dec. at 8. The BIA also rejected these claims.1

        Accordingly, we will deny the petition for review.




   1
      Although Ismailanji does not make the argument, the BIA erroneously reasoned that
it followed from his failure to show a well-founded fear for purposes of asylum that he
did not meet his burden of proof for purposes of protection under the CAT. See Zubeda
v. Ashcroft, 333 F.3d 463, 476 (3d Cir. 2003) (noting rejection of asylum claim does not
control analysis of claim for relief under the CAT). However, there is no evidence in the
record supporting a claim that Ismailanji will more likely than not be tortured in Albania.

                                               8
