Makashi v. Attorney General of the United States

336 F. App'x 276
CourtCourt of Appeals for the Third Circuit
DecidedJuly 14, 2009
DocketNo. 08-1460
StatusPublished

This text of 336 F. App'x 276 (Makashi v. Attorney General of the United States) 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
Makashi v. Attorney General of the United States, 336 F. App'x 276 (3d Cir. 2009).

Opinion

OPINION OF THE COURT

CHAGARES, Circuit Judge.

Tasim Makashi petitions for review of a final order of removal issued by the Board of Immigration Appeals (“BIA”). The BIA affirmed the decision of the Immigration Judge (“IJ”) denying Makashi’s petition for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We will deny his petition for review.

I.

Because we write solely for the parties, we will only briefly summarize the essential facts. Makashi, a native of Albania, seeks asylum and withholding of removal based on past political persecution and fear of future persecution, as well as relief under the Convention Against Torture (“CAT”). He claims that while still in Albania, he was persecuted because of his political beliefs — his membership in and [278]*278support of the Democratic Party.1 He relies heavily on an incident that allegedly occurred on September 14, 1998, in which explosives were detonated within Maka-shi’s home, damaging it as well as causing him serious injuries. He does not know who planted the explosives. As corroborating evidence of the explosion, Makashi submitted a report from Dr. Alfred Tusha, which references an explosion on September 14, 1998, but states that Makashi was examined on October 8, 1998. Makashi also argues that Vili Minarolli, a leader in the Democratic Party, was aware of the bombing, but a letter submitted by him does not reference it. Appendix (App.) 425. Makashi left Albania in 2002 and fled to the United States, where he applied for asylum, withholding of removal, and relief under the CAT.

The Immigration Judge (“IJ”) denied Makashi’s claim, finding that he was not credible. In making this finding, the IJ relied on numerous pieces of evidence: (1) Dr. Tusha’s report states that Makashi was examined October 8, not in September, and there was no further corroborating evidence about his beatings; (2) Minar-olli’s letter, which did not reference the bombing, was unpersuasive; and (3) the Country Condition Reports showed that there was generalized violence in Albania in the late 1990’s, and the explosion could have been just an instance of generalized violence rather than political persecution. In the alternative, the IJ concluded that even if Makashi was credible, his claim should be denied based on changed country conditions. Finally, the IJ found no basis to grant Makashi relief under the CAT.

The BIA affirmed the IJ’s decision, concluding that the IJ’s determination that Makashi was not credible was not clearly erroneous, because the discrepancy between Dr. Tusha’s report and Makashi’s claim of when the explosion occurred was “substantial and central” to Makashi’s claims. App. 2. The BIA also affirmed the IJ’s alternative finding that even if Makashi was credible, and had established past persecution, he was still ineligible for relief because the presumption of a well-founded fear of future persecution had been rebutted due to changed country conditions in Albania. The BIA also affirmed the IJ’s decision not to grant Makashi relief under the CAT because he did not demonstrate that it was more likely than not that he would be tortured if returned to Albania. Makashi then filed a petition for review in this Court.

II.

The BIA had authority to review Maka-shi’s appeal under 8 C.F.R. § 1003.1. This Court has jurisdiction to review the BIA’s final orders of removal under 8 U.S.C. § 1252. “[W]e uphold the BIA’s factual determinations if they are ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole.’.... [W]e can reject the BIA’s factual findings only if ‘any reasonable adjudicator would be compelled to conclude to the contrary.’ ” Liu v. Attorney General, 555 F.3d 145, 148 (3d Cir.2009). An adverse credibility determination is a factual finding which we review under the substantial evidence standard. Lin-Zheng v. Attorney General, 557 F.3d 147, 155 (3d [279]*279Cir.2009). When the BIA “substantially relie[s]” on the IJ’s credibility finding, even though it only gives “some examples of ... inconsistencies,” we can review the decision of both the IJ and the BIA. Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir.2004); See also Sandie v. Attorney General, 562 F.3d 246, 250 (3d Cir.2009).

III.

The Attorney General may grant asylum or withholding of removal to an alien in removal proceedings if the alien establishes that he or she is a “refugee” under the Immigration and Nationality Act (INA). 8 U.S.C. §§ 1158(a) and (b), 1231(b)(3)(A); Lin-Zheng, 557 F.3d at 149 n. 1; Wong v. Attorney General, 539 F.3d 225, 232 (3d Cir.2008). Under the INA, a “refugee” is defined as “ ‘any person who is outside any country of such person’s nationality ... and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that 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....’” Wong, 539 F.3d at 232 (citing 8 U.S.C. § 1101(a)(42)(A)).

To establish asylum eligibility, a petitioner can demonstrate that he suffered from past persecution, and, if he does so, that “gives rise to a rebuttable presumption of a well-founded fear of future persecution.” Gomez-Zuluaga v. Attorney General, 527 F.3d 330, 341 (3d Cir.2008) (citation and internal quotation marks omitted). Even if an asylum applicant does not show that he suffered from past persecution, he

may still qualify for asylum if he shows that he has a well-founded fear of future persecution on account of a protected ground. A well-founded fear includes both a subjective and objective component. An applicant must show that he has a subjective fear of persecution that is supported by objective evidence that persecution is a reasonable possibility.

Shardar v. Attorney General, 503 F.3d 308, 313 (3d Cir.2007) (citations and internal quotation marks omitted).

To establish eligibility for withholding of removal, “a petitioner must ‘establish a clear probability,’ meaning ‘that it is more likely than not, that he/she would suffer persecution.’ ” Wong, 539 F.3d at 236 (citation omitted). If an applicant is ineligible for asylum, he is also ineligible for withholding of removal. Id. at 236-37.

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