Hoxholli v. Atty Gen USA

118 F. App'x 642
CourtCourt of Appeals for the Third Circuit
DecidedDecember 27, 2004
Docket03-4617
StatusUnpublished

This text of 118 F. App'x 642 (Hoxholli v. Atty Gen USA) 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.

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Hoxholli v. Atty Gen USA, 118 F. App'x 642 (3d Cir. 2004).

Opinion

OPINION

AMBRO, 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. 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 *644 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.

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. § 208113(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 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, 112 S.Ct. 812, 117 L.Ed.2d 38 (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, 112 S.Ct. 812 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

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