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


2-14-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4128




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                                                                 NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                    NO. 05-4128


                                   FILIP SOFTA,
                                                          Petitioner

                                          v.

               ATTORNEY GENERAL OF THE UNITED STATES;
                      BCIS DISTRICT DIRECTOR,
                                             Respondents


                        Petition for Review of an Order of the
                         United States Department of Justice
                            Board of Immigration Appeals
                                BIA No. A96-253-294
                         Immigration Judge: Eugene Pugliese


                     Submitted Under Third Circuit LAR 34.1(a)
                                December 4, 2005

                  Before: RENDELL and AMBRO, Circuit Judges,
                          and BAYLSON*, District Judge.

                             (Filed: February 14, 2007)




__________________

   * Honorable Michael M. Baylson, Judge of the United States District Court for the
     Eastern District of Pennsylvania, sitting by designation.
                               OPINION OF THE COURT


RENDELL, Circuit Judge.

       Filip Softa, a native and citizen of Albania who fled to the United States in 2002,

petitions for review of the denial by the Immigration Judge (“IJ”) and the Board of

Immigration Appeals (“BIA”) of his application for asylum, withholding of removal, and

protection under the Convention Against Torture (“CAT”). The IJ denied these claims

because Softa’s evidence was neither credible nor sufficient regarding the elements of

these claims. Subsequently, the BIA entered an order adopting the opinion of the IJ.

After a thorough review of the administrative record, we conclude that the IJ’s decision

was supported by substantial evidence, and we will accordingly deny the petition for

review.1

       We review the IJ’s determination when the Board has affirmed the IJ without

reasoning of its own. See Dia v. Ashcroft, 353 F.3d 228, 240 (3d Cir. 2003) (en banc)

(“[W]here the BIA directs us to the opinion and decision of the IJ who originally assessed




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   Additionally, Softa complains of the BIA’s affirmance without opinion procedure,
complaining that it constituted a violation of his Fifth Amendment due process rights.
We need not address this due process argument here, as we have previously determined
that the regulations providing for streamlining of cases by the BIA do not violate due
process. See Dia v. Ashcroft, 353 F.3d 228, 240 (3d Cir. 2003) (en banc) (“Certainly, the
BIA could have articulated its reasons for affirming the IJ’s order, but just because it had
the power to do so, does not mean the Constitution required it to exercise that power.”).

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[the] application, we review the IJ's opinion.”). We review the IJ’s determination for

substantial evidence. Dia, 353 F.3d at 247.

       Substantial evidence “is more than a scintilla, and must do more than create a

suspicion of the existence of the fact to be established.” Id. at 248 (quoting NLRB v.

Columbian Enameling & Stamping Co., 306 U.S. 292, 300 (1939)). “The Court will

uphold the agency’s findings of fact to the extent that they are ‘supported by reasonable,

substantial, and probative evidence on the record considered as a whole.’” Gao v.

Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002) (quoting Abdille v. Ashcroft, 242 F.3d 477,

483 (3d Cir. 2001)). Adverse credibility findings are reviewed for substantial evidence.

Id. “We cannot overturn a credibility finding simply because we would reach a different

opinion; rather, we must find that ‘any reasonable adjudicator would be compelled to

conclude the contrary.’” Shardar v. Ashcroft, 382 F.3d 318, 323 (3d Cir. 2004) (quoting 8

U.S.C. § 1252(b)(4)(B)). “If the IJ’s conclusion is not based on a specific, cogent reason,

but, instead, is based on speculation, conjecture, or an otherwise unsupported personal

opinion, we will not uphold it because it will not have been supported by such relevant

evidence as a reasonable mind would find adequate.” Dia, 353 F.3d at 250.

       In order to succeed on an asylum claim, the petitioner must show he is unable or

unwilling to return to his county 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). The petitioner must “show that he



                                              3
has a subjective fear of persecution that is supported by objective evidence that

persecution is a reasonable possibility.” Abdille v. Ashcroft, 242 F.3d 477, 496 (3d Cir.

2001). This may be based either upon past persecution, evidence of country conditions,

or other facts in the record indicating the likelihood of persecution upon return. In order

to be eligible for withholding of removal, the petitioner must demonstrate that it is more

likely than not that his life or freedom would be threatened in his country of return

because of the his race, religion, nationality, membership in a particular social group, or

political opinion. 8 U.S.C. 1231(b)(3)(A). Similarly, with respect to the CAT, the

petitioner must demonstrate that torture is more likely than not to be inflicted (for

whatever reason) upon his return. 8 C.F.R. 208(c)(2).

       Here, the IJ heard testimony from Softa with respect to instances of purported

persecution based upon his political views. Softa testified that he had been an active

member of the Democratic Party in Albania since 1992 and was a member of the board of

the Party and active in its affairs and organizing activities. In March 1997, according to

Softa, Communists began killing members of the Democratic Party and during that month

he was attacked after leaving a rally by three persons who wore masks. He was beaten

and his arm was broken. He did not know his attackers and they did not speak during the

attack. He went to a doctor and reported the incident to the police but nothing was done.

He testified that a few months thereafter he was attacked and held by the police for three

days. The stated month of this attack was different on his I-589 from what he testified,



                                              4
and he indicated that the information on the I-589 was not correct. Softa also testified

that in September of 1997 explosives destroyed the second floor and windows and doors

of his house. Softa stated that he left Albania in November 1997 and went to Greece,

where he stayed for one year before returning to Albania. Softa claimed that thereafter

he went into hiding until he obtained a visa to leave in 2002. He testified that he would

rather stay in prison in the United States than go back to Albania where his wife and

children live.

       Softa was the only person to testify in support of his claims, and the IJ found that

testimony vague, contradictory, lacking in detail, and ultimately not credible. Softa’s

asylum claim boiled down to two incidents: the beating by the three masked men and the

bombing of the second floor of his house. In Softa’s description of the beating, there was

no indication of who attacked him, the attackers’ political motivation, or their

membership in the government or a political party. The same was true with regard to the

bombing of his home. There were simply no facts to suggest that the bombing was

politically motivated or that politically motivated attacks would occur if Softa returned to

Albania. The IJ found the testimony to be “erratic [and] inconsistent,” in light of

inconsistencies with respect to the severity of his injury (was it a bruised arm or a broken

hand); his travel records (was he in Greece or was he not); the facts surrounding the

bombing (was it his uncle’s home, his home, or his grandfather’s home); and other

inconsistent statements.



                                              5
       The IJ also noted that, according to Softa, he had returned to Albania on two

occasions between 1997 and 2002 and managed to live in Albania for what appears to

have been four years apparently without any incident. Though Softa claimed he was in

hiding, the IJ found that this counseled against the likelihood that Softa would be

persecuted on his return.

       Moreover, the IJ noted that while there may have been problems in Albania in

1997, the Government had submitted documentation indicating that membership in the

Democratic Party in 2006 is unlikely to lead to persecution by the government or the

police. The country conditions note that the Democratic Party is a legitimate political

party that is free to campaign and carry out lawful activities.

       In light of the lack of proof of political motivation behind the two attacks cited by

Softa, his inconsistent statements, and the information before the IJ and the Court

regarding Albania’s country conditions, the IJ’s decision to deny asylum was supported

by substantial evidence. Taking the record as a whole, the IJ’s conclusions are

“‘supported by reasonable, substantial, and probative evidence.’” Gao v. Ashcroft, 299

F.3d 266, 272 (3d Cir. 2002) (quoting Abdille v. Ashcroft, 242 F.3d 477, 483 (3d Cir.

2001)). As the standard for asylum requests is lower than that for withholding of

removal, the IJ was correct to deny that claim as well. Similarly, there was no evidence

that it was more likely than not that Softa would be tortured if returned to Albania.




                                              6
      For the reasons stated above, the BIA’s order affirming the decision by the IJ will

be affirmed and the petition for review denied.




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