                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-6-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2690




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"Dalipaj v. Atty Gen USA" (2006). 2006 Decisions. Paper 1293.
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                                                          NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT



                                       No. 05-2690



                                   ERVIN DALIPAJ,

                                             Petitioner

                                              v.

                       ALBERTO R. GONZALES, ATTORNEY
                       GENERAL OF THE UNITED STATES,

                                            Respondent


                             On Appeal from the Board of
                          Immigration & Naturalization Service
                                BIA No. A96-264-319


                    Submitted Pursuant to Third Circuit LAR.34.1(a)
                                   March 27, 2006

               Before: MCKEE, VAN ANTWERPEN Circuit Judges and
                            POLLAK, District Judge*

                              (Opinion filed: April 6, 2006)




   *
     The Honorable Louis H. Pollak, Senior District Judge, United States District Court,
sitting by designation.
                                            OPINION


MCKEE, Circuit Judge

          Petitioner appeals from the Board of Immigration Appeals’ affirmance of the

Immigration Judge’s decision to deny his claim for political asylum and withholding of

removal. He also attempts to argue that his claim for relief under Article III of the

Convection Against Torture was improperly denied. For the reasons that follow, we will

affirm.

          Since we write primarily for the parties, we need not set forth the factual or

procedural background of this appeal. We have jurisdiction to review a final order of the

Board of Immigration appeals pursuant to § 242 of the Immigration and Nationality Act,

8 U.S.C. § 1252 (2000). Before the Immigration Judge, Dalipaj admitted the factual

allegations set forth in the Notice to Appear, and expressly declined to apply for

protection under Article III of the Convection Against Torture. On appeal he argues that

the BIA erred in upholding the Immigration Judge’s denial of withholding of removal and

asylum based upon his political opinion.

          Dalipaj is a citizen of Albania and testified to two incidents of harassment which

he attributes to his membership and involvement in the Albanian Democratic Party. His

claim of persecution rests upon a phone call he received from an unidentified caller

threatening harm because of a tee shirt he wore during a soccer game, and the fact that his


                                                2
tires were slashed by unidentified individuals the next day. He also states that he found a

chicken head in his locker at the soccer stadium with a note stating “you are next” or

words to that effect. JA 64-65. There were no other incidents from the last threat in April

2002 until he left Albania on June 11, 2002. Dalipaj admits that he never found out who

had harassed him, but blames “fanatics of the Socialist Party.” JA 65-67.

       Dalipaj must establish that he was subject to past persecution or has a well founded

fear of future persecution in order to qualify for asylum. 8 U.S.C. § 1101(a)(42)(A). A

“well founded fear” must be both subjectively genuine and objectively reasonable.

Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003). Even accepting petitioner’s

testimony, we agree that he has not established sufficient harassment to establish past

persecution or a well founded fear of future persecution based upon his political belief.

See Prasad v. Ins, 47 F.3d 336 (9th Cir. 1995). We realize that Dalipaj testified to being a

well known soccer star whose return to Albania would not go unnoticed. Nevertheless,

the incidents he is relying on to support his claim for relief fall short of the level of

severity required for an asylum claim. Thus, even if we assume argundo that government

agents or groups the government could not or would not control were responsible, the

record would still not support his claim for asylum. See Tariawally v. Ashcroft, 338 F.3d

180, 186 (3d Cir. 2003).

       Since Dalipaj can not establish an asylum claim, it is clear that the BIA did not err

in affirming the Immigration Judge’s denial of his claim for withholding removal. Denial

of his request for withholding of removal was also proper. “The standard for withholding

                                               3
of removal is higher than the standard for asylum . . . . If [Dalipaj] is unable to satisfy the

standard for asylum, he necessarily fails to meet the standard for withholding of removal

. . . . Lukwago v. Ashcroft, 329 F.3d 157, 182 (3d Cir. 2003).

       Accordingly, we will dismiss the petition for review.1




   1
     In his brief before us, Dalipaj argues that he is also entitled to relief under Article III
of the Convention Against Torture and that the Immigration Judge and BIA erred in
refusing that claim. However, he expressly waived that claim before the Immigration
Judge. See JA 51. Accordingly, we will not address that claim here.
                                               4
