                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-29-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2684




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                                                              NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                      No. 07-2684


                                   JULIAN LESKAJ,
                                                       Petitioner
                                           v.

                             ATTORNEY GENERAL OF
                              THE UNITED STATES,
                                              Respondent




                         On a Petition For Review of an Order
                         of the Board of Immigration Appeals
                               Agency No. A79-042-927
                          Immigration Judge: Mirlande Tadal


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 16, 2008

              Before:    AMBRO, FISHER, and JORDAN, Circuit Judges

                            (Opinion filed: April 29, 2008)


                                       OPINION


PER CURIAM

      Petitioner Julian Leskaj, a native and citizen of Albania, was served with a Notice

to Appear on August 28, 2001, alleging that he entered the United States two days before
near Eagle Pass, Texas without being admitted or paroled and was thus removable under

Immigration & Nationality Act (“INA”) § 212(a)(6)(A)(i). At a Master Calendar hearing

Leskaj admitted these facts. In May 2002, he submitted his original applications for

asylum under INA § 208(a), 8 U.S.C. § 1158(a), and withholding of removal under INA §

241(b)(3), 8 U.S.C. § 1231(b)(3), and the Convention Against Torture, 8 C.F.R. §§

1208.16(c), 1208.18, claiming a fear of persecution on account of political opinion. An

amended version of his asylum application was admitted during his 2005 removal

hearing. Leskaj claimed that, as a former member of the Democratic Party in Albania, he

fears being killed by the Albanian police, the ranks of which are dominated by extremist

Socialist sympathizers.

      Leskaj testified that, in 1997, he and his parents were active members of the

Democratic Party, participating in various demonstrations, providing financial assistance,

and even assisting the Chairman of the party in Elbasan, where his family lives. His

father was an officer in the army until 1989, and his mother worked at the army base.

Thereafter, his parents owned a store. Albania was plagued by lawlessness. There was

no government and civilians were armed. The Socialist Party was the governing party in

Albania. On May 22, 1997, Leskaj was attacked by masked members of the Albanian

police. They jumped out of a van and accosted him as he walked home from the store,

and kicked and hit him. The attack lasted a minute. His attackers, who were carrying

automatic weapons, told him not to assist or support the Democratic Party or they would



                                            2
kill him. Leskaj suffered large and deep cuts to his chin and toes, which required stitches

and resulted in scarring. He went to a hospital the next day for treatment and was under a

physician’s care for a month. His father reported this incident to the chairman of the

Democratic Party in the Elbasan District, but he did not pursue a complaint with the

Albanian police for obvious reasons.

       Leskaj went to Greece on a visa after this incident, but was deported by the Greek

government when the visa expired. Again he obtained a visa and again he returned to

Greece for a year and a half. When this visa expired, he again was returned to Albania.

He remained in Albania for one year before coming to the United States. Leskaj testified

that he left Albania for good when, after returning from Greece the second time, he was

followed by the police on two or three occasions. With respect to the issue of future

persecution, Leskaj testified that he is afraid to return to Elbasan because the Socialist

Party is in control there. He believes that the police who attacked him in 1997 will

recognize him and target him, and that extremist Socialists do this sort of thing with

impunity. He also fears that his return will endanger his parents, who otherwise have

been unharmed since he left.

       Leskaj offered exhibits in support of his claim for asylum: two Certificates from

the Chairman of his party in the Elbasan District, stating that he had been menaced and

threatened with death by Communists on account of his active participation in the 1997

election campaign, and a physician’s note indicating that he had been treated for an injury



                                              3
to his jaw and the toes of his right foot on May 23, 1997.

       On cross-examination, the government established that Leskaj had omitted any

reference to the May 1997 beating in his original asylum application. Leskaj explained

that this was due to his belief that he ultimately would seek adjustment of status on the

basis of his marriage on August 14, 2002, rather than seek asylum. (He and his wife have

since separated). In addition, the Administrative Record contains the State Department’s

Country Report on Human Rights Practices for Albania for 2004. It states that municipal

elections took place in 2003, and they met basic democratic standards. The Democratic

and Socialist parties held the majority of seats in the Parliament.

       The Immigration Judge found Leskaj removable as charged and denied relief. She

found that Leskaj was not credible on the basis of omissions and inconsistencies in his

case for relief. In his first application, he failed to make reference to the pivotal incident

in May 1997, and his explanation for the omission – that he was hoping to adjust his

status on the basis of his marriage – made little sense in that he was, at that time, still

single, and, in any event, he had managed to make reference to other events that caused

him to seek asylum.1 Furthermore, the letter he offered from the Chairman of the

Democratic Party made no reference to the May 1997 beating. Finally, the incidents of




   1
     The original application states that the family received anonymous death threats over
the telephone during the 2001 elections, and that the windows in the family store were
broken.


                                               4
menacing that caused him to leave Albania once and for all were omitted from the

amended application and statement.

       However, even assuming that his testimony was credible, the IJ concluded that

Leskaj did not meet his burden of establishing either past persecution or a well-founded

fear of future persecution on the basis of his membership in the Democratic Party. The IJ

noted that, although Leskaj twice departed Albania (for Greece) after the 1997 incident,

he returned each time and there were no further incidents. Furthermore, he pointed out

that one remote and isolated incident by itself could not establish a basis for granting

asylum or withholding of removal under the statute. The IJ also concluded that

circumstances had changed enough in Albania, with the rise to power of the Democratic

Party, that Leskaj could not show a well-founded fear of persecution. There was no

evidence that the Democratic Party would not be able to protect him from extremists in

the Socialist Party. In addition, he had no evidence to show that he would be tortured by

the Socialist Party-dominated Albanian police if he returned to Albania. Leskaj appealed.

       On May 8, 2007, the Board of Immigration Appeals dismissed the appeal. The

Board concluded that the IJ’s factual findings were free of clear error, 8 C.F.R. §

1003.1(d)(3)(i), and agreed that Leskaj had failed to carry his burden of proof, failed to

provide consistent and credible testimony, and thus failed to establish his eligibility for

any of the forms of relief. The Board also upheld the IJ’s alternative finding that, even if

Leskaj established past persecution, the government successfully rebutted the



                                              5
presumption of future persecution. Finally, Leskaj’s testimony and corroborative

evidence did not establish that it is more likely than not that he would be tortured in

Albania. Leskaj timely petitioned for review.

       We will deny the petition for review. We have jurisdiction to review final orders

of removal pursuant to 8 U.S.C. § 1252(a)(1). Where the Board renders an opinion that

sets forth grounds of decision independent of those relied on by the IJ, we review only the

Board’s decision and not that of the IJ, see Xie v. Ashcroft, 359 F.3d 239, 240 (3d Cir.

2004), but where, as here, the Board adopted the IJ's reasoning explicitly or implicitly in

disposing of the contentions on appeal, we also review the IJ's opinion, id. at 242. The

Board’s factual determinations are upheld if they are supported by reasonable, substantial,

and probative evidence on the record considered as a whole. Immigration &

Naturalization Serv. v. Elias-Zacarias, 502 U.S. 478, 481 (1992). Whether an applicant

for asylum has demonstrated past persecution or a well-founded fear of persecution is a

factual question which is reviewed under the substantial evidence standard. See Gao v.

Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002).

       We also review an adverse credibility determination under the substantial evidence

standard. Xie, 359 F.3d at 242. Under this deferential standard of review, we must

uphold the credibility determination unless “any reasonable adjudicator would be

compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Put another way, we

are required to sustain an adverse credibility determination “unless no reasonable person



                                              6
would have found the applicant incredible.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.

2004) (internal quotations and citation omitted). We uphold adverse credibility

determinations based on omissions and discrepancies that go to the heart of a petitioner’s

claim. Id. at 224.

       An applicant for asylum has the burden of establishing that he is unable or

unwilling to return to his home country “because of [past] persecution or a well-founded

fear of future persecution on account of race, religion, nationality, membership in a

particular social group, or political opinion[.]” 8 U.S.C. § 1101(a)(42)(A); see 8 C.F.R. §

1208.13(a); Abdille v. Ashcroft, 242 F.3d 477, 482 (3d Cir. 2001). The alien bears the

burden of proof. Id. To establish eligibility on the basis of past persecution, an alien

must show that he suffered some harm rising to the level of persecution on account of a

statutorily protected ground, and that it was committed by the government or forces the

government is unwilling to control. Gao, 299 F.3d at 272. An alien who establishes past

persecution enjoys a presumption of a well-founded fear of future persecution, Lukwago

v. Ashcroft, 329 F.3d 157, 174 (3d Cir. 2003), but if the alien cannot show past

persecution, he may still establish a well-founded fear of future persecution by

demonstrating a subjective fear of persecution, and that a reasonable person in the alien’s

circumstances would fear persecution if returned to the country in question, Zubeda v.

Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003).

       We conclude that substantial evidence supports the Board’s and IJ’s determination



                                              7
that the omissions and inconsistencies in his case for relief go to the heart of Leskaj’s

claim, and cast doubt on the key issue of whether he actually experienced past persecution

or will experience future persecution in Albania. Leskaj contends in his brief that the IJ

did not give proper weight to his corroborating evidence and thus her adverse credibility

finding is not supported by substantial evidence. Leskaj argues that reading the

corroborating evidence as a whole, the omission by the Chairman of the Democratic Party

of any reference to the May 1997 incident was trivial because the injury report credibly

establishes that he received injuries to his face and foot, and the Certificates credibly

establish that he was menaced and threatened by the political opposition on account of his

political activities.

       We observe that this argument has some force, but Leskaj undeniably omitted the

May 1997 incident from his original asylum application, and when confronted with this

omission, he explained that adjustment of status was his true aim. This explanation falls

short of redeeming his credibility because he reported other events in his original asylum

application – the anonymous telephone threats and the broken windows – which laid the

basis for his political asylum claim. Furthermore, he omitted from his amended

application any reference to the fact that he finally left Albania because he was being

menaced by members of the police. These omissions alone would lead us to uphold the

adverse credibility determination under the deferential standard of review, even if we

agreed with Leskaj that the Chairman’s failure to specifically mention the May 22, 1997



                                              8
beating in the Certificates was trivial and simply does not bear on his credibility in view

of the medical report documenting treatment for injuries on May 23, 1997.

       We further conclude that, even assuming that Leskaj testified credibly, a single

beating that does not result in a serious physical injury does not compel reversal of the

Board's decision that he did not suffer past persecution. See Voci v. Gonzales, 409 F.3d

607, 615 (3d Cir. 2005); see also Dandan v. Ashcroft, 339 F.3d 567, 573-74 (7th Cir.

2003) (addressing single three-day detention in which respondent was deprived of food

and suffered swollen face as result of beatings). Because Leskaj cannot show past

persecution, he is not entitled to the presumption of a well-founded fear of future

persecution. Furthermore, the record substantially supports that the Department of

Homeland Security rebutted the presumption of a well-founded fear of persecution

insofar as the 2004 Country Report establishes the rise of the Democratic Party within

Albania, and with that, the willingness and ability of the Albanian government to protect

Leskaj from the lawlessness of a rival political party. In short, we are not compelled to

disagree with the Board and IJ in light of the Country Report, which describes improving

political relations and which does not cite instances of Democratic Party members being

singled out for persecution.

       The more exacting standard for withholding of removal under INA § 241(b)(3)(A),

8 U.S.C. § 1231(b)(3)(A), is: "the Attorney General may not remove an alien to a country

if the Attorney General decides that the alien's life or freedom would be threatened in that



                                              9
country because of the alien's race, religion, nationality, membership in a particular social

group or political opinion." The alien must establish by a "clear probability" that his life

or freedom would be threatened in the proposed country of deportation. Immigration &

Naturalization Serv. v. Stevic, 467 U.S. 407 (1984). Because Leskaj failed to show past

persecution or a reasonable fear of future persecution under the lower burden of proof

required for asylum, he is necessarily ineligible for withholding of removal. See

Immigration & Naturalization Serv. v. Cardoza-Fonseca, 480 U.S. 421, 430-32 (1987).

       To prevail on a claim under the Convention Against Torture an applicant must

“establish that it is more likely than not that he or she would be tortured if removed to the

proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). The IJ found, and the Board

agreed, that Leskaj did not submit any evidence that supports a finding that he will more

likely than not be tortured if returned to Albania. The Board held that he failed to provide

either testimonial or corroborative evidence showing that he is entitled to relief under the

CAT. We conclude that the record does not compel a different conclusion.

       For the foregoing reasons, we will deny the petition for review.




                                             10
