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


4-27-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4628




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                                                    NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                       NO. 03-4628
                                    ________________

                                 MERITA GJOK DODAJ,

                                                Petitioner

                                               v.

                                ATTORNEY GENERAL
                               OF THE UNITED STATES *

                       ____________________________________

                           On Petition for Review of an Order
                           of the Board of Immigration Appeals
                                (Agency No. A76-142-573)
                      _______________________________________
                        Submitted Under Third Circuit LAR 34.1(a)

                    Before: Alito, McKee and Cowen Circuit Judges.

                                   (Filed: April 27, 2005)

                                _______________________

                                       OPINION
                                _______________________

PER CURIAM

        Merita Gjok Dodaj, a native and citizen of Albania, petitions for review of the

final order of the Board of Immigration Appeals (“BIA”). For the reasons that follow we


   *
       Caption amended pursuant to Rule 43(c), Fed. R. App. Pro.
will grant the petition and remand to the BIA for further proceedings.

                                             I.

       Dodaj and her husband attempted to enter the United States with false passports in

1999. Dodaj conceded her removability for attempting to enter the United States without

proper documents, and sought asylum and withholding of removal. The Immigration

Judge (“IJ”) found Dodaj’s testimony not credible and denied her application for relief.1

The BIA affirmed by opinion dated February 12, 2003, agreeing with the IJ’s adverse

credibility finding and declining to address the merits of the asylum claim. The BIA

noted that although there may have been explanations for some of the inconsistencies

cited by the IJ, there were nonetheless other important problems that remained

unexplained. Dodaj now petitions for review pro se.2 As we write solely for the parties,

we will not set forth the detailed factual background of this appeal.

                                             II.

       Although the BIA noted that some of the inconsistencies identified by the IJ may

have been questionable, it did not specify which inconsistencies were problematic and

essentially deferred to the IJ’s findings. Accordingly, we review the IJ’s adverse

credibility finding. See Abdulai v. Ashcroft, 239 F.3d 542, 549 n.2 (3d Cir. 2001).


   1
     Although the removal proceedings for Dodaj and her husband were conducted
together, only Dodaj’s petition for review is presently before the Court.
   2
     Dodaj filed the petition for review in the Court of Appeals for the Second Circuit,
which transferred it to this Court. As the IJ completed the removal proceedings in New
Jersey, venue lies with this Court. 8 U.S.C. § 1252 (b)(2).

                                             2
Adverse credibility findings are reviewed under the substantial evidence standard,

whereby we uphold the credibility determination unless the record evidence compels a

reasonable factfinder to make a contrary determination. Chen v. Ashcroft, 376 F.3d 215,

222 (3d Cir. 2004). However, we will affirm only if the determination is based on

“specific, cogent reasons” that are “appropriately based on inconsistent statements,

contradictory evidences, and inherently improbable testimony ... in view of the

background evidence on country conditions.” Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir.

2003) (quotations omitted). Adverse credibility determinations “based on speculation or

conjecture, rather than on evidence in the record, are reversible.” Id.

                                             III.

       The IJ’s adverse credibility determination was based on purported discrepancies in

and the circumstances surrounding Dodaj’s Democratic Party membership card. Upon

review, we find that the IJ’s conclusions about the membership card are not supported by

the record. The IJ’s faulting of Dodaj for not knowing when the membership card was

issued failed to take into account the male-dominated nature of Albanian culture and, in

particular Northern Albania where Dodaj lived. See A.R. 416, 673, 820. The IJ’s

conclusion that Dodaj’s card was fraudulent because it was numbered consecutively to

her husband’s card that was issued a year later was speculative, particularly in light of the

testimony that Dodaj and her husband had been registered as married and Dodaj was

using her husband’s name at the time her card was issued. See A.R. 345-46, 382, 384.



                                              3
The IJ’s view that being a member of a political party consists of more than having a

relative bring you a membership card failed to consider Dodaj’s explanation that she

presented the card as evidence of her belief in democracy, A.R. 417, as opposed to

demonstrating active participation in the party. Lastly, the IJ’s reliance on the lack of

corroborating evidence that Dodaj had otherwise used her husband’s name prior to the

family marriage ceremony was not based on a proper analysis of the need for and/or

ability to provide corroborating evidence. See Dia, 353 F.3d at 253 (requiring IJ to (1)

identify the facts for which it is reasonable to expect corroboration; (2) determine whether

corroboration has been provided; and (3) determine whether an adequate explanation has

been given for failing to provide corroboration). Accordingly, we will reverse the

adverse credibility determination.

       The BIA did not reach the merits of the asylum and withholding of removal

claims, and therefore we will remand the matter to the BIA for further proceedings. The

government’s motion for summary affirmance is denied.




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