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


4-29-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4816




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                                                      NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                           No. 03-4816




                        ARDIAN XHEKO,
                                  Petitioner

                                 v.

                  *ALBERTO R. GONZALES,
              Attorney General of the United States,
                                                Respondent

       (*Substituted pursuant to Rule 43(c), Fed. R. App. P.)




       On Petition for Review of a Decision and Order of the
                   Board of Immigration Appeals
                      (BIA No. A78-719-131)


         Submitted Pursuant to Third Circuit LAR 34.1(a)
                        March 11, 2005

Before: SCIRICA, Chief Judge, ROTH and FUENTES, Circuit Judges

                      (Filed: April 29, 2005)




                   OPINION OF THE COURT
SCIRICA, Chief Judge.

       Petitioner Ardian Xheko seeks review of the Board of Immigration Appeals’ (BIA)

decision affirming the decision of the Immigration Judge (IJ) to deny his application for

asylum and withholding of removal and his claim under the Convention Against Torture

(CAT). We will affirm.

                                              I

       Xheko, a native and citizen of Albania, was stopped trying to enter the United

States without a valid visa. Shortly thereafter, he filed an application for asylum with the

INS. Xheko was interviewed by an asylum officer and referred for removal proceedings.

On March 13, 2001, the INS served Xheko with a Notice to Appear, charging him with

deportability as an alien who was inadmissible at the time of entry for lack of a valid

immigrant visa or travel document.

       At removal proceedings, Xheko conceded his deportability and applied for asylum,

general withholding of removal, and withholding of removal pursuant to the CAT.

Briefly summarized, Xheko claimed that on several occasions between 1990 and August

2000, when he left Albania, he was arrested, beaten by police, urinated on while in police

custody, and threatened with guns because of his support for the promonarchist Legality

Party. Based on inconsistencies between Xheko’s testimony and application asylum, the

IJ concluded that Xheko had fabricated his testimony and found him deportable and

ineligible for asylum, general withholding of removal, or CAT protection. Alternatively,



                                             2
the IJ found no evidence that Xheko had ever been persecuted by the Albanian

government. The IJ also concluded, in the alternative, that there had been a fundamental

change in circumstances in Albania, because of which Xheko would not have a well-

founded fear of persecution should he return. Finally, the IJ found Xheko’s asylum

application frivolous. The IJ ordered that Xheko be removed to Albania.

       Xheko appealed that ruling to the BIA, making two arguments. First, he argued

that the IJ had wrongly found that Xheko’s asylum application was frivolous. Second, he

argued that he had suffered past persecution in Albania. In a written opinion dated

December 2, 2003, the BIA reversed the IJ’s finding as to frivolity but affirmed the IJ’s

findings of ineligibility for asylum, withholding of removal, and CAT protection.

Specifically, the BIA held that Xheko had failed to carry his burden of proof. It also

upheld the IJ’s adverse credibility determination.

                                             II

       BIA determinations are upheld if they are “‘supported by reasonable, substantial,

and probative evidence on the record considered as a whole.’” INS v. Elias-Zacarias, 502

U.S. 478, 481 (1992) (quoting 8 U.S.C. § 1105a(a)(4)). “We will reverse only if the

evidence not only supports a contrary conclusion, but compels it.” Guo v. Ashcroft, 386

F.3d 556, 561 (3d Cir. 2004) (quotation marks and alteration omitted). A petitioner for

asylum bears the burden of supporting his claim through credible testimony. Gao v.

Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). An adverse credibility finding by the



                                             3
immigration judge should be supported by a specific, cogent reason for the disbelief in

petitioner’s testimony. Balasubramanrim v. INS, 143 F.3d 157, 161-62 (3d. Cir. 1998).

       Contending here that the BIA erred, Xheko argues that the IJ’s adverse credibility

determination was not supported by substantial evidence. Though the BIA affirmed the

IJ’s adverse credibility finding, it is not clear whether Xheko presented this argument to

the Board. If it is unexhausted, we would be barred from considering it. 8 U.S.C.

§ 1252(d)(1); Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003).

Nonetheless, it is clear the BIA ruled on it. In any event, as we discuss, Xheko’s

argument is meritless.

       In finding Xheko’s testimony not credible, the IJ cited several inconsistencies

between Xheko’s testimony and asylum application. For example, Xheko testified that

government agents attacked his apartment, but that incident does not appear in his

application. Though prompted by his attorney on direct examination, Xheko failed to

mention that in December 1990 he was arrested and beaten by the police, who threatened

his life. This allegation appears in Xheko’s application. Xheko contradicted his

application by testifying that he was arrested by three undercover officers in January

2000; his application states that that incident occurred in January 1999. Xheko also

testified that on July 29, 2000, he was arrested at a coffee shop where a Legality

Movement meeting was being held. He was taken into a dark room where an unidentified

man shot a gun at him. His application, however, states that Xheko was urinated on



                                             4
during this incident, not shot at. According to Xheko’s testimony, however, he was

urinated on during a different incident.1 The IJ considered Xheko’s explanations for the

inconsistencies and found them inadequate. As nothing in the record shows otherwise,

we hold that substantial evidence supports the IJ’s adverse credibility finding. Xheko’s

claims for asylum, withholding of removal, and CAT relief therefore fail.

                                             III

       For the foregoing reasons, we conclude that substantial evidence supports the IJ’s

findings and the BIA’s decision. We will affirm the BIA’s decision and order and deny

the petition for review.




   1
    Xheko’s brief to the BIA, prepared by his attorney, states, “Although [Xheko] had
some lapses in memory and was evidently confused as to some dates, he was not
deliberately fabricating his testimony. . . . Clearly there are some problems in the case to
justify a denial of asylum, but to find this application frivolous was a clear abuse of
discretion.” (App. at 9.)

                                              5
