Balaj v. Attorney General

265 F. App'x 82
CourtCourt of Appeals for the Third Circuit
DecidedFebruary 21, 2008
Docket06-4025
StatusUnpublished

This text of 265 F. App'x 82 (Balaj v. Attorney General) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Balaj v. Attorney General, 265 F. App'x 82 (3d Cir. 2008).

Opinion

OPINION OF THE COURT

FISHER, Circuit Judge.

Fitim Balaj seeks review of an order of the Board of Immigration Appeals (“BIA”), affirming the Immigration Judge’s (“IJ’s”) denial of his request for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). For the following reasons, we will deny the petition.

I.

We write exclusively for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis.

Balaj is an ethnic Albanian who was born in 1978 in Lluga Istog, Kosovo. He is a citizen of the Federal Republic of Yugoslavia, now Serbia. He and his family fled Kosovo because of oppression by Serbs and returned in 1999. Balaj was a member of the Democratic League of Kosovo (LDK) party beginning in 1997; his family also belonged to the LDK. His family, which still lives in Kosovo, consists of his wife, father, mother, and brother.

Balaj states that he fears harm from Albanian extremists affiliated with the Kosovo Liberation Army (KLA) and from Serbian spies. His fears are based mainly on two violent incidents.

First, in October 2002, 1 Balaj and his wife were accosted by three masked men while walking home from an LDK meeting. The men warned them to discontinue *84 their LDK activities. One of them hit Balaj over the head with a gun, rendering him unconscious. The men then threatened to rape his wife but were stopped by other LDK members who were also leaving the meeting. Balaj reported the incident to his local LDK party leader.

In March 2004, a car bomb exploded in front of Balaj’s family’s home in the middle of the night. The bomb shattered the windows of Balaj’s home, and he and his family were cut by flying glass. Balaj testified that he left Kosovo that day.

Balaj came to the U.S. with a friend, Ardjan Gashi, and entered illegally over the Mexican border. Balaj testified that Ardjan’s brother, Saleh Gashi, picked up Balaj and Ardjan at the Port Authority bus station in Manhattan on April 11, 2004. However, Balaj submitted an affidavit from Saleh Gashi that states that Saleh saw Balaj and Ardjan for the first time when the two travelers arrived unexpectedly at Saleh’s home in New Jersey in the middle of the night on April 13, 2004. Balaj was unable to explain this discrepancy at his hearing.

Balaj presented an affidavit from the mayor of his town, who is also the local LDK party leader. The affidavit confirmed that Balaj was an active member of the LDK, but did not mention either of the acts of violent persecution about which Balaj testified. Balaj did not present medical records from either of the incidents. He did not have letters or affidavits from his family members, who remain in Kosovo, about these events. Balaj stated that he did not have corroborating documentation because he did not know he needed it.

The IJ denied Balaj’s applications for asylum, withholding of removal, and relief under the CAT. The IJ’s oral opinion stated that while Balaj’s claims of harm prior to 1999 are credible, country conditions have changed in Kosovo from 2000 (when the United Nations interceded) to the present. In addition, the IJ noted that none of Balaj’s testimony about the violence he suffered at the hands of the KLA was corroborated. None of the documents Balaj presented contained any mention of the violence, and the IJ stated that such documentation was reasonably available from his family in Kosovo. Therefore, the IJ found that Balaj was not credible and had not met his burden of proof on his claims of persecution and torture.

The BIA summarily affirmed the IJ’s decision, noting: “We agree that the respondent failed to meet the burdens of proof on his claims of persecution and torture, even assuming that he testified credibly.” Balaj now files this timely petition for review.

II.

We have jurisdiction under 8 U.S.C. § 1252(a)(1). • In cases where the BIA adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, we review the decisions of both the IJ and the BIA. Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). We review the IJ’s decision and the BIA’s affirmance under the deferential “substantial evidence” standard. Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir.2003) (en banc). A finding is not supported by substantial evidence only where “no reasonable fact finder could make that finding on the administrative record.” Id.

III.

The Attorney General may, in his discretion, grant asylum to an alien who can prove that he has experienced persecution or has 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. § 1101(a)(42)(A). To qualify for withhold *85 ing of removal, which is mandatory, an applicant must present credible evidence demonstrating a “clear probability” of persecution if removed to a particular country. I.N.S. v. Stevic, 467 U.S. 407, 413, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). If an applicant shows that “it is more likely than not that [he] would be tortured in the country to which [he] would be removed,” the applicant must receive protection under the CAT. Obale v. Att’y Gen., 453 F.3d 151, 161 (3d Cir.2006). An alien does not qualify for CAT protection unless the torture is inflicted “by or at the instigation of or with the consent or acquiescence of a public official.” Auguste v. Ridge, 395 F.3d 123, 151 (3d Cir.2005).

Balaj contends that he presented credible evidence of past persecution and that he established a well-founded fear of future persecution. He asserts that the IJ was biased against him and therefore refused to grant asylum. In addition, Balaj argues that the IJ did not complete the required analysis regarding the lack of corroborative evidence, and therefore the BIA erred when it affirmed the IJ’s decision.

Balaj did not carry his burden of proof on whether he experienced past persecution, because he did not provide corroborating evidence for his testimony about the violent incidents he claimed to have experienced. Therefore, he was not entitled to a presumption that he would be persecuted in the future, 8 C.F.R. § 208.13(b)(1), and did not prove that he was eligible for asylum.

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265 F. App'x 82, Counsel Stack Legal Research, https://law.counselstack.com/opinion/balaj-v-attorney-general-ca3-2008.