Muska v. Holder

340 F. App'x 1
CourtCourt of Appeals for the First Circuit
DecidedAugust 7, 2009
Docket08-2196
StatusPublished

This text of 340 F. App'x 1 (Muska v. Holder) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Muska v. Holder, 340 F. App'x 1 (1st Cir. 2009).

Opinion

LYNCH, Chief Judge.

Gentian Muska, a native and citizen of Albania, petitions for review of an August 13, 2008 decision by the Board of Immigration Appeals (“BIA”) adopting the findings of the Immigration Judge (“IJ”) and issuing a final order of removal. We deny his petition in part and dismiss it in part.

I.

Gentian Muska arrived in the United States on October 16, 1999 with a valid B-2 visa obtained from the United States Embassy in Greece. As of April 16, 2000, he overstayed his visa. Over a year later, on July 23, 2001, Muska filed an application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”) with the Immigration and Naturalization Service (“INS”). INS did not grant this application and Muska was referred to an Immigration Court for removal proceedings where, on April 24, 2002, he conceded re-movability but also renewed his application for asylum, withholding of removal, and protection under the CAT. He filed a new application with the Immigration Court on June 16, 2005.

At the March 3, 2006 hearing on the merits of his claims, Muska withdrew his asylum application because it was untimely, but presented evidence to support his other claims. After reviewing the evidence, the IJ denied the claims.

The IJ found Muska “not credible with regard to key elements of his claim.” Even assuming credibility, the IJ found that Muska had not met his burden to receive withholding of removal by showing past persecution by the government or individuals or organizations controlled by the government. Specifically, the IJ concluded that a 1997 attack by unidentified persons on Muska’s family home, which caused him and his family to flee the country, and a 1999 fight Muska participated in at a café while on a brief visit to Albania from Greece, purportedly instigated by Socialists because of his political affiliation with Albania’s Democratic Party, did not constitute persecution. The IJ also concluded that Muska’s account of the 1999 café incident as well as his testimony that he was sure he would be persecuted by unidentified groups was insufficient to establish a well-founded fear of future persecution. In doing so, the IJ took notice of a 2004 State Department report describing a more stable political environment in Albania and reporting that the Democratic Party at that time controlled the executive branch of the Albanian government. The IJ also rejected Muska’s CAT claim, noting that “[tjhere is no evidence in the record of proceedings nor any presented at the hearing on the merits to suggest that the respondent has any reason to fear torture.” Finally, the IJ rejected an application for voluntary departure because Muska expressed a reluctance to leave the country, even if ordered to do so.

On September 29, 2006, Muska filed a notice of appeal with the BIA. In an opinion dated August 13, 2008, the BIA affirmed the IJ’s decision. The BIA found no clear error in the IJ’s finding that Muska was not credible, and noted that Muska’s brief failed to address the specific inconsistencies identified by the IJ. The BIA also agreed with the IJ’s alternate conclusion that even if credible, Muska *3 could not receive withholding of removal because he failed to establish either past persecution or a clear probability of future persecution by the Albanian government. It noted that Muska had failed to cite any legal authority that might suggest that the 1997 and 1999 incidents were sufficient evidence to meet his burden, and that the brief did not address the IJ’s findings with regard to changes in the Albanian government after 1997. The BIA rejected Mus-ka’s claim for relief under the CAT and request for voluntary departure, because his brief presented no substantive arguments on either issue.

Muska filed a petition for review with this court.

II.

Where, as here, the BIA adopts or defers to the Immigration Court’s findings and also discusses some of the underlying bases for the decision, we review the decisions of both the BIA and the IJ. Zheng v. Gonzales, 475 F.3d 30, 33 (1st Cir.2007).

We review agency findings of fact under the deferential “substantial evidence” standard. Sinurat v. Mukasey, 537 F.3d 59, 61 (1st Cir.2008). This standard requires that we treat administrative findings of fact as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). To revise the agency’s findings, “we must be persuaded that ‘the evidence not only supports that conclusion, but compels it.’ ” Khem v. Ashcroft, 342 F.3d 51, 53 (1st Cir.2003) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)).

A. Withholding of Removal

The BIA’s denial of withholding of removal is supported by record evidence both that Muska’s testimony was not credible and that, even if the testimony were deemed credible, it failed to meet the burden for withholding of removal. These two independent bases lead to denial of the petition as to the withholding claim.

In his petition before this court, Muska has not briefed the credibility issue and so any challenge to the IJ’s findings is waived. Tower v. Leslie-Brown, 326 F.3d 290, 299 (1st Cir.2003). That alone would require us to deny the petition. But we go on to affirm the BIA’s alternate holding.

In order to obtain withholding of removal under 8 U.S.C. § 1231(b)(3), the applicant has the burden of proving that “his or her life or freedom would be threatened in the proposed country of removal on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 C.F.R. § 1208.16(b). To meet this standard, an applicant must show that it “is more likely than not” that he or she would suffer persecution if removed. 8 C.F.R. § 1208.16(b)(2); De Oliveira v. Mukasey, 520 F.3d 78, 79 (1st Cir.2008). However, an applicant is also entitled to a rebuttable presumption of future persecution if he or she can demonstrate past persecution on protected grounds. 8 C.F.R. § 1208.16(b)(1); Orelien v. Gonzales, 467 F.3d 67, 71 (1st Cir.2006).

Muska’s argument that he has experienced past persecution was based on the 1997 attack on his home and the 1999 café incident.

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Related

Tower v. Leslie-Brown
326 F.3d 290 (First Circuit, 2003)
Silva v. Gonzales
463 F.3d 68 (First Circuit, 2006)
Orelien v. Gonzales
467 F.3d 67 (First Circuit, 2006)
Xie Mei Zheng v. Gonzales
475 F.3d 30 (First Circuit, 2007)
De Oliveira v. Mukasey
520 F.3d 78 (First Circuit, 2008)
Sinurat v. Mukasey
537 F.3d 59 (First Circuit, 2008)

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340 F. App'x 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/muska-v-holder-ca1-2009.