                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-7-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2707




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NOT PRECEDENTIAL

                IN THE UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT

                                 Case No: 05-2707

                                ILIRJAN ASLLANI,

                                           Petitioner

                                          v.

              ATTORNEY GENERAL OF THE UNITED STATES,

                                           Respondent


                   On Petition for Review of a Final Decision
                      of the Board of Immigration Appeals
                              BIA No. A79 430 028
                Immigration Judge: Honorable Rosalind K. Malloy


                Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                 May 12, 2006

            Before: BARRY, SMITH, and TASHIMA,* Circuit Judges
                            (Filed: June 7, 2006)


                            OPINION OF THE COURT

TASHIMA, Circuit Judge.

      *
         The Honorable A. Wallace Tashima, Senior United States Circuit Judge, United
States Court of Appeals for the Ninth Circuit, sitting by designation.

                                          1
      Ilirjan Asllani (“Asllani”), a native and citizen of Albania, seeks review of

the Board of Immigration Appeals’ (“BIA”) order affirming an Immigration

Judge’s (“IJ”) denial of his application for asylum, withholding of removal, and

protection under the Convention Against Torture (“CAT”). For the reasons set

forth below, we deny the petition for review.1

                                          I.

      Asllani entered the United States with a false Italian passport on December

24, 2001, and immediately applied for asylum, withholding of removal, and

protection under the CAT. Asllani claimed that he left Albania because he was

being persecuted on account of his political beliefs and his membership in a

particular social group – his nuclear family. Removal proceedings were promptly

initiated, and on December 25, 2001, Asllani was served with a notice to appear

before an IJ.

      At his removal hearing, Asllani testified that he had experienced problems

in Albania as a result of his membership in the Albanian Democratic Party. He

testified that his father, sister, and sister’s husband were all members of the


      1      The IJ had jurisdiction under 8 C.F.R. § 208.2(b) and the BIA
exercised appellate jurisdiction over the IJ’s decision under 8 C.F.R. §
1003.1(b)(3). We have jurisdiction to review a final order of removal under §
242(a)(1) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1252(a)(1).
See Wang v. Gonzales, 405 F.3d 134, 138 (3d Cir. 2005).

                                          2
minority Democratic Party, and that he had suffered persecution at the hands of

the majority Socialist Party.2 In support of this claim, Asllani cited two incidents.

First, Asllani claimed that he was not allowed to vote in the elections of 2000

because he was a member of the Democratic Party. However, Asllani

acknowledged that he was not registered to vote and his party membership card

had expired. Second, Asllani testified that on October 21, 2001, four unknown

men entered his home and severely beat him. Asllani further testified, however,

that he did not know why they beat him and all they said was that they would

return. Asllani later concluded that they must have been motivated by their

opposition to his political beliefs.

      Asllani produced an Albanian police report, which was admitted into

evidence, describing the October 2001 incident. The document indicated that an

investigation was underway and that Asllani and his family were under police

watch, but that the police could not guarantee that this event would not recur.

      In addition, the IJ considered the State Department profile on Albania, dated


      2
              Asllani explained that his political activities consisted of assisting as
a campaign worker in the 2001 mayoral campaign of a local Democratic Party
candidate. Although the candidate did not win, Asllani testified that she has
continued her political activities. There was no testimony that the mayoral
candidate, or any of her other campaign workers, have suffered persecution as a
result of their political activity.

                                           3
May 2001, which reported that the Democratic Party was recognized by the

government and participated in most parliamentary activities. The profile also

stated that the 2000 national elections were reported to be calm and orderly, and

were generally free and fair. A letter from the State Department dated March 31,

2003, however, indicated that the Democratic Party did credibly report some

incidents of harassment of its members in 2001 and some politically-motivated

dismissals from positions with the government in 2001, but there were no such

reports for 2002. The letter also indicated that the Albanian government generally

respected citizens’ right of association.

      Asllani also sought to introduce a copy of a certification of Asllani’s

membership in the Democratic Party, a copy of his purported membership card,

and hospital records describing the extent of his injuries stemming from the

October 2001 incident. These documents, however, were excluded from evidence

by the IJ because they could not be properly authenticated.

      In support of his second basis for relief, Asllani testified that while in

Albania he was persecuted for the criminal activities of one of his sisters. Asllani

claims that this persecution resulted from his membership in a particular social

group – his family. Asllani’s sister had been convicted of defrauding various

individuals trying to obtain visas. Asllani testified that an Albanian custom of

                                            4
“blood feuds,” meant that as the sole unmarried son, he was targeted for

retribution by the families of his sister’s victims. He testified that the tradition is

to target the male of the family, and that he was considered the male of the family

because his father was deceased and he was the only remaining unmarried male.3

      Asllani further testified that his family and he had received threats and

demand for payment from the families of his sister’s victims, but did not provide

any specifics regarding the nature of the threats, their severity, their frequency, or

when they had been made. Asllani also explained that he did not know if the

attack he suffered on October 21, 2001, was motivated by his political affiliations

or by people taking revenge as a result of his sister’s fraudulent activity.

      The May 2001 State Department Profile on Albania noted that some clans in

the northern portion of Albania still engaged in “blood feuds,” and noted that the

government might not be able to protect the targets of the feud in certain cases.

Although Asllani characterized the threats against him as a “blood feud” directed

at him to seek vengeance for his sister’s crimes, Asllani also testified that he had

personally assumed the legal obligation to repay his sister’s victims in order to

have his sister’s prison term reduced from five years to six months. Asllani



      3
             According to Asllani, his brother was not targeted because once you
are married, you are no longer considered part of the family tree.
                                            5
estimated that he still owes a total of $30,000 to various individuals.

      After consideration of Asllani’s testimony and evidence, the IJ denied

Asllani’s claims for relief, concluding that Asllani’s testimony was not credible

and that he had failed to establish sufficient evidence of past persecution, or a

likelihood of future persecution. On appeal, the BIA affirmed the IJ’s decision

only “insofar as she found that the respondent had not satisfied the applicable

burden of proof for the requested forms of relief.” The BIA noted that “[e]ven if

credible, [Asllani] failed on this record to establish past persecution or a well-

found fear of future persecution.” Asllani now appeals from the BIA’s decision

affirming the IJ.

                                          II.

      “[W]hen the BIA both adopts the findings of the IJ and discusses some of

the bases for the IJ’s decision, we have authority to review the decisions of both

the IJ and the BIA.” He Chun Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004).

“We must uphold the BIA’s factual findings if they are ‘supported by reasonable,

substantial, and probative evidence on the record considered as a whole.’” Lie v.

Ashcroft, 396 F.3d 530, 534 n.3 (3d Cir. 2005) (quoting INS v. Elias-Zacarias, 502

U.S. 478, 480 (1992)). “A determination of whether an asylum applicant has

suffered from ‘persecution’ or whether that individual has a ‘well-founded fear of

                                           6
persecution’ is factual and thus is entitled to deference.” Wang, 405 F.3d at 138

(citation omitted).

                                         III.

      The framework under which we review administrative determinations is

well established. Section 208(a) of the INA, 8 U.S.C. § 1158(b), provides the

Attorney General with discretion to grant asylum to a “refugee,” with certain

exceptions. In general, a “refugee” is “any person who is outside any country of

such person’s nationality . . . who is unable or unwilling to return to, and is unable

or unwilling to avail himself or herself of the protection of, that 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.” INA §

101(a)(42)(A); 8 U.S.C. § 1101(a)(42)(A). An applicant has the burden to

establish that he fits within this definition of refugee. 8 C.F.R. § 1208.13(a).

      An applicant may establish his refugee status by showing either that he has

been subject to past persecution or has a well-founded fear of future persecution.

See He Chun Chen, 376 F.3d at 223-24. The persecution, however, must be “on

account of” one of the five statutory bases. 8 C.F.R. § 1208.13(b). The Supreme

Court, in Elias-Zacarias, held that while an asylum-seeker would not “be expected

to provide direct proof of his persecutors’ motives,” nevertheless, since the statute

                                          7
makes motive critical, he must provide some evidence of motive, direct or

circumstantial. Elias-Zacarias, 502 U.S. at 483-84. In addition, in order to obtain

reversal of the BIA’s determination, the asylum-seeker must show that the

evidence he presented was so compelling that no reasonable fact-finder could fail

to find the requisite fear of persecution. Id.

      While the decision to grant or deny an applicant asylum is discretionary,

“the Attorney General must grant withholding of removal if the alien demonstrates

a ‘clear probability’ that, upon return to his or her home country, his or her ‘life or

freedom would be threatened’ on account of race, religion, nationality,

membership in a particular social group, or political opinion.” He Chun Chen, 376

F.3d at 223 (citation omitted). “An alien who fails to establish that he or she has a

well-founded fear of persecution, so as to be eligible for a grant of asylum,

necessarily will fail to establish the right to withholding of removal.” Id.

      Under the CAT, an applicant is entitled to withholding of removal if he

establishes that “it is more likely than not that he or she would be tortured if

removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). The

regulation defines torture as “any act by which severe pain or suffering, whether

physical or mental, is intentionally inflicted” by a public official for certain

purposes. 8 C.F.R. § 1208.18(a)(1).

                                           8
                                          A.

      Asllani argues that the IJ improperly excluded several documents from

evidence that would have corroborated his testimony as to his claim of

persecution. The documents included a membership certificate for the Democratic

Party, a purported membership card, and hospital records demonstrating that

Asllani was attacked on October 21, 2001. Asllani contends that the exclusion of

these documents, and the IJ’s corresponding decision not to consider them in

assessing Asllani’s credibility, was a violation of his due process right to a fair

hearing.

      Asllani’s arguments, however, are unavailing. Even crediting Asllani’s

testimony and evidence, Asllani nonetheless failed to meet his burden of

demonstrating that he was persecuted on account of a statutorily-protected ground

because he was unable to tie any alleged persecution to his political beliefs. See

Part III(B), infra. In fact, both the IJ’s and the BIA’s reasoning turned on the fact

that Asllani was unable to demonstrate that any of the violence or harassment he

suffered was a result of his political affiliations, and not on a lack of corroborating

evidence.

      Moreover, the possibility that the IJ may not have credited Asllani’s

testimony is rendered moot by the BIA’s opinion, in which it affirmed the IJ even

                                           9
assuming the credibility of Asslani’s testimony. See He Chun Chen, 376 F.3d at

226 (explaining that remand to the BIA is inappropriate where excluded

documents did not affect the facts and evidence upon which an agency’s decision

is based). Accordingly, because Asllani failed to demonstrate that any persecution

he suffered was on account of his political beliefs, and because the BIA credited

Asllani’s testimony thus rendering his argument moot, we reject this argument.

                                         B.

      Asllani argues that the adverse findings of the BIA and the IJ are not

supported by substantial evidence because (1) the IJ’s adverse credibility finding

was erroneous, and (2) he satisfied his burden of establishing that he suffered

persecution on account of his political beliefs and because of his membership in a

particular social group.

      Insofar as Asllani argues that the IJ’s adverse credibility finding warrants

reversal, his claim is moot. As discussed in Part III(A), supra, the BIA credited

Asllani’s testimony and affirmed the IJ’s decision on the ground that Asllani failed

to satisfy the applicable burden of proof. Therefore, because the BIA’s decision

was not based on the IJ’s adverse credibility finding, we reject this argument.

      Asllani’s argument that he suffered persecution on account of his political

beliefs finds little support in the record. The only evidence Asllani offered with

                                         10
regards to the alleged persecution on account of his political beliefs was testimony

that he was prevented from voting in the 2000 election, and testimony regarding

an incident where four unknown assailants attacked him in his home. However,

Asllani is unable to carry his burden of demonstrating that these incidents were

“on account of” his political views. See Lie, 396 F.3d at 535 (finding that

petitioner’s testimony regarding a robbery in which his attackers used an ethnic

slur insufficient evidence of persecution on account of petitioner’s political views

or nationality).

      Asllani’s testimony demonstrates that the voting incident was likely a result

of Asllani’s failure to register in his particular district, and the fact that he was

attempting to use an expired voter ID card. In addition, with regards to the

assault, Asllani testified that the attackers made no mention of why they attacked

him, nor did he have any way of knowing whether the assault was motivated by

the attackers’ disagreement with his political beliefs. Finally, there was no

testimony regarding any alleged persecution of any of Asllani’s family members,

or other campaign workers, who were also members of the Democratic Party.

Based on these facts, there is substantial evidence to support the BIA’s and the IJ’s

decisions. Accordingly, we reject this argument because Asllani has failed to

demonstrate that the evidence he presented was strong enough to compel a

                                           11
contrary conclusion. See Elias-Zacarias, 502 U.S. at 483-84 (explaining that in

order to obtain reversal of the BIA’s determination, an asylum-seeker must show

that the evidence he presented was so compelling that no reasonable fact-finder

could fail to find the requisite fear of persecution); Wang, 405 F.3d at 138

(“Congress has directed us to treat the BIA’s findings of fact as conclusive ‘unless

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

(citations omitted)).

      Asllani also argues that he has suffered persecution on account of his

membership in a particular social group – his family. This argument, however,

also finds little support in the record. Although Asllani alleges that he has been

the target of a “blood feud” as a result of his sister’s fraudulent activity, Asllani’s

testimony does not establish any evidence of persecution. At best, Asllani’s

testimony indicates that the October 21, 2001 attack may have been motivated by

the alleged “blood feud.” However, Asllani has testified that he did not know his

attackers, and that he did not know why they attacked him. The only other

evidence Asllani offered regarding alleged persecution on account of his

membership in his family was that he and his family had received threats and

demand for payment from the families of his sisters’ victims. However, Asllani

did not provide any specifics regarding the nature of the threats, their severity,

                                           12
their frequency, or when they had been made, and therefore failed to carry his

burden of demonstrating that he was persecuted. See Li v. Attorney Gen. of U.S.,

400 F.3d 157, 167 (3d Cir. 2005) (defining persecution as “‘threats to life,

confinement, torture, and economic restrictions so severe that they constitute a

threat to life or freedom’” (quoting Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.

1993))). Accordingly, because the IJ’s and BIA’s factual determinations were

supported by substantial evidence, and Asllani has failed to meet his burden of

establishing that the evidence compels a finding that he was persecuted, or has a

well-founded fear of future persecution, see Elias-Zacarias, 502 U.S. at 483-84, we

reject this argument.

                                           C.

      Because Asllani has failed to meet his burden to establish eligibility for

asylum, he also necessarily fails to satisfy the higher standard required for

withholding of removal. See He Chun Chen, 376 F.3d at 223. In addition, Asllani

has not established that “it is more likely than not that he . . . would be tortured if

removed to the proposed country of removal,” as required for relief under the

CAT. 8 C.F.R. § 1208.16(c)(2). While there is evidence that Asllani owes several

individuals money, there is no evidence in the record to indicate that it is more

likely than not that Asllani would be tortured if he returned to Albania.

                                           13
                                IV.

For the foregoing reasons, Asslani’s petition for review is DENIED.




                                 14
