                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-12-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3866




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 07-3866
                                     ____________

                               ERGELS GJONOMADHI,

                                            Petitioner,

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES,

                                           Respondent.

                                     ____________

                            On Petition for Review from an
                       Order of the Board of Immigration Appeals
                               (Board No. A79-296-210)
                         Immigration Judge: Eugene Pugliese
                                     ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  January 6, 2009

   Before: CHAGARES, HARDIMAN, Circuit Judges and GARBIS,* District Judge

                               (Filed: February 12, 2009)
                                     ____________

                              OPINION OF THE COURT
                                   ____________



      *
        The Honorable Marvin J. Garbis, Senior District Judge for the United States
District Court for the District of Maryland, sitting by designation.
HARDIMAN, Circuit Judge.

       Ergels Gjonomadhi petitions for review of a final order of removal entered by the

Board of Immigration Appeals (BIA), which denied his application for asylum. We will

grant the petition and remand the case to the BIA for further proceedings.

                                              I.

       Because we write exclusively for the parties, we will recount only those facts

essential to our decision.

       Gjonomadhi was born on October 21, 1984 in Korce, Albania. During the 1980s

and 1990s, Albania experienced social, political, and economic upheaval as its

government changed hands among Communist, Democratic, and Socialist regimes. At all

relevant times, Gjonomadhi’s parents, Skender and Fluturije, were active in pro-

democracy activities. Despite enduring various hardships, including prison and

internment in labor camps, Gjonomadhi’s parents joined the Democratic Party in 1993,

one year after it came to power in Albania.

       In 1997, the Socialist Party took control. Thereafter, Gjonomadhi’s parents

continued their political activities with the Democratic Party by attending demonstrations

and speaking out against the Socialist regime. On July 1, 1997, after returning home from

a meeting where he shared his experiences with others, Skender received an anonymous

death threat. Two days later, on July 3, 1997, Skender’s bruised body was found hanging

in a barn in a remote area. The government ruled the death a suicide. Wanting to learn



                                              2
the truth about his father’s death, Gjonomadhi began to ask questions of Skender’s

friends, who told him that “everything was caused by the Socialist Party.” Following

these inquiries, in April 1999 Fluturije received an anonymous phone call in which she

was warned to tell her son “to stay quiet because he’s going to have the same end as his

father.” Soon thereafter, Fluturije arranged for Ergels — who was then fourteen — to

leave Albania on June 26, 1999; she followed him to the United States five months later.

       After Gjonomadhi and Fluturije overstayed their visas, they applied for asylum.

Ultimately, Fluturije was able to adjust her status to that of lawful permanent resident, but

the Immigration Judge (IJ) bifurcated the removal proceedings and required Gjonomadhi

to file his own application for asylum.

       After a hearing, the IJ denied Gjonomadhi’s application and ordered him removed

to Albania, finding that country conditions had changed in Albania when the July 3, 2005

election ended Socialist rule. Because the BIA did not address the issue of changed

conditions in Albania, however, we must examine the BIA’s ratio decidendi, namely, that

Gjonomadhi did not show that he suffered past persecution. Gao v. Ashcroft, 299 F.3d

266, 272 (3rd Cir. 2002). The parties agree that the answer to this question turns on

whether Skender was murdered by Socialists on account of his political opinion.

       Our reading of the IJ’s written decision leads us to conclude that the IJ never

formally held that Gjonomadhi did not suffer persecution. Clearly, the IJ had problems

with some of Gjonomadhi’s evidence. The IJ found that Skender’s death certificate was



                                              3
not probative of the cause of death as it was silent in that regard. In addition, the IJ found

unpersuasive both of the unverified letters of acquaintances who claimed that Skender

was murdered by Socialists, and a newspaper article that called Skender’s death a

“mystery.”

       The IJ’s analysis of the aforementioned issues is not problematic, but it is

incomplete. The IJ did not address significant evidence — both written and oral — that

Skender was murdered by Socialists because of his political opinion. First, the record

before the IJ included Fluturije’s affidavit that she submitted with the joint asylum

application in which she averred that she received an anonymous phone call with the

names of the people who were seen with Skender on the day of his death. She recognized

one as “a strong member of the Socialist [Party] and also a notorious man guilty of many

killing [sic] in 1997.” She concluded by stating: “Today I could not return to Albania as I

know I would be killed as I know I hold the information of a man who [h]as the power to

eliminate me due to his incrimination on the death of my husband who [sic] clearly is

political.”

       The record before the IJ also contained Gjonomadhi’s affidavit that he submitted

with his independent asylum application. Therein, Gjonomadhi expressly averred that his

father “has already been murdered by the Socialists because of his political activities with

the Democratic Party.”




                                              4
       Finally, the record included a transcript of Fluturije’s asylum hearing, where she

testified: “My son was going to become 18. Very young. I couldn’t leave him in the

hands of Socialists. Kill him like they killed my husband . . . This is the reason that I left

. . . I did this just to save the life of my child and not [sic] the same thing be repeated with

my husband.”

       Absent an adverse credibility determination, the IJ had to accept the

aforementioned testimony as true. Gao, 299 F.3d at 270; Abdulai v. Attorney Gen., 239

F.3d 542, 549 (3d Cir. 2001). Assuming the truth of the Gjonomadhis’ written and oral

testimony — along with the strong circumstantial evidence surrounding Skender’s death

— we find that the IJ’s conclusion that there is “in the record no compelling evidence that

the respondent suffered past persecution” cannot stand.

       Accordingly, we will grant the petition for review and remand the case to the BIA

for further proceedings consistent with this opinion.




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