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


12-27-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4617




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                                                                   NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 03-4617


                               AFERDITA HOXHOLLI,

                                                      Petitioner

                                           v.

                    JOHN ASHCROFT, ATTORNEY GENERAL
                          OF THE UNITED STATES,

                                                      Respondent


                        On Petition for Review of a Final Order
                         of the Board of Immigration Appeals
                                  (No. A79-325-565)


                      Submitted Under Third Circuit LAR 34.1(a)
                                 December 13, 2004

       Before: AMBRO, VAN ANTWERPEN and STAPLETON, Circuit Judges

                          (Opinion filed: December 27, 2004)




                                       OPINION


AM BRO, Circuit Judge

      Aferdita Hoxholli appeals the affirmance by the Board of Immigration Appeals

(“BIA”) of the decision by an Immigration Judge (“IJ”) denying her application for
asylum and withholding of removal. Hoxholli is a citizen of Albania who entered the

United States with a visitor visa on September 24, 2000. She overstayed her visa and, on

October 30, 2001, the Immigration and Naturalization Service (“INS”)1 charged her with

removal under Immigration and Nationality Act (“INA”) § 237(a)(1)(B), 8 U.S.C. §

1227(a)(1)(B). Hoxholli conceded removability and sought relief in the form of asylum

and withholding of removal.2 The IJ denied both claims in an oral decision. Hoxholli

appealed to the BIA, which affirmed without opinion the IJ’s decision.

      We have jurisdiction to review Hoxholli’s petition for review under INA § 242, 8

U.S.C. § 1252. Where, as here, the BIA summarily affirms the IJ’s decision, we review

that decision. Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003) (en banc). For the

reasons given, we deny Hoxholli’s petition.

                                    Factual History

      Hoxholli testified before the IJ as follows. In 1992 she became a supporter of the

Democratic Party (“DP”) in Albania and began attending meetings with her brothers.


      1
        On March 1, 2003, the INS ceased to exist as an agency within the Department of
Justice and the INS's functions were transferred to the Department of Homeland Security.
See Homeland Security Act of 2002, Pub. L. No. 107-296 §§ 441, 451 & 471, 116 Stat.
2135.


      2
        Hoxholli also applied for relief under the Convention Against Torture (United
Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, implemented in the United States by the
Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, § 2242, 112
Stat. 2681-761 (codified at 8 U.S.C. § 1231)), but later dropped that claim.

                                              2
The DP, under the leadership of Sali Berisha, was in power in Albania from 1992 to

1997. Hoxholli became a formal dues paying member of the DP in May 1998, after the

Socialists took back power from the DP.

       In the beginning of 2000, Hoxholli and one of her brothers (two brothers, Artori

and Florenci, were involved with her DP activities) received two anonymous letters

threatening harm if they continued to support the DP. In February 2000 anonymous

callers three times threatened to destroy their family unless Hoxholli and her brothers

ceased their DP activities. In June 2000 she was arrested at a DP protest. She was

detained for seven hours and interrogated by a police inspector. When Hoxholli replied

to a question that she wanted democracy in Albania, the inspector grabbed her by the

hair, hit her in the face, and demanded to know “Why should a woman be involved in

politics? Why are you doing this?” Before the officers released her, they threatened that

she would be physically harmed if she continued to support the DP.

       Following this interrogation, the store where she worked as a seamstress was

bombed. She reported the bombing to the police, who told her that they would not help,

and that she should go to DP leader Berisha if she needed help.

       After the police refused to help her, Hoxholli left to hide with her mother’s family

in the city of Dures, Albania. She returned to Tirana only to arrange her trip out of

Albania–she obtained a visitor visa at the U.S. Consulate and left for the United States on

September 24, 2000.


                                             3
                                          Discussion


       Section 208(b) of the INA, 8 U.S.C. § 1158(b), confers on the Attorney General

the discretion to grant asylum to an alien who is a “refugee.” An individual qualifies as a

refugee if he or she is “unable or unwilling” to return to his or her 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.” INA § 101(a)(42)(A), 8

U.S.C. § 1101(a)(42)(A).

       An applicant bears the burden of proving eligibility for asylum based on specific

facts and credible testimony. 8 C.F.R. § 208.13(a); Abdille v. Ashcroft, 242 F.3d 477, 482

(3d Cir. 2001). In order to demonstrate a well-founded fear of persecution, an applicant

must satisfy three requirements: (1) he or she has a fear of persecution in his or her native

country; (2) there is a reasonable possibility that he or she will be persecuted upon return

to that country; and (3) the applicant is unwilling to return to that country as a result of his

or her fear. 8 C.F.R. § 208.13(b)(2)(i). An alien who establishes past persecution is

presumed to have a well-founded fear of future persecution. 8 C.F.R. § 208.13(b)(1).

       The eligibility threshold for withholding of removal is higher than for asylum.

The Attorney General must determine that repatriation would jeopardize the alien’s life

or freedom on account of one of the protected grounds. INA § 241(b)(3), 8 U.S.C.

§ 1231(b)(3). The applicant must therefore demonstrate a clear probability of

persecution. Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir. 1998). Given this higher

                                               4
standard, an applicant who does not qualify for asylum also will not qualify for

withholding of removal.

       We will uphold factual findings in an immigration matter 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

reverse a determination of the BIA/IJ if “the evidence not only supports [a contrary]

conclusion, but compels it.” Id. at 481 n.1 (emphasis omitted). Adverse credibility

determinations are reviewed as well for substantial evidence, Balasubramanrim v. INS,

143 F.3d 157, 161 (3d Cir. 1998), and we will uphold those findings unless “any

reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.

§ 1252(b)(4)(B).

       The IJ did not find Hoxholli’s testimony credible. Among the examples pointed

out were the following:

•      The IJ stated that Hoxholli “claims that the only time she came back from Dures
       after she left was when she came to the airport [in Tirana].” The IJ then pointed
       out that “yet, we have a visa that was issued at the American Consulate [in Tirana]
       on September 8th, 2000.” The IJ then concluded: “[I]f the only time she ever
       appeared in Tirana was to leave at the airport on September 24th, how could she be
       at the American Consulate [on September 8th] getting the visa[?] I think the
       answer is she never left Tirana and never went to Dures.” W hile the IJ erred in
       stating that Hoxholli claimed that the only time she came back to Tirana from
       Dures was to leave from the airport on September 24th, there is support for the IJ’s
       conclusion that Hoxholli’s claim that she fled to Dures was untrue. First,
       Hoxholli’s testimony that she fled to Dures contradicted her previous testimony
       that she had lived in Tirana continuously from 1994 until she left for the United
       States. Second, Hoxholli’s I-589 asylum application does not mention Dures.



                                             5
•     The IJ disbelieved Hoxholli’s assertion that she did not have to answer any
      questions at the United States border about her reasons for or the intended duration
      of her visit.

•     The IJ disbelieved Hoxholli’s assertion that she was active in the DP in 1992 but
      did not actually join the party until 1998. The IJ’s reasoning that a DP activist and
      campaign worker would be an official DP member is not unreasonable.

•     Hoxholli testified that she paid monthly membership dues to the DP in 2000 from
      January until she left. When confronted with the fact that her DP membership card
      was paid through December 2000, when she had been in the United States since
      September 2000, she arguably changed her testimony when she claimed that her
      brother paid her dues through December.

•     Hoxholli’s brother Artori did not testify. Hoxholli initially claimed that he did not
      testify because he was not present in Albania when the alleged events happened.
      However, Hoxholli changed her testimony and claimed that he was ill when the IJ
      asked her why her brother could not testify as to his knowledge of her DP
      membership.

•     The IJ observed that Hoxholli was “shifty,” “not responsive,” and that she
      repeatedly changed her testimony. We defer to the IJ’s finding that Hoxholli’s
      demeanor indicated that her testimony was not credible.

      The IJ also based in part the denial of Hoxholli’s asylum application on her failure

to corroborate her testimony. Hoxholli offered reports from the State Department3 and



      3
        Hoxholli argues that the IJ should have addressed the 2001 State Department
Country Report for Albania in his decision. The Country Report states that police
harassed some DP members and allegedly killed one DP member. It also states that some
DP members were terminated from their official positions for political reasons. But
because we affirm the IJ’s finding that Hoxholli’s story is not credible, the Country
Report would only be relevant if it described a systematic government-based pattern or
practice of persecution, or persecutions condoned by the government, so severe that an
Albanian would have a well-founded fear of future persecution simply by being a
member of the DP. It does not.


                                            6
human rights groups describing the general situation in Albania. She offered certificates

attesting that she is a member of activist groups involving formerly persecuted

individuals. But other than her DP identification card, Hoxholli offered no

documentation from the DP to corroborate her claims. She did not submit any of the

threatening letters she allegedly received. She also offered no photographs, reports, or

documents to verify that the store where she worked was bombed.

       Furthermore, Hoxholli had members of her immediate family who could have

given corroborating testimony, yet she failed to call them as witnesses. As noted,

Hoxholli has two brothers who were also DP members. Artori, who lived in Patterson,

New Jersey, close to the hearing site, did not testify. As already noted, Hoxholli initially

claimed that he did not testify because he was not present in Albania when the alleged

events happened. However, she changed her testimony and claimed that Artori was not

feeling well when the IJ asked her why he could not testify as to his knowledge of her

DP membership. Florenci, who was in the Dominican Republic when Hoxholli’s case

was heard, had allegedly been arrested once in Albania. Hoxholli offered no affidavits or

letters from Florenci into evidence.

       Hoxholli testified that her parents knew of the incidents about which she testified,

and her parents were in the same building as Hoxholli’s asylum hearing on the day of the

hearing, yet they did not testify. When asked why she did not offer their testimony,

Hoxholli said that it was because they were not present when she was arrested.


                                             7
                                     * * * * *

      As there is nothing in the record that compels us to conclude that the IJ’s decision

to deny asylum and withholding of removal was incorrect, we deny the petition for

review.




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