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


5-11-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1133




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                                                  NOT PRECEDENTIAL


                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                ____________________

                                     NO. 04-1133
                                ____________________


                                   AGIM DRISHTI,
                                         Petitioner

                                             v.

                  ALBERTO GONZALES, ATTORNEY GENERAL
                    OF THE UNITED STATES OF AMERICA
                          ______________________


                         On Petition for Review of Order of the
                            Board of Immigration Appeals
                              (Board No. A79-305-487)
                              ______________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 18, 2005
                Before: ROTH, FUENTES and BECKER, Circuit Judges

                                 (Filed: May 11, 2005)

                             ________________________

                              OPINION OF THE COURT
                             ________________________

BECKER, Circuit Judge.
    Agim Drishti, a native and citizen of Albania, petitions for review of the decision

of the Board of Immigration Appeals (“BIA”) affirming the decision of the Immigration
Judge (“IJ”). We will deny the petition.

                            I. Facts and Procedural History

       Like many Albanians, Agim Drishti and his family were severely persecuted

during the Communist era. He claims that his father was executed in 1953 for his

opposition to the Communist government and his brother fled in 1963 to the United States

(and is now a U.S. citizen). Because such emigration was considered an act of treason,

Drishti testified that he and his mother were summoned to the secret police, threatened,

interrogated, and detained for one week following his brother’s departure. (JA 238).

Drishti alleged several other instances of detention and beatings during the Communist

period.

       After 1991 and the fall of the Communist regime, Drishti joined the Democratic

Party (DP) and the Association of Persecuted Families, in which he claims to have served

in a leadership role. JA 154-55. Thus, after 1992, when the Democratic Party was in

power, Drishti and his family prospered.

       Drishti claims that in 2000, after the DP was replaced by the Socialist Party, he and

his son Elez were attending a DP meeting at which Elez gave a speech. Drishti says that

two days later, four masked individuals, who he claims were Socialist party members or

police officers, came to his house and arrested him and another son, Ismet, searched his

house, and appeared to look for materials relating to his involvement with the DP.

During this detention, the guards beat Drishti and threatened him with worse if he should



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continue his involvement with the party. Upon his release, Drishti says that he found his

store had been destroyed by an apparent explosion. Although he did not know who

destroyed the store, he had several reasons to suspect socialist sympathizers. Drishti

claims following this incident he feared for his life, and fled Albania in September, 2000.

       Agim Drishti came to the United States with a tourist visa. Agim’s son Elez and

Elez’s wife, Nevila, later joined him in the United States by entering through the

Canadian border. Elez and Nevila have a son who born in the United States on October

18, 2001. Agim has two other children, a son and a daughter, who remain in Albania.

The cases for Agim, Elez, and Nevila were consolidated at the IJ level and all three

testified before the IJ. Agim, however, separately appealed.

       The IJ denied Drishti’s claim on the basis of an adverse credibility finding. In

particular, the IJ did not find past persecution because she disbelieved the story about the

2000 attack. The IJ found that Agim’s testimony “differed materially from his asylum

application,” and that he was “evasive” in answering questions. App. 65. As to the other

petitioners, the IJ found that Elez seemed to “testify in an exaggerated manner and

seemed to be making up facts as he went along,” that he “deflected direct questions,” and

offered inconsistent testimony in several material respects. In addition, the IJ found that

Nevila’s testimony contradicted Elez’s and Agim’s testimony as to the dates of certain

key instances (such as the 2000 arrests) as well as with respect to details of the arrest

incident (such as whether the police wore masks and the number of people who came to



                                              3
the home). Finally, the IJ noted that there was a lack of corroboration of the testimony.

App. 65-66.

       The IJ, therefore concluded that “While this Court is willing to accept that the

respondents are members of the Democratic Party and probably had run-ins with

members of the Socialist Party, the heart of their testimonies was not believable.” App.

66. Instead, the IJ found that the testimony regarding the identity of the attackers was

“sketchy” and there was not sufficient evidence that the assailants were members of the

Socialist Party. The IJ noted that the State Department Report stated that there were no

reports of political prisoners, killings, or disappearances and that members of the

Democratic Party continue to hold seats in the Albanian parliament. Therefore, in

addition to disbelieving the testimony regarding past persecution, the IJ found that the

respondents had failed to establish they had a well-founded fear of persecution. App. 66.

       The BIA issued a one-paragraph opinion affirming the IJ’s denial of relief as to

Agim Drishti. The BIA’s opinion made only one correction to the IJ’s findings, which

was that the IJ found that one of the date discrepancies was erroneous, but otherwise

simply agreed with the IJ’s credibility determination. Because of the summary nature of

the BIA’s decision, and the fact that the opinion essentially deferred to the IJ’s analysis,

we have the authority to review both the IJ’s and the BIA’s decision. He Chun Chen v.

Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004).

       Our review is limited by the “substantial evidence” standard, under which “the



                                              4
administrative findings of fact are conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). The determination

that an asylum applicant faced past persecution, or has a well-founded fear of future

persecution, is a factual conclusion subject to this deferential review. Gao v. Ashcroft,

299 F.3d 266, 272 (3d Cir. 2002). We therefore must uphold the IJ’s findings if they are

“supported by reasonable, substantial, and probative evidence on the record considered as

a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992).

                                       II. Discussion

       In our view, the adverse credibility determination is supported by inconsistencies

in the record as well as by the IJ’s finding that there was insufficient corroboration of the

testimony. While it is true that many of the inconsistencies identified by the IJ concern

details such as dates and specifics about the events in question, we cannot identify other

evidence in the record which would compel us to find credibility. Additionally, the State

Department’s report on country conditions for 2000 undermines the Drishti’s claim that

they were attacked and arrested for political reasons, as the report indicates that instances

of such conduct were rare at that time.

       Moreover, the IJ relied heavily on the demeanor of the all three applicants, a

finding to which we owe substantial deference. See Abdulrahman v. Ashcroft 330 F.3d

587, 597 (3d Cir. 2003) (“An immigration judge alone is in a position to observe an

alien’s tone and demeanor, to explore inconsistencies in testimony, and to apply workable



                                              5
and consistent standards in the evaluation of testimonial evidence. He is, by virtue of his

acquired skill, uniquely qualified to decide whether an alien’s testimony has about it the

ring of truth. The courts of appeals should be far less confident of their ability to make

such important, but often subtle, determinations.”) (quoting Sarvia-Quintanilla v. INS,

767 F.2d 1387, 1395 (9th Cir.1985)). In short, there is no basis for setting aside the IJ’s

conclusion that Drishti had not established a claim for past persecution based on the 2000

arrest incident.

       Finally, considering the evidence of relatively stable country conditions, and the

fact that the Drishti’s relatives have lived in Albania with apparent security, we are

satisfied that the IJ had substantial evidence for her conclusion that Drishti lacks a well-

founded fear of persecution.

       The petition for review will be denied.




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