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


5-12-2005

Astrit Ndreu v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2006




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                                            NOT PRECEDENTIAL


                IN THE UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT

                           ____________________

                                NO. 04-2006
                           ____________________


            ASTRIT NDREU; ANTIGONI NDREU; BESHIR NDREU,
                                Petitioners

                                       v.

   ALBERTO GONZALES, ATTORNEY GENERAL OF THE UNITED STATES
        OF AMERICA; DEPARTMENT OF HOMELAND SECURITY
                      ______________________


                     On Petition for Review of Orders of the
                         Board of Immigration Appeals
            (Board Nos. A79-317-392, A79-317-393 and A79-317-394)
                          ______________________

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

                            (Filed May 12, 2005 )




                         ________________________

                          OPINION OF THE COURT
                         ________________________

BECKER, Circuit Judge.
       Astrit Ndreu, 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”) denying his claims for asylum, withholding of removal, and protection under

the Convention Against Torture.

                            I. Facts and Procedural History

       Ndreu and his family were interned from 1958 to 1991, when the Communists fell,

in a camp called Shtyllas. Ndreu was not released from internment until he was thirty-

five years old, having spent essentially his entire life in the internment camp. During this

time, he was permitted to work and go to school on the internment camp grounds. Upon

release, Ndreu joined the Democratic Party (DP) and the Association of the Ex-Politically

Persecuted. He went to Tirana and began working for the Chamber of Commerce in 1993

and pursued a college degree.

       Ndreu claimed that, during the 1997 governmental collapse, a bomb was set off at

a hotel where he had helped organize a DP meeting. The police were called but did not

respond, leading Ndreu and others to suspect that the police were involved in the

bombing. The next day another explosion occurred at the home of a relative, who also

was active in the DP. Ndreu also suspected that this incident was politically motivated.

On the way back from this same DP meeting to Tirana, his five-car convoy was stopped

and an unknown person shot at the convoy, wounding his cousin in the leg.

       Shortly thereafter, in June 1997, the Socialist Party came into power. During the



                                             2
initial period of Socialist control, Ndreu claimed that there were peaceful DP

demonstrations in Tirana; however, Ndreu began to fear for his life. He testified that he

“was afraid that someone may attack [him] or kill [him] and other supporters of the

Democratic Party. But thank[s] to [his] supporters and . . . the few people he knew at the

police, nothing in particular happened to him.” AR 155. He claimed that a friend, who

was a DP supporter, was killed by the police in 1998, and that the leader of the DP was

killed on September 12, 1998, by people who were widely believed to be involved with

the police and supporters of the Socialist Party. AR 154, 156. During this time, Ndreu

claimed that he participated in rallies and meetings for the DP, but felt he was constantly

under surveillance, in particular because in 1998 someone (he vacillated between saying

this person was a relative or a friend) warned him that he was on a “hit list.”

       On June 19, 1999, Ndreu was dragged out of his car by two people who stole the

car. While they let him go, he says the assailants claimed they would “take [his] life”

next time. AR 162. Ndreu reported the incident to the police, but said that the police

would not respond because the assailants had some connection to the police inspector.

AR 162. Ndreu admitted that he was not physically injured by the incident. According to

Ndreu, the police inspector was fired ten days after this incident, but, it was not clear

whether he was terminated because of anything related to the car incident.

       Nrdeu came to the United States on February 8, 2000, on a tourist visa. His wife

Antigoni and minor son Beshir followed on October 13, 2000, also on tourist visas. On



                                              3
April 19, 2001, they were issued Notices to Appear, each conceded removability, but

sought asylum and withholding of removal. The IJ denied the asylum claims, and the

BIA affirmed without opinion.

       Generally, the IJ found Ndreu to be credible, but she found as a legal matter that

Ndreu did not establish an asylum claim. First, the IJ found that the years of internment

did constitute past persecution; however, she held that country conditions had changed so

fundamentally with the fall of the Communist government as to rebut any presumption of

future persecution that might arise from those prior years of persecution. The IJ stated,

“Although is quite clear as crystal that the respondent was persecuted for 35 years of

internment, the application for asylum can not be granted on that bas[i]s. Fundamental

changes in Albania preclude it.” A11 ; See Abdulrahman v. Ashcroft, 330 F.3d 587, 592

n.3 (3d Cir.2003)) (“The presumption [of future persecution] . . . is rebutted where the

Government establishes by a preponderance of the evidence that . . . conditions in the

applicant’s country have changed so as to make his or her fear no longer reasonable.”).

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

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



                                             4
“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

       A. Post-1992 Allegations of Persecution

       The IJ found that none of the other specific incidents which occurred after 1992,

such as the bombing of the hotel and the home of Ndreu’s relative, the shooting at the

convoy of cars, and the car-jacking, constituted past persecution. As to the bombing of

the hotel and the relative’s home in 1997, the IJ found there was a lack of evidence as to

who was responsible for the bombings or that Ndreu or his family were targeted because

of their political activities. A15. The IJ similarly concluded that there was not sufficient

evidence of the motive or the identity of the perpetrators in the shooting at the convoy of

cars or the 1999 car-jacking to establish a persecution claim.

       While the IJ may have gone too far in discounting Ndreu’s supposition that there

was some sort of political motivation for these incidents, particularly with regard to the

1999 car-jacking, the IJ’s finding that these incidents were not past persecution is

supported by substantial evidence. Foremost is the fact that in 1997, at the time the

bombings and the shooting occurred, the country was in a virtual state of anarchy in

which violence abounded. The IJ found that, without more evidence about the assailants

in each case, these incidents might have been part of the general violence going on at that

time. See Lie v. Ashcroft, 396 F.3d 530, 535 (3d Cir. 2005) (requiring evidence that a



                                             5
robbery was perpetrated “on account of” a protected ground, particularly where similar

acts of robbery occurred with regularity in Indonesia).

       With respect to the car-jacking, the IJ found a similar lack of evidence that the

police orchestrated this incident or that it was politically motivated, finding Ndreu’s

testimony “unconvincing as to whether that was a crime against him calculated to steal his

car or whether it was an offense against him calculated to threaten him because of his

political opinion.” AR 22. Moreover, the IJ found that the car-jacking was not

sufficiently severe to constitute persecution because Ndreu “needed no medical care and

does not actually testify to any severe harm or really even any severe threats against the

respondent.” AR 21-22. See Lie, 396 F.3d at 536 (“[T]wo isolated criminal acts,

perpetrated by unknown assailants, which resulted only in the theft of some personal

property and a minor injury, is not sufficiently severe to be considered persecution.”).

These conclusions by the IJ are supported by the record, and so, in our view, there is

substantial evidence to support the IJ’s conclusion that this incident did not rise to the

level of past persecution.

       B. Well-Founded Fear of Future Persecution

       After establishing that there was no post-1992 persecution, the IJ went on to

conclude that Ndreu had not established a well-founded fear of future persecution. First,

the IJ found that Ndreu did not exhibit a subjective fear of future persecution, in

particular because he traveled widely in Europe (as his passport reflected) during this



                                              6
period and returned to Albania after each trip. The IJ reasonably inquired, “If in fear,

why return?” A24. Additionally, the IJ was troubled by the fact that Ndreu continued to

remain in Albania, indeed in the same home and job, for several years after these

incidents occurred, finding that he “did not act as a true refugee.” A25.

       Second, the IJ held that Ndreu had not established that, objectively, he has

reasonable grounds to fear return to Albania. First, she found that there is no evidence

Ndreu “participates in a party that is currently the subject of intense political persecution

in Albania,” pointing to the State Department reports which indicate that the DP has

access to the media, has been able to run in elections, and has won in several instances.

AR 24-25. Thus, the IJ held that “the Court cannot find that the mere fact that the

respondent is a member of the Democratic Party and is Albanian suffices to compel the

Court to find . . . he has a reasonable or well-founded fear of future persecution in

Albania.” AR 26.

       The IJ was certainly correct that circumstances have changed fundamentally since

1991 such that any presumption arising from prior persecution is rebutted by changed

country conditions. The conclusion that country conditions have changed is supported,

inter alia, by the evidence in the State Department Report in the record.1 The IJ also had



  1
    Ndreu complains that the IJ also relied upon the British Home Office Assessment to
determine country conditions in Albania and as a guide in questioning the petitioner on
direct and cross-examination. There does not appear to be any error in the IJ’s reliance on
this document, particularly since she made clear that she used this document as a
reference and corroborated it with the State Department report findings. A7.

                                              7
substantial evidence to support her conclusion that Ndreu did not establish a well-founded

fear of future persecution based both on the evidence of his subjective fear and the

objective lack of persecution of members of the Democratic Party today in Albania.

       The petition for review will be denied.




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