                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-29-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-4099




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                                                      NOT PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT


                            No. 02-4099


                       PELLUMB QORRAJ,
                               Petitioner

                                 v.

                      JOHN ASHCROFT,
                 ATTORNEY GENERAL OF THE
                 UNITED STATES OF AMERICA,
                              Respondent


              On Petition for Review of an Order of the
               Immigration and Naturalization Service
                  Board of Immigration Appeals
                       (BIA No. A76-119-991)


                       Argued July 31, 2003

Before: SCIRICA, Chief Judge, RENDELL and AMBRO, Circuit Judges.

                      (Filed: January 29, 2004)


                                      Kimberly A. Rudolph     [ARGUED]
                                      Gay, Chacker & Mittin
                                      1731 Spring Garden Street
                                      Philadelphia, PA 19130

                                      Jewls C. Rogowska
                                      3718 Spring Garden Street
                                      Philadelphia, PA 19104
                                      Counsel for Petitioner
                                                  Michael P. Lindemann
                                                  Linda S. Wernery
                                                  Douglas E. Ginsburg
                                                  John D. Williams          [ARGUED]
                                                  U. S. Department of Justice
                                                  Office of Immigration Litigation
                                                  P.O. Box 878
                                                  Ben Franklin Station
                                                  Washington, DC 20044
                                                  Counsel for Respondent




                               OPINION OF THE COURT


RENDELL, Circuit Judge.

       Pellumb Qorraj petitions the court for review of the Attorney General’s denial of

his claims for relief from removal. Our jurisdiction arises under 8 U.S.C. § 1252(a). We

will deny the petition for review.




                                             I.

       Qorraj, a native of Albania, entered the country as a nonimmigrant with

authorization to remain in the country until December 19, 1998. When he remained

beyond that time, he was placed in removal proceedings. He conceded deportability, but

claimed that he was eligible for asylum, withholding of departure, and relief under the

Convention Against Torture (CAT) because of persecution on account of his political

opinion. At his hearing before the Immigration Judge (IJ), Qorraj testified that the



                                             2
persecution he alleged stemmed directly from his service in the Albanian army. Qorraj

was a member of the army since 1982, having received his first rank in 1992. At the time

of his hearing, he was a chief of a battalion in the army – holding the rank of captain –

and was 37 years old. He was the only person who testified at the hearing.

       The series of events that he alleged in support of his claims for relief began in

October, 1996, at a time when Albania was in domestic upheaval. According to Qorraj, a

secret service officer who was a very close relative to a deputy of the Democratic Party –

the party in power at the time – threatened him that, if he continued to vocalize the fact

that he “did not like the politics” of the army, he would be discharged from the army and

put in prison. Qorraj testified that he had “openly and courageously” shared his opinion

that “the military should be free of politics.”

       Qorraj further testified to various incidents more directly related to his service in

the army. The first of these occurred on Feb. 19, 1997. That day, while Qorraj was

carrying out a major’s order to protect the office of the mayor of Tirane, the Albanian

capital, he was given orders to shoot to kill anyone approaching either the mayor’s office

or the ministry of education. Because he believed that military regulations did not allow

him to shoot citizens, he requested that the major put this order in writing. The major

refused and reported Qorraj’s request to his supervising general. Later that day, Qorraj

was arrested by army policemen and was imprisoned for five days because his superiors

deemed him, as Qorraj put it, to be an “undisciplined member of the army.”



                                                  3
       After his release and a stint in the hospital due to weakness resulting from the

incarceration, Qorraj returned to work. A major, however, told him to go home and

placed Qorraj on leave. Qorraj believed that he was put on leave as a first step to

discharging him from the army. Nonetheless, he returned to command his battalion.

       On March 5, 1997, Qorraj’s battalion was ordered to go from its permanent

location in Tirane to Vlora “to crush the demonstrations” that had been taking place for

many days in the southern part of Albania. The demonstrations were led by members of

the Socialist Party. The description that Qorraj gave of the demonstrations makes them

out to be more like riots. Qorraj’s battalion was ordered to protect a certain area of the

city and to shoot to kill anyone who approached that area. Qorraj obeyed the order to go

to the area, but refused to order his men to kill anyone. When the demonstrators began to

shoot at his battalion, Qorraj ordered the men to shoot around (not at) the citizens in order

to scare them off. On March 11, 1997, more troops were brought in to fortify Qorraj’s

battalion. Qorraj seeing that it “was going to turn into a massive attack against the

protestors,” ordered that his troops withdraw. Qorraj told some army officers that he was

withdrawing because a massive attack would go against military regulations. As his

battalion withdrew, those army officers fired upon it, but no one was killed.

       Qorraj took his battalion to the town of Fier. There, the men asked for vehicles to

get to Tirane. Their requests were initially rebuffed. Eventually, though, the army did get

them vehicles, either, it appears, “because . . . they felt kind of obligated,” or “because



                                              4
they were scared of what could happen” if they decided otherwise. While at Fier, Qorraj

was told by a general to return to Vlora or the whole battalion would be imprisoned for

the rest of their lives. Qorraj still refused. Eventually, other divisions joined Qorraj’s

troops in refusing to fight.

       On March 12, 1997, the battalion returned to Tirane. Qorraj testified that the

battalion’s base was attacked by civilians, secret police, and representatives of the

Democratic Party. But a major refused to grant the battalion permission to use weapons

against the civilians. The soldiers soon fled as the civilians stole their weapons and

supplies.

       In June, 1997, Qorraj participated in discussions in Tirane as to what the military

should do in the newly stabilized country. He gave a speech to about 65-70 military

personnel conveying his belief that the army was too much of a political tool and should

not be used to further the ends of politicians. After the meeting, Qorraj received two

“threats” – which, based on Qorraj’s description, really were attacks. One of the “threats”

involved men shooting into his house. He assumed that the men were Democrats because

they were calling him a traitor. The second “threat” occurred on July 8, 1997. The

network through which the electricity to Qorraj’s family’s home ran was destroyed. The

people who did it were cursing at him and his family. He believed, without supporting

evidence, that the people were members of the Democratic Party.

       Qorraj’s family fled to Skrapar, and Qorraj “went into hiding.” He soon took a test



                                              5
at the U.S. embassy to see if he was eligible for a U.S.-sponsored advanced training

course in tanks at Fort Knox, Kentucky. He passed the test. He testified that he and the

chief of human resources of his brigade decided to keep his participation a secret, but

later testified that he was threatened at the airport that if he ever returned he would have

trouble, and that he thought members of the government knew of his participation. In any

event, Qorraj left Albania for the U.S. on April 13, 1998. His training ended Dec. 16 or

17, 1998. Although he testified that he had not intended to stay in the U.S. permanently,

he decided to remain in the U.S. after learning from his parents that people in Albania

were asking about him.

       Qorraj also testified that the Democratic Party is no longer in power, and that the

Socialists have come into power. Qorraj claimed to have problems with the Socialists,

but did not specify what exactly. Although he was never court-martialed and was never

demoted in rank, his position was lowered.




                                             II.

       The basic law underlying this petition is clear. The Attorney General, in his

discretion, may grant asylum to Qorraj if he meets the definition of “refugee” as defined

in the Act, i.e., an alien who is unable or unwilling to return to his home country “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. §



                                              6
1101(a)(42)(A). To qualify for withholding of removal, on the other hand, Qorraj must

show that, if deported, there is a “clear probability” – that is, it is “more likely than not” –

that he will be persecuted on account of a specified ground – here, political opinion – if

returned to his native country. See Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003).

If Qorraj “fails to establish the well-founded fear of persecution required for a grant of

asylum, he . . . will, by definition, have failed to establish the clear probability of

persecution required for withholding of deportation.” Id. at 469-70. To qualify for relief

under the Convention Against Torture, 1465 U.N.T.S. 85, 23 I.L.M. 1027 (1984), Qorraj

must prove that he is more likely than not to be tortured in Albania (the country of

removal). See Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir. 2003) (citing 8

C.F.R. §§ 208.16(c)(2) & (4))

       The Immigration Judge made clear his disbelief as to most of what Qorraj testified

to, noting that he found it “incredible” that Qorraj would disobey a major’s orders and

that Qorraj would refuse to fire on civilians that were firing on him. The IJ noted two

parts of Qorraj’s testimony that were contradictory: whether the military gave him

vehicles for his battalion at Tirane, and whether anyone other than a major knew that he

was attending tank school.

       The IJ also noted the lack of proof of persecution. Qorraj refused to carry out

military orders, but was only minimally punished for this, and, in fact, was allowed to

remain a part of the army. The IJ found no evidence linking the two “threats” on Qorraj’s



                                               7
home to the government or the Democratic Party. According to the IJ, Qorraj did not

articulate a sufficient basis for his belief. Moreover, the IJ concluded that any

persecution that Qorraj suffered was not due to his political opinion, but, rather, due to his

failure to comply with the orders of his superiors. As for the threats that his parents

relayed to Qorraj while he was in the U.S., the IJ found that they also were more likely the

result of his desertion of his duty than his alleged political opinion.

       The BIA affirmed without opinion under 8 C.F.R. § 3.1(a)(7) (2002). Qorraj’s

request for voluntary departure, however, was granted.

       Where, as here, the BIA affirms without opinion, we review the IJ’s decision to

address substantive challenges. Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002). We

initially review the administrative findings of fact for substantial evidence. INS v. Elias-

Zacarias, 502 U.S. 478, 481 (1992). We will only reverse if “any reasonable adjudicator

will be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Elias-

Zacarias, 502 U.S. at 481 n.1.

       Importantly, Qorraj does not take issue with the IJ’s finding that Qorraj testified

inconsistently as to the two specified aspects of his story. Instead, his basic argument is

that the IJ should have found that he was – or has a “well founded fear” that he will be –

persecuted on account of his political opinion. He also argues that there was a

presumption of future persecution based on his past persecution that the Government

never rebutted. Although he has articulated his alleged political opinion in various ways,



                                               8
it seems that it was best represented at oral argument as being that he was opposed to the

army’s practice of shooting at innocent civilians. Given our ruling, we need not decide

whether this qualified as a “political opinion,” but will assume so for purposes of our

analysis.1

       As the Supreme Court has made clear, Qorraj “must establish that he was a ‘well-

founded fear’ that [he] will [be] persecuted . . . because of that political opinion” in

order to establish eligibility for asylum. Elias-Zacarias, 502 U.S. at 483 (emphasis in

original). Qorraj has not convinced us that the IJ’s determination that Qorraj failed to

show that he was persecuted because of that political opinion was not supported by

substantial evidence. Qorraj himself testified that the problems he allegedly suffered did

not come as a result of his voicing opposition to the military policies, but, rather, as a

result of his refusal to carry out those policies, which, in the context, amounted to a

refusal to do his job or carry out orders. In addition, Qorraj has not demonstrated to us

that the IJ’s determination that he did not have a “well-founded fear” that he will be

persecuted because of his political belief was not based on substantial evidence. As the IJ

pointed out, there is no evidence other than Qorraj’s surmise that the people who attacked

his home were from the Democratic Party. Even if there was such evidence, it would not

support his claims because it would not satisfy the requirement that he show that the


       1
         Our court has interpreted the concept of “political opinion” broadly. See, e.g.,
Fatin v. I.N.S., 12 F.3d 1233, 1242 (3d Cir. 1993) (“[W]e have little doubt that feminism
qualifies as a political opinion within the meaning of the relevant statutes.”).

                                               9
complained-of persecution was at the hands of government actors or forces the

government is unable or unwilling to control. See Baballah v. Aschcroft, 335 F.3d 981,

987 (9th Cir. 2003). As Qorraj testified, the Democratic Party is no longer in power, but,

rather, the Socialists are. And, other than his brief testimony that he has some problems

with the Socialists, there is no evidence in the record that the Socialists would persecute

him. M oreover, we believe that the paucity of supporting testimony and documentation is

compounded by the IJ’s credibility concerns. See Abdulrahman, 330 F.3d at 597; see also

Gao, 299 F.3d at 272 (“Aliens have the burden of supporting their asylum claims through

credible testimony.”).

       We therefore will not disturb the IJ’s finding that Qorraj did not qualify for

asylum, and, a fortiori, his refusal to grant Qorraj withholding of removal. See Zubeda,

333 F.3d at 469-70. For the same reasons, we cannot conclude that substantial evidence

did not support the IJ’s determination that Qorraj did not qualify for relief under CAT.

There was substantial evidence in the record for the IJ to conclude that Qorraj was not

“more likely than not” to be tortured if he returns to Albania.




                                            III.

       Qorraj also levels an attack against the streamlining review procedure of the BIA

under 8 C.F.R. § 3.1(a)(7)(2002). He argues that it is unconstitutional because it violates

procedural due process protections guaranteed by the Fifth Amendment. See U.S. Const.



                                             10
amend. V. However, as we recently concluded, “the streamlining regulations do not

violate the Due Process Clause of the Constitution.” Dia v. Ashcroft, 2003 WL

22998113, at *5 (3d Cir. Dec. 22, 2003). Thus, we reject Qorraj’s challenge.

      Accordingly, the petition for review will be denied.




                                                /s/ Marjorie O. Rendell
                                                Circuit Judge




                                           11
