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


12-20-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4154




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                                                   NOT PRECEDENTIAL
                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 04-4154


                                    NJAZI ARAPAJ,
                                          Petitioner

                                            v.

                         *ALBERTO GONZALES,
                ATTORNEY GENERAL OF THE UNITED STATES,
                                          Respondent

                        *(Amended pursuant to F.R.A.P. 43(c))


                         Petition for Review of an Order of the
                          United States Department of Justice
                             Board of Immigration Appeals
                                (BIA No. A79-043-029)


                      Submitted Under Third Circuit LAR 34.1(a)
                            Submitted December 5, 2005

        Before: RENDELL, FISHER and VAN ANTWERPEN, Circuit Judges.

                               (Filed December 20, 2005)


                              OPINION OF THE COURT


RENDELL, Circuit Judge.

      Njazi Arapaj, on his own behalf and that of his family, petitions for review of a

decision by the Board of Immigration Appeals (“BIA”) affirming the decision of the
Immigration Judge (“IJ”) in denying Arapaj’s application for asylum, withholding of

removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction

under 8 U.S.C. § 1252. Inasmuch as we find that substantial evidence in the record

supports the agency’s finding, we will deny Arapaj’s petition for review.

       After a hearing in which Arapaj presented testimony in support of his claim, the

immigration judge made an adverse credibility determination, finding that Arapaj had not

testified credibly, and thus had not carried his burden of proof with respect to establishing

eligibility for asylum. The BIA affirmed the IJ’s decision per curiam and without

opinion.

       Arapaj challenges the IJ’s adverse credibility determination. Where, as here, the

BIA affirms the IJ’s decision without opinion, we review the IJ’s decision. Partyka v.

Attorney General, 417 F.3d 408, 411 (3d Cir. 2005). An adverse credibility

determination is a factual finding reviewed under the substantial evidence standard. Dia

v. Ashcroft, 353 F.3d 228, 247 (3d Cir. 2003) (en banc). Under this standard,

“administrative findings of fact are conclusive unless any reasonable adjudicator would

be compelled to conclude to the contrary.” Id. (quoting 8 U.S.C. § 1252(b)(4)(B)).

“Thus, the question whether an agency determination is supported by substantial evidence

is the same as the question whether a reasonable fact finder could make such a

determination based upon the administrative record.” Id. at 249.

       Njazi Arapaj, his wife, and three children are natives and citizens of Albania.

Arapaj brought his wife and three sons into the United States without authorization on or

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about October 20, 2001, across the Mexican border with Texas. On October 24, 2001, the

Immigration and Naturalization Service (“INS”) issued to Arapaj a Notice to Appear for

removal proceedings. Arapaj applied for asylum, withholding of removal, and requested

protection under the CAT.

       At the hearing before the IJ, Arapaj testified that he was a well-known and active

member of the Democratic Party of Albania. As a result of his political activities,

attempts were made on his life and the lives of his children. He was repeatedly

threatened, abducted, tortured, and beaten for his political activism. His children were

also beaten and an attempt was made to abduct them. Twice, he was forced to take his

family into hiding. His political activities aside, Arapaj’s family was a well-known anti-

communist family. As a result, their property was taken from them and his father and

oldest brother were forced to work in the mines of Selica. The danger to himself and his

family from the political opponents of the Democratic Party caused Arapaj to take his

family and seek asylum in the United States.

       The IJ cited a number of concerns and discrepancies with respect to Arapaj’s

testimony. We need focus only on one, which we believe provides substantial evidence

for the IJ’s adverse credibility determination, namely the omission of arrests in Arapaj’s

initial application.

       First, we note that Arapaj submitted two separate affidavits in this case, an initial

statement dated August 14, 2002, and a supplemental affidavit dated August 1, 2003. The

second affidavit purports to be more complete and to correct errors in dates contained in

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the first statement. Both affidavits were submitted prior to Arapaj’s removal hearing and

the IJ’s decision.

       Arapaj’s first affidavit was five pages long, contained thirty-one paragraphs, and

was prepared with the assistance of an attorney provided by Catholic Social Services. It

contained no mention of the October 2000 or June 2001 arrests. Arapaj’s second

affidavit, submitted almost a year later, however, contained descriptions of these

incidents. Of the October 2000 arrest, Arapaj stated:

       Three days before the October 1 election, Special Forces came to the house at
       about 4:00 in the afternoon. The family was home. Six officers kicked open
       the door, took out their weapons, told the family not to move and grabbed me
       and took me downstairs to their car.... I was taken to the Vlore police station
       for twenty four hours. They interrogated me about my party work as an
       activist. They wanted to know our organizing plans, where we met, how many
       of us. I was handcuffed to a chair and beaten by an officer who stood behind
       me, if I refused to answer the questions from the interrogator. I saw no doctor
       but took pain killers for the pain.

Arapaj Affidavit at 7. Of the June arrest, Arapaj stated: “I was picked up for twenty four

hours and tortured badly. The police hung me by my arms without my feet touching the

floor....” Id. Arapaj elaborated during the hearing: “I was naked, my whole body was

showing and they hung me from my hands and my feet were not touching the ground, they

were barely, just a little bit.” Hearing Tr. at 54.

       Despite their horrific nature, neither of these episodes was mentioned in Arapaj’s

initial affidavit, though numerous less recent and less dramatic events were included. In

viewing this omission (along with the omission of two other arrests), the IJ observed: “[I]t

is impossible for this Court to reconcile how, at minimum, the specific events that largely

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motivated the respondent’s departure, namely his four arrests and most importantly the

allegedly horrific manner in which he was hung upside down naked and abused by security

forces in Albania would have somehow not made it to the preparation of the content of the

first application for asylum.” Oral Dec. at 32-33. We agree with the IJ that it is difficult to

imagine how Arapaj could have forgotten to include these arrests in his initial thirty-one

paragraph affidavit. This omission was not incidental or ancillary; rather, the arrests and

ensuing abuse go to “the heart of the asylum claim.” Gao v. Ashcroft, 299 F.3d 266, 272 (3d

Cir. 2002).

        While in the context of the facts before us, we note that this omission is sufficient to

support the IJ’s adverse credibility finding under the substantial evidence standard, we note

that the IJ identified several additional inconsistencies among petitioner’s testimony and

affidavits, including a discrepancy as to the month when gunmen allegedly assaulted his

home.

        Upon review of the IJ’s decision and of the record of this case, we conclude that a

reasonable adjudicator would not be compelled to make contrary findings. We hold that the

IJ’s adverse credibility determination, adopted by the BIA, was supported by substantial

evidence. Accordingly, we will deny the petition for review.




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