                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-9-2007

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Precedential or Non-Precedential: Precedential

Docket No. 05-5072




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PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT

                    Case No: 05-5072

                     ARJAN SHEHU,

                            Petitioner

                             v.

   ATTORNEY GENERAL OF THE UNITED STATES,

                          Respondent



     On Petition for Review of Final Decision of the
              Board of Immigration Appeals
                 BIA No.: A96-017-867
   Immigration Judge: The Honorable Eugene Pugliese


    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                   February 15, 2007

      Before: SMITH and FISHER, Circuit Judges,




                            1
                 and DOWD, District Judge *

                    (Filed: April 9, 2007 )

Robert J. Pures II, Esq.
Aleksander B. Milch, Esq.
Charles Christophe, Esq.
Christophe & Associates, P.C.
Two Wall Street, Eighth Floor
New York, NY 10005
       Counsel for Petitioner

Peter D. Keisler, Esq.
William C. Peachey, Esq.
Paul F. Stone, Esq.
Marion E.M. Erickson, Esq.
U.S. Department of Justice
P.O. Box 502
Washington, D.C. 20044
       Counsel for Respondent




                          OPINION


SMITH, Circuit Judge.


       *
       The Honorable David D. Dowd, Jr., Senior District
Judge for the Northern District of Ohio, sitting by designation.

                                2
        Arjan Shehu is a native and citizen of Albania. Shehu
sought admission to the United States under the Visa Waiver
Program (“VWP”), which permits aliens from certain countries
to enter the United States for 90 days without a visa. Shehu
violated the program by overstaying that period.          The
Immigration Judge (“IJ”) denied him asylum and withholding of
removal under the Immigration and Nationality Act (“INA”),
and relief under the United Nations Convention Against Torture
and Other Cruel, Inhuman or Degrading Treatment or
Punishment (“CAT”). The Board of Immigration Appeals
(“BIA”) adopted and affirmed the IJ’s decision. We hold that
we have jurisdiction to review the BIA’s denial of a VWP
applicant’s petition for asylum, withholding of removal, and
relief under the CAT. However, we will affirm the decisions of
the BIA and the IJ on the merits of Shehu’s claims.

         I. Summary of Facts and Procedural History

        Shehu was born in Albania on April 5, 1961 and resided
there until April 1997. Shehu participated in a pro-democracy
demonstration in January, 1991. He was arrested during the
demonstration and taken to a police station. The police detained
Shehu for a week, during which time they beat and threatened
to kill him. Shehu joined the Democratic Party the following
month and testified that he remained active in the Party until his
departure to the United States.

       Civil unrest erupted in Albania in early 1997.       Bank

                                3
robberies became common. Shehu moved in with his brother,
the director of a local bank, for mutual protection. One evening
in March, 1997, a group of masked and armed men entered
Shehu’s brother’s house and beat and kidnapped them both. The
assailants took Shehu and his brother to another location, beat
them again, and threatened to kill them if Shehu’s brother did
not give them access to the bank’s money. They held Shehu for
ransom while his brother was taken to get the necessary keys
and codes required for access to the bank. The gang released
Shehu on the following afternoon. Shehu returned home and
found his brother already there.

       Shehu and his brother were determined to thwart the
robbery. They arrived at the bank and removed the money
before their assailants arrived. They hid the money at three
different safe locations. Shehu’s brother took his family to his
in-laws’ home in a nearby village. Shehu and his brother made
a complaint at the police station the following day. They then
went into hiding in another village for the next two months.

        Shehu then left Albania and went to Greece. He obtained
a series of temporary work permits and lived in a hotel. Shehu
testified that his assailants tracked him to Greece. Unidentified
men beat another one of Shehu’s brothers who was then living
in Greece and demanded to know Shehu’s whereabouts.
Shehu’s brother gave them one of Shehu’s old addresses, then
called Shehu to warn him. Shehu fled to another city in Greece,
stayed for a few days, then left for the United States via Paris

                               4
and the Caribbean.

        Shehu arrived in Miami, Florida on December 22, 2002.
He claimed that he was an applicant to the VWP. The
authorities became aware that he was violating that program and
served him with a Notice of Referral to an IJ on December 11,
2003. Shehu conceded that he was a VWP violator and filed an
application for asylum, withholding of removal, and relief under
the CAT, recounting the above facts and requesting relief. The
IJ found that the criminal gang that pursued Shehu did not do so
on the basis of race, religion, nationality, membership in a
particular social group, or political opinion–but out of a mere
desire for money. The IJ also held that any presumption of a
well founded fear of future persecution arising from his 1991
imprisonment was rebutted by the many years Shehu spent
without persecution and by the collapse of the Communist
regime. The IJ denied his request for asylum, withholding of
removal and relief under the CAT. However, the IJ did not
expressly order Shehu removed, because Shehu was referred to
the IJ for “asylum-only” proceedings. According to agency
regulations, these proceedings deal only with petitions “for
asylum or withholding or deferral of removal [under the INA or
CAT], and whether asylum shall be granted in the exercise of
discretion.” See 8 C.F.R. § 208.2(c)(3)(i). The alien cannot
contest removability or admissibility and cannot present other
grounds for relief. Id. The BIA affirmed and adopted the IJ’s
decision.



                               5
                        II. Discussion

                        A. Jurisdiction

       We must determine whether we have jurisdiction over
Shehu’s appeal before we can proceed to the merits of his claim.
Both parties contend that we have jurisdiction. However,
“[d]espite the agreement of both parties, we have an
independent obligation to examine our jurisdiction to hear this
appeal.” Collinsgru v. Palmyra Bd. of Educ., 161 F.3d 225, 229
(3d Cir. 1998).

         Shehu was processed as an applicant in the VWP
program, which allows entrants from certain countries to visit
the United States for 90 days or less without a visa. See 8
U.S.C. § 1187(a). Aliens admitted under this program forfeit
the right to challenge the basis of their removal, though they
may still apply for asylum, withholding of removal, and relief
under the CAT. See 8 U.S.C. § 1187(b). Therefore, VWP
participants who apply for asylum are granted “asylum-only”
hearings. See 8 C.F.R. § 208.2(c)(i). If the applicant is denied
relief in those proceedings, the VWP participant can be removed
without any further process. 8 C.F.R. § 217.4(a)(1). The BIA
issued a final order denying Shehu’s application for relief.

       We must determine if the BIA’s denial of Shehu’s
application for relief is a reviewable order. The jurisdictional
basis for our review of immigration determinations is found at

                               6
8 U.S.C. § 1252. It provides:

       (a) Applicable provisions

       (1) General orders of removal

       Judicial review of a final order of removal (other
       than an order of removal without a hearing
       pursuant to section 1225(b)(1) of this title) is
       governed only by chapter 158 of Title 28, except
       as provided in subsection (b) of this section . . . .

       (2) Matters not subject to judicial review

                               ***

       (B) Denials of discretionary relief

       Notwithstanding any other provision of law, no
       court shall have jurisdiction to review . . . (ii) any
       other decision or action of the Attorney General
       the authority for which is specified under this
       subchapter to be in the discretion of the Attorney
       General, other than the granting of relief under
       section 1158(a) of this title.

8 U.S.C. § 1252. Section 1158(a) states that, “[a]ny alien who
is physically present in the United States or who arrives in the
United States . . . irrespective of such alien’s status, may apply
for asylum in accordance with this section.” 8 U.S.C. § 1158(a).

                                 7
       The Eleventh Circuit addressed the identical question and
held that “[t]he denial of an asylum application in a [VWP]
proceeding is so closely tied to the removal of the alien that it
can be deemed–in conjunction with the referral to the
immigration judge–as a final order of removal, subject to §
1252(a)(1).” Nreka v. Att’y Gen., 408 F.3d 1361, 1367 (11th
Cir. 2005). The Second Circuit came to the same conclusion,
holding that:

       Although the denial of asylum in a Visa Waiver
       Program case does not occur in the context of
       removal proceedings, denial of the asylum
       application is the functional equivalent of a
       removal order under the provisions of the Visa
       Waiver Program. Were we to elevate form over
       substance by holding that the disposition of
       asylum-only proceedings does not function as a
       final order of removal to confer jurisdiction, we
       would create uncertainty over exactly what
       procedure a Visa Waiver applicant could pursue
       in order to obtain review of his or her asylum
       proceedings in the Courts of Appeals.




Kanacevic v. INS, 448 F.3d 129, 134-35 (2d Cir. 2006). This
Court has never squarely considered this jurisdictional question
in a precedential opinion. We hold that a denial of a VWP
applicant’s petition for asylum, withholding of removal, and


                               8
relief under the CAT constitutes “a final order of removal”
within the meaning of the statute, as the alien is entitled to no
further process before deportation. 8 U.S.C. § 1252(a)(1); see
also 8 C.F.R. § 217.4(a)(1). We therefore have jurisdiction over
Shehu’s appeal.

        Our holding comports with the interpretation of the
predecessor statute to 8 U.S.C. § 1252(a)(1), which provided
that jurisdiction over “all final orders of deportation . . . made
against aliens within the United States pursuant to
administrative proceedings under [8 U.S.C. § 1252(b)]” lies
exclusively in the courts of appeals. 8 U.S.C. § 1105a(a). The
Supreme Court held that the term “final orders of deportation”
included not only the actual order of deportation, but all orders
closely related to the deportation proceeding conducted pursuant
to 8 U.S.C. § 1252(b) and entered during the proceeding. See
Foti v. INS, 375 U.S. 217 (1963); Giova v. Rosenberg, 379 U.S.
18 (1964); see also Carvajal-Munoz v. INS, 743 F.2d 562, 566
(7th Cir. 1984) (applying Foti to a denial of asylum). The Sixth
Circuit clearly explained the rule, holding that “orders of
deportation” include “any denial of discretionary relief during
a deportation proceeding, where such relief, if granted, would
foreclose deportation,” such as, “[d]enials of applications for
withholding of deportation or for asylum.” Perkovic v. INS, 33
F.3d 615, 618 (6th Cir. 1994).

       We hold that 8 U.S.C. § 1252 vests us with jurisdiction
to hear Shehu’s appeal from a denial of asylum, withholding of

                                9
removal, and relief under the CAT.

       B. Asylum, Withholding of Removal, and Relief
       under The Convention Against Torture

        As the BIA adopted the IJ’s decision, we review the
decisions of both the IJ and the BIA. See Chen v. Ashcroft, 376
F.3d 215, 222 (3d Cir. 2004). We review the IJ and BIA’s
findings for substantial evidence and, therefore, may not set
them aside unless a reasonable factfinder would be compelled
to find to the contrary. See INS v. Elias-Zacarias, 502 U.S. 478,
481 (1992). An alien must demonstrate that he is a “refugee” in
order to receive a grant of asylum. See INS v. Cardoza-Fonseca,
480 U.S. 421, 428 n.5 (1987). A “refugee” is defined as an alien
“unable or unwilling” to return to his country of origin “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.” 8 U.S.C. § 1101(a)(42)(A). The
alien must have a subjectively genuine fear of persecution and
provide credible evidence that his fear is objectively reasonable.
See Cardoza-Fonseca, 480 U.S. at 431.

        The BIA affirmed the IJ’s finding that the criminal gang
that pursued Shehu was motivated by a bare desire for money,
not by political opinion or by hostility to Shehu’s family. There
is no evidence in the record that compels a contrary conclusion.
There is no evidence in the record to compel a reasonable
factfinder to adopt Shehu’s allegation that he would not have

                               10
been targeted had he not been a member of the Democratic
Party. Shehu alleged for the first time at his hearing that the
gang was headed by the Governor. Substantial evidence
supports the IJ’s decision to disregard this testimony, as none of
Shehu’s previous filings made this allegation. Substantial
evidence also supports the IJ’s conclusion that the criminal gang
was not motivated by animus toward Shehu’s family,
particularly as Shehu adduced no evidence showing that family
members not involved in thwarting the robbery were threatened.
See Fatin v. INS, 12 F.3d 1233, 1239 (3d Cir. 1999).

        An applicant who establishes past persecution is “entitled
to a presumption that his life or freedom will be threatened if he
returns.” Gabuniya v. Att’y Gen., 463 F.3d 316, 321 (3d Cir.
2006); see 8 C.F.R. § 208.16(b)(1). The Government may rebut
this presumption by demonstrating by a preponderance of the
evidence that “[t]here has been a fundamental change in
circumstances such that the applicant’s life or freedom would
not be threatened . . . upon the applicant’s removal.” 8 C.F.R. §
208.16(b)(1)(i)(A) and (b)(1)(ii). Substantial evidence supports
the IJ’s conclusion that any presumption of a well-founded fear
of future persecution arising from Shehu’s 1991 imprisonment
is rebutted by the collapse of the Communist regime and the
eleven years during which Shehu was free from government
persecution.

       The IJ found that because Shehu had not shown an
objectively reasonable basis for his fear of persecution so as to

                               11
establish grounds for asylum, he had also not established the
clear probability of persecution required for withholding of
removal. See, e.g., Gabuniya v. Att’y Gen., 463 F.3d 316, 320-
21 (3d Cir. 2006).

        To demonstrate entitlement to relief under the CAT,
Shehu must show that he is “more likely than not” to be tortured
if he returns to Albania. 8 C.F.R. § 1208.16(c)(2). The torture
must be “inflicted by or at the instigation of or with the consent
or acquiescence of a public official or other person acting in an
official capacity.” 8 C.F.R. § 208.18(a)(1). No evidence in the
record compels the conclusion that Shehu is “more likely than
not” to be tortured with the consent or acquiescence of the
Albanian government upon his return.

       We will deny the petition for review.
