Cekaj v. Atty Gen USA

• Court: Court of Appeals for the Third Circuit
• Decided: May 19, 2009
• Docket: 08-2660
• Status: Unpublished

Opinion

Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit

5-19-2009

Cekaj v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2660

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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

NO. 08-2660 ________________

BRUNO CEKAJ, Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES, Respondent ____________________________________ On Review of a Decision of the Board of Immigration Appeals (Agency No. A098 272 475) Immigration Judge: Honorable Henry S. Dogin ____________________________________

Submitted Under Third Circuit LAR 34.1(a) May 5, 2009

Before: BARRY, SMITH and GARTH, Circuit Judges

(Filed: May 19, 2009)

_______________________ OPINION _______________________

PER CURIAM

Petitioner, Bruno Cekaj, a native and citizen of Albania, entered the United States

in November 2003 without inspection in violation of INA § 212(a)(6)(A)(i). Removal

proceedings were initiated in August of the following year. Cekaj admitted the

allegations in the Notice to Appear, conceded that he was removable, and thereafter renewed his previous requests for asylum, withholding of removal, and protection under

the Convention Against Torture (“CAT”) which had been filed in March 2004.

At the removal hearing, Cekaj (then 19 years old) described his participation as a

member in the Youth Forum of the Albanian Democratic Party, the ensuing threats he

received, and a particular incident of violence rooted in his party membership. Cekaj

testified that he served as a poll watcher for the Democratic Party on October 12, 2003,

during which time he observed numerous election irregularities. The following day,

several police officers came to Cekaj’s home and asked him to accompany them to the

police station under the pretense of “speaking about some bargain.” When Cekaj arrived

at the station, he was told that he had to sign a statement attesting to the fact that the

elections held were done so properly. Cekaj refused to sign and requested permission to

go because he was tired. He was apparently allowed to leave. Two days later, on October

15, 2003, Cekaj was attacked near his home. Three individuals – two uniformed officers

and a third person who was wearing street clothing – warned Cekaj to discontinue his

support for the Democratic Party, and then proceeded to cut him and beat him until he

was unconscious. Cekaj was helped home by his cousins, and his father had him attended

to by a physician who made a house call. The physician treated the cuts to his head and

chin (which, according to Cekaj, did not require stitches), and Cekaj recuperated in his

bed at home during the following two weeks. It was during this time that his father

arranged for Cekaj to leave Albania for the United States.

At the conclusion of the hearing, the Immigration Judge (IJ) denied relief, finding

2 that (i) while Cekaj qualified for political asylum based on his testimony regarding the

October 15th incident and the evidence presented regarding his treatment by a physician,

(ii) the country conditions in Albania had sufficiently changed such that Cekaj, even if he

had suffered political persecution in the past, no longer had a reasonable fear of future

persecution given the Democrats’ return to power in 2005. As evidenced by his father’s

uneventful party membership from 1991 to 1997, the IJ concluded that Cekaj had no

reason to fear political persecution while the Socialists are the minority and that, even if

the Socialists were in control at the local level, Cekaj and his family could simply relocate

to Tirana where the Democratic Party was back in power. Accordingly, the IJ denied

Cekaj’s application for political asylum. Given the higher standard for withholding of

removal, the IJ denied that application as well. In light of the now-Democratic

government, it was also concluded there was no likelihood of torture and Cekaj’s CAT

request was thus denied.

The Board of Immigration Appeals (BIA) dismissed Cekaj’s appeal in an order

issued on March 30, 2007. After commenting that the IJ’s decision regarding the alleged

persecution suffered by Cekaj was “not clear,” 1 the BIA seemingly found that the single

incident described by petitioner did not amount to persecution. The BIA went on to find

that Cekaj likewise did not have a well-founded fear of persecution given, inter alia, the

1 The IJ’s finding was made somewhat ambiguous by his subsequent statements that, even assuming the possibility that Cekaj was “man-handled,” he could see no scar on Cekaj where he claims to have been cut, and there certainly was no “significant damage” and no “emotional trauma.” See IJ’s Oral Decision at 10, Admin. Rec. at 74.

3 current circumstances of Albania as documented in the 2006 Department of State Country

Report on Human Rights Practices (“Country Report”) and 2006 Department of State

Profile of Asylum Claims and Country Conditions (“Profile”), the contents of which the

BIA took administrative notice. See 8 C.F.R. § 1003.1(d)(3)(iv); Zubeda v. Ashcroft, 333

F.3d 463 (3d Cir. 2003).

While the reports revealed that problems with crime and corruption persist, the

BIA concluded that the reports also noted the following: there have been no outbreaks of

political violence; neither the government nor the major political parties engaged in

policies of abuse or coercion against their political opponents; and there is no indication

of systemic political persecution. See BIA Order at 2, Admin. Rec. at 35, citing Profile at

3. The BIA further noted that there were no reports of arbitrary or unlawful killings by

the government or its agents, no politically motivated disappearances, no political

prisoners or detainees, and that the government cooperated with human rights groups and

took steps to fight corruption within the government as well as the police and security

forces. Id., citing Country Report at 1-3, 5, 8-9. The BIA further noted that Cekaj’s

father (who is active in the Democratic Party) and the rest of his family still reside in

Albania. The BIA thus found that Cekaj’s subjective fear of returning to Albania is not

objectively reasonable and that, as such, he does not have a well-founded fear of

persecution. Finally, the BIA noted that, aside from the fact that Cekaj made no

substantive argument on appeal concerning his eligibility for either withholding of

removal or for protection under the CAT, he could not satisfy the higher burden of proof

4 given his failure to establish his eligibility for asylum. Cekaj timely petitioned for review

and sought a stay of removal, which the government opposed. See C.A. No. 07-2322. In

an order entered on July 3, 2007, this Court denied Cekaj’s stay request and a briefing

schedule issued.

Prior to the completion of briefing, respondent filed a motion seeking to have the

matter remanded to the BIA. Respondent asserted that it was unclear whether the BIA

was relying on the IJ’s determinations to conclude that petitioner had not demonstrated

past persecution. Thus, respondent requested that the BIA be afforded an opportunity to

explain, in sufficient detail to allow meaningful judicial review, whether it intended to

make a past persecution finding different from the IJ’s finding and whether its ultimate

determination included the shifting of the burden to the government to rebut any finding

of past persecution. The Court granted respondent’s motion to remand in an order filed

on February 12, 2008. The BIA subsequently issued an order on May 8, 2008, clarifying

its earlier opinion. Citing this Court’s opinion in Voci v. Gonzales, 409 F.3d 607, 615

(3d Cir. 2005), the BIA specifically found that the single incident described by Cekaj did

not amount to persecution. The BIA further held that, to the extent the IJ found that

Cekaj suffered past persecution, it would reverse that finding and thus the presumption of

well-founded fear of persecution did not apply. The BIA, adopting the prior finding set

forth in its March 30th order and taking judicial notice of such documents as the 2007

Country Report and the 2006 Profile, thereafter went on to conclude that Cekaj failed to

establish eligibility for asylum based on a well-founded fear of persecution. Accordingly,

the BIA once again dismissed Cekaj’s appeal and this timely petition for review followed.

5 Cejak raises the following allegations of error: 1) the IJ and BIA erred in

concluding that only one incident was offered in support of his claim of past persecution;

2) the BIA erred in concluding that Cekaj failed to show a well-founded fear of future

persecution after considering current country conditions, the possibility of relocation and

the fact that petitioner’s father, who is active in the Democratic Party, and his other

family members still reside in Albania; and 3) the BIA erred by taking administrative

notice of the 2006 Country Report without affording him an opportunity to respond to the

information in that report or to submit evidence contrary to the report.

Generally, we have jurisdiction to review the final decision of the BIA under 8

U.S.C. § 1252(a). Where the BIA adopts the IJ’s findings and also adds its own

comments and reasoning, this Court has jurisdiction to review both opinions. Chen v.

Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). Our review for the most part is highly

deferential. We must uphold the agency’s findings, including its determination of

whether an alien was subject to persecution or has a well-founded fear of persecution, 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) (quotation

omitted). Indeed, we may not reject these findings “unless any reasonable adjudicator

would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). See also

Kibinda v. Attorney General, 477 F.3d 113, 119 (3d Cir. 2007). Our review of Cekaj’s

due process challenge, on the other hand, is de novo. See Chong v. District Director,

I.N.S., 264 F.3d 378, 386 (3d Cir. 2001).

Initially, we note it appears that Cekaj only appeals the denial of his request for

6 asylum. Because he provides no argument in support of his withholding of removal and

CAT claims, we deem those issues waived. See Lie v. Ashcroft, 396 F.3d 530, 532 n. 1

(3d Cir. 2005). Additionally, while Cekaj takes issue with the IJ’s determination that he

could successfully relocate upon returning to Albania, respondent is correct in its

assertion that the BIA did not adopt this finding. Accordingly, this particular issue is not

before us.

We turn now to Cekaj’s claim that the BIA and IJ erred in concluding that only

one incident was offered in support of his claim of past persecution. The legal precepts

underlying Cejak’s claim are well established. To establish eligibility for asylum, an

applicant must demonstrate past persecution or a well-founded fear of persecution that is

both subjectively and objectively reasonable. Singh v. Gonzales, 406 F.3d 191, 195 (3d

Cir. 2005). In order to establish eligibility on the basis of past persecution, an applicant

must show, inter alia, “an incident, or incidents, that rise to the level of persecution....”

Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). We have defined persecution as

“threats to life, confinement, torture, and economic restrictions so severe that they

constitute a threat to life or freedom.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993).

The record in the instant case clearly shows that Cekaj was permitted to offer

evidence regarding his visit to the police station on October 13 th as well as the assault that

occurred on October 15 th , and that those instances were considered in evaluating his

request for relief from removal. See Admin. Rec. at 137-38. As respondent correctly

notes, the BIA need not “‘write an exegesis on every contention,’ but only to show that it

has reviewed the record and grasped the [petitioner’s] claims. Sevoian v. Ashcroft, 290

7 F.3d 166, 178 (3d Cir. 2002), quoting Mansour v. INS, 230 F.3d 902, 908 (7th Cir. 2000).

Moreover, as we stated in Voci v. Gonzales, 409 F.3d at 615, “[w]hile this Court has not

yet drawn a precise line concerning where a simple beating ends and persecution begins,

our cases suggest that isolated incidents that do not result in serious injury do not rise to

the level of persecution.” Although we certainly do not mean to imply that a single

physical assault could never support an asylum claim, we would be hard pressed to

conclude that the evidence presented on the record in the instant case – a record clearly

reviewed by the BIA in rendering its decision – compels reversal of BIA’s decision that

the physical harm or mistreatment Cekaj suffered did not rise to the level of persecution.

Cekaj’s contention that the BIA erred in concluding that he failed to show a well-

founded fear of future persecution fares no better. The record does not compel the

conclusion that Cejak would be individually singled out for persecution, or that there is a

pattern or practice of persecution against members or supporters of the Democratic Party

in Albania. See 8 C.F.R. § 1208.13(b)(2)(iii)(A). This is especially true given the current

conditions in Albania as set forth in the 2006 and 2007 Country Reports and 2006 Profile

relied upon by the BIA. See Ambartsoumian v. Ashcroft, 388 F.3d 85, 89 (3d Cir. 2004)

(quoting case law indicating that State Department country reports are “the most

appropriate and perhaps best resource on country conditions”) (internal quotations

omitted). While Cekaj takes issue with the BIA’s conclusion in this regard, he does not

point to any evidence in the administrative record to sufficiently support such a rebuttal.

See Gomez-Zuluaga v. Attorney General, 527 F.3d 330, 340 (3d Cir. 2008)(citing INA §

242(b)(4)(A), 8 U.S.C. § 1252(b)(4)(A), in support of the conclusion that this Court’s

8 review is confined to the administrative record); Berishaj v. Ashcroft, 378 F.3d 314, 330

(3d Cir. 2004) (noting Court’s obligation to base its review on the contents of the

administrative record). Moreover, the BIA properly considered – as an additional factor

in the overall analysis of petitioner’s asylum claim – the fact that Cekaj’s father continues

to reside in Albania without significant consequences stemming from his party

membership. See Lie, 396 F.3d at 537 (“[W]hen family members remain in petitioner’s

native country without meeting harm, and there is no individualized showing that

petitioner would be singled out for persecution, the reasonableness of a petitioner’s well-

founded fear of future persecution is diminished.”).

Finally, we reject as meritless Cekaj’s contention that the BIA erred by taking

administrative notice of the 2006 Country Report without affording him an opportunity to

respond to the information in that report or to submit evidence contrary to the report, and

we dispose of it with little discussion. This Court has recognized that due process

protections are afforded to aliens facing removal. See, e.g., Abdulai v. Ashcroft, 239

F.3d 542, 549 (3d Cir. 2001) (“Despite the fact that there is no constitutional right to

asylum, aliens facing removal are entitled to due process.”). The requirements of due

process “depend[ ] on the circumstances of the particular situation.” Dia v. Ashcroft, 353

F.3d 228, 239 (3d Cir. 2003) (en banc) (quoting Marincas v. Lewis, 92 F.3d 195, 203 (3d

Cir. 1996)). While it would have been preferable for the BIA to have advised Cekaj of its

intent to consider the 2006 Country Report and to have afforded him an opportunity to

specifically respond to that report, we cannot conclude that the failure to do so resulted in

a violation of due process requiring remand given the particulars of this case, i.e., the IJ’s

9 original determination with respect to Cekaj’s failure to show a well-founded fear of

future persecution, the BIA’s reference to the 2006 Country Report in its earlier decision

and the opportunity afforded petitioner to submit evidence and argument to the BIA after

this Court’s remand, and given that the facts in the 2006 Country Report of which the

BIA took administrative notice do not appear to have been solely dispositive of Cekaj’s

asylum claim. See Shao v. Mukasey, 546 F.3d 138, 167 (2d Cir. 2008) (no due process

violation where 2007 Profile was not “dispositive” of petitioner’s asylum application); cf.

Chhetry v. U.S. Dep’t of Justice, 490 F.3d 196, 198 (2d Cir. 2007)(compiling cases where

noticed facts were dispositive).

Accordingly, given the foregoing, the petition for review is denied.