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


2-21-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4025




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 06-4025
                                     ____________

                                     FITIM BALAJ,

                                            Petitioner

                                             v.

                 ATTORNEY GENERAL OF THE UNITED STATES,

                                          Respondent
                                     ____________

                            On Petition for Review from an
                       Order of the Board of Immigration Appeals
                                (Board No. A98 477 936)
                          Immigration Judge: Henry S. Dogin
                                     ____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   January 10, 2008

           Before: FISHER, HARDIMAN and STAPLETON, Circuit Judges.

                               (Filed: February 21, 2008 )
                                     ____________

                              OPINION OF THE COURT
                                   ____________

FISHER, Circuit Judge.

      Fitim Balaj seeks review of an order of the Board of Immigration Appeals

(“BIA”), affirming the Immigration Judge’s (“IJ’s”) denial of his request for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”). For

the following reasons, we will deny the petition.

                                              I.

       We write exclusively for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       Balaj is an ethnic Albanian who was born in 1978 in Lluga Istog, Kosovo. He is a

citizen of the Federal Republic of Yugoslavia, now Serbia. He and his family fled

Kosovo because of oppression by Serbs and returned in 1999. Balaj was a member of the

Democratic League of Kosovo (LDK) party beginning in 1997; his family also belonged

to the LDK. His family, which still lives in Kosovo, consists of his wife, father, mother,

and brother.

       Balaj states that he fears harm from Albanian extremists affiliated with the Kosovo

Liberation Army (KLA) and from Serbian spies. His fears are based mainly on two

violent incidents.

       First, in October 2002,1 Balaj and his wife were accosted by three masked men

while walking home from an LDK meeting. The men warned them to discontinue their

LDK activities. One of them hit Balaj over the head with a gun, rendering him


       1
         Balaj’s I-589 Application for Asylum stated that the incident took place in 2002.
At different points during his testimony before the IJ, he stated that it was in 2002 and
that it was in 2003.

                                              2
unconscious. The men then threatened to rape his wife but were stopped by other LDK

members who were also leaving the meeting. Balaj reported the incident to his local

LDK party leader.

       In March 2004, a car bomb exploded in front of Balaj’s family’s home in the

middle of the night. The bomb shattered the windows of Balaj’s home, and he and his

family were cut by flying glass. Balaj testified that he left Kosovo that day.

       Balaj came to the U.S. with a friend, Ardjan Gashi, and entered illegally over the

Mexican border. Balaj testified that Ardjan’s brother, Saleh Gashi, picked up Balaj and

Ardjan at the Port Authority bus station in Manhattan on April 11, 2004. However, Balaj

submitted an affidavit from Saleh Gashi that states that Saleh saw Balaj and Ardjan for

the first time when the two travelers arrived unexpectedly at Saleh’s home in New Jersey

in the middle of the night on April 13, 2004. Balaj was unable to explain this discrepancy

at his hearing.

       Balaj presented an affidavit from the mayor of his town, who is also the local LDK

party leader. The affidavit confirmed that Balaj was an active member of the LDK, but

did not mention either of the acts of violent persecution about which Balaj testified. Balaj

did not present medical records from either of the incidents. He did not have letters or

affidavits from his family members, who remain in Kosovo, about these events. Balaj

stated that he did not have corroborating documentation because he did not know he

needed it.



                                             3
       The IJ denied Balaj’s applications for asylum, withholding of removal, and relief

under the CAT. The IJ’s oral opinion stated that while Balaj’s claims of harm prior to

1999 are credible, country conditions have changed in Kosovo from 2000 (when the

United Nations interceded) to the present. In addition, the IJ noted that none of Balaj’s

testimony about the violence he suffered at the hands of the KLA was corroborated.

None of the documents Balaj presented contained any mention of the violence, and the IJ

stated that such documentation was reasonably available from his family in Kosovo.

Therefore, the IJ found that Balaj was not credible and had not met his burden of proof on

his claims of persecution and torture.

       The BIA summarily affirmed the IJ’s decision, noting: “We agree that the

respondent failed to meet the burdens of proof on his claims of persecution and torture,

even assuming that he testified credibly.” Balaj now files this timely petition for review.

                                             II.

       We have jurisdiction under 8 U.S.C. § 1252(a)(1). In cases where the BIA adopts

the findings of the IJ and discusses some of the bases for the IJ’s decision, we review the

decisions of both the IJ and the BIA. Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004).

We review the IJ’s decision and the BIA’s affirmance under the deferential “substantial

evidence” standard. Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003) (en banc). A

finding is not supported by substantial evidence only where “no reasonable fact finder

could make that finding on the administrative record.” Id.



                                             4
                                             III.

       The Attorney General may, in his discretion, grant asylum to an alien who can

prove that he has experienced persecution or has a “well-founded fear of persecution on

account of race, religion, nationality, membership in a particular social group, or political

opinion.” 8 U.S.C. § 1101(a)(42)(A). To qualify for withholding of removal, which is

mandatory, an applicant must present credible evidence demonstrating a “clear

probability” of persecution if removed to a particular country. I.N.S. v. Stevic, 467 U.S.

407, 413 (1984). If an applicant shows that “it is more likely than not that [he] would be

tortured in the country to which [he] would be removed,” the applicant must receive

protection under the CAT. Obale v. Att’y Gen., 453 F.3d 151, 161 (3d Cir. 2006). An

alien does not qualify for CAT protection unless the torture is inflicted “by or at the

instigation of or with the consent or acquiescence of a public official.” Auguste v. Ridge,

395 F.3d 123, 151 (3d Cir. 2005).

       Balaj contends that he presented credible evidence of past persecution and that he

established a well-founded fear of future persecution. He asserts that the IJ was biased

against him and therefore refused to grant asylum. In addition, Balaj argues that the IJ

did not complete the required analysis regarding the lack of corroborative evidence, and

therefore the BIA erred when it affirmed the IJ’s decision.

       Balaj did not carry his burden of proof on whether he experienced past

persecution, because he did not provide corroborating evidence for his testimony about



                                              5
the violent incidents he claimed to have experienced. Therefore, he was not entitled to a

presumption that he would be persecuted in the future, 8 C.F.R. § 208.13(b)(1), and did

not prove that he was eligible for asylum.

       Balaj need not have provided corroboration for his testimony unless it was

reasonable to do so, but if corroboration was reasonably available, obtaining it was not

optional. Abdulai v. Ashcroft, 239 F.3d 542, 551 (3d Cir. 2001). “[A]n applicant who

neither introduces [corroborating] evidence nor offers a satisfactory explanation as to why

he or she cannot do so may be found to have failed to meet his or her burden of proof.”

Id. Abdulai outlines a three-part inquiry for such cases: “(1) an identification of the facts

for which it is reasonable to expect corroboration; (2) an inquiry as to whether the

applicant has provided information corroborating the relevant facts; and, if he or she has

not, (3) an analysis of whether the applicant has adequately explained his or her failure to

do so.” Id. at 554.

       Contrary to Balaj’s argument, the IJ performed the Abdulai three-part analysis. Id.

at 551-52. The IJ identified that it was reasonable to expect corroboration of the facts of

the two violent attacks, such as letters from Balaj’s family or Lluga Istog LDK members,

medical records, photographs, or copies of the threatening letters supposedly sent to Balaj

by the KLA. This expectation was reasonable because Balaj demonstrated that he was

able to produce some documentation (including his marriage certificate, his LDK

membership card, and a letter from his mayor). In addition, it would have been



                                              6
reasonable for Balaj to obtain corroborating evidence because his family is still living in

Kosovo. Second, the IJ established that Balaj had not provided information corroborating

the relevant facts of the attacks. Third, the IJ found that Balaj’s explanation for his

failure to obtain the evidence – that he did not know he needed them – was not adequate.

       Therefore, there is substantial evidence in the record to show that the IJ reasonably

determined that Balaj failed to carry his burden of proof due to his failure to provide

corroboration. Since Balaj did not establish past persecution, he is not entitled to a

presumption of future persecution.

       Even if Balaj had carried his burden of proof as to past persecution, he would not

be entitled to relief, because country conditions in Kosovo have changed such that he

need not fear future persecution. We have explained:

       [W]here an asylum applicant has established past persecution, the existence
       of that persecution gives rise to a presumption that the applicant has a well-
       founded fear of future persecution. This presumption may be rebutted,
       however, if the government establishes, by a preponderance of the
       evidence, that there has been a fundamental change in circumstances such
       that the applicant no longer has a well-founded fear of persecution in his or
       her home country.

Voci v. Gonzales, 409 F.3d 607, 617-18 (3d Cir. 2005) (citing 8 C.F.R. § 208.13(b)(1);

internal quotation marks and citations omitted).

       The IJ credited Balaj’s testimony about the persecution he and his family

experienced in 1999 and prior. However, the IJ found that country conditions in Kosovo

had changed since the NATO and UN intervention in 2000. The IJ noted that in Balaj’s



                                              7
area of Lluga Istog, the LDK, of which he is a member, is in control. Based on the

evidence in the record, we cannot say that it was unreasonable for the IJ to find that Balaj

no longer has a well-founded fear of future persecution, even if he was persecuted in the

past.

        Because Balaj has failed to demonstrate that he is eligible for asylum, we conclude

that it was reasonable for the IJ and BIA to determine that he does not meet the more

stringent standards for withholding of removal. “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.” Chen, 376 F.3d at

223.

        Balaj has not carried his burden of proof on his claim for protection under the

CAT, because he has not demonstrated that it is more likely than not that he would be

tortured if returned to his home country. The IJ denied Balaj’s CAT claim because there

was no indication that any torture would be inflicted “by or at the instigation of or with

the consent or acquiescence of a public official.” Auguste, 395 F.3d at 151. Balaj stated

that the individuals he fears are KLA extremists and Serbian spies, not persons associated

with the government. Furthermore, the government in his area is controlled by the LDK,

of which Balaj was a member. Therefore, the denial of Balaj’s CAT claim was supported

by substantial evidence.




                                              8
       Balaj argues that the IJ’s adverse credibility determination was not supported by

substantial evidence. However, his testimony was contradictory in certain respects. The

most significant contradiction concerns the circumstances of Balaj’s arrival in the greater

New York City area. The IJ found that the discrepancy between Balaj’s testimony and

Saleh Gashi’s affidavit undermined the credibility of all of Balaj’s testimony.

       The government claims that the discrepancies in Balaj’s testimony support the IJ’s

findings. Balaj argues that the discrepancies do not go to the heart of his claim, and

therefore the adverse credibility determination is not supported by substantial evidence.

Gabuniya v. Att’y Gen., 463 F.3d 316, 322 (3d Cir. 2006).

       It is questionable whether the circumstances of Balaj’s arrival in the United States

went to the heart of his asylum claim. Whether Balaj took a bus to Manhattan or knocked

on his friend’s brother door in New Jersey in the middle of the night has no bearing on

whether his fears for his safety in Kosovo are reasonable. On the other hand, the IJ

sensibly pointed out that the circumstances of Balaj’s arrival in the United States would

seem to be momentous and not subject to fading memory.

       In this case, it is unnecessary for us to determine whether the credibility finding

was supported by substantial evidence. This is because we defer to the BIA’s

determination that Balaj failed to meet the burden of proof on his claims of persecution

and torture. As our analysis above shows, we cannot say that no reasonable adjudicator

could have concluded that Balaj failed to meet his burdens of proof on his asylum,



                                              9
withholding, and CAT claims. Therefore, the adverse credibility determination was not

outcome-determinative, and we need not decide whether it was supported by substantial

evidence.

                                          IV.

      For the foregoing reasons, we will deny Balaj’s petition for review.




                                           10
