Rezhdo v. Atty Gen USA

• Court: Court of Appeals for the Third Circuit
• Decided: June 30, 2006
• Docket: 05-2895
• Status: Unpublished

Opinion

Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit

6-30-2006

Rezhdo v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2895

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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 05-2895

ARDIAN REZHDO, Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES, Respondent

On Petition for Review of an Order of the Board of Immigration Appeals BIA No. A78-698-676 (U.S. Immigration Judge: Honorable Donald Vincent Ferlise)

Submitted Pursuant to Third Circuit LAR 34.1(a) April 27, 2006

Before: SCIRICA, Chief Judge, NYGAARD and ALARCÓN * , Circuit Judges

(Filed June 30, 2006 )

OPINION OF THE COURT

* The Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Judicial Circuit, sitting by designation. SCIRICA, Chief Judge.

Ardian Rezhdo petitions for a writ of habeas corpus, contesting the Board of

Immigration Appeals’ order denying him asylum, withholding of removal, and protection

under the Convention Against Torture. We will grant the petition, vacate the removal

order, and remand for a new hearing.

I.

Petitioner Rezhdo, a native and citizen of Albania, entered the United States in

May 2000 without proper documentation. He was placed into removal proceedings under

8 U.S.C. § 1229a. The Immigration and Naturalization Service issued a Notice to

Appear, which Rezho conceded. He requested relief from removal by applying for

asylum, withholding of removal, and withholding under the CAT, alleging persecution

because of his sexual orientation. The IJ made an adverse credibility determination and

denied all of Rezhdo’s applications for relief, issuing an order on April 23, 2001, which

the Board summarily affirmed. In July 2003, the Board denied Rezhdo’s motion to

reconsider, on alternative grounds that it was untimely filed and that it failed to

demonstrate reconsideration was warranted. Rezhdo filed a petition for writ of habeas

corpus with the United States District Court for the Eastern District of Pennsylvania,

which transferred the petition to this Court pursuant to the REAL ID Act, Pub. L. No.

109-13, 119 Stat. 231 (2005). We convert the petition for a writ of habeas corpus to a

2 petition for review. 8 U.S.C. § 1252; see Bonhometre v. Gonzales, 414 F.3d 442, 446 (3d

Cir. 2005).

Rezhdo’s application is based on his homosexual relationship with Pellum Berberi,

whose brother Genc Berberi was a bodyguard for former Albanian Prime Minster

Bashkim Fino. Rezhdo contends that Genc Berberi, upon discovering the relationship,

began a course of brutal treatment against Rezhdo that led to Genc Berberi and two others

beating Rezhdo on a public street. Rezhdo filed a private criminal complaint against

Genc Berberi. Before the court hearing, Rezhdo and Pellum Berberi applied for a

marriage license, which the government denied because Albanian law does not extend

marriage to homosexual couples. Rezhdo contends Genc Berberi became so angry upon

learning of the marriage attempt that he burned down a store Rezhdo owned. Rezhdo

testified he told the police but no arrest issued. Rezhdo and Pellum Berberi fled to Italy

during the pendency of the legal proceeding on the assault, but not before, he claims, the

judge in the case told him he should drop the complaint. After the two spent several

months in Italy illegally, Pellum Berberi was fatally shot in their apartment. Rezhdo

fingers Genc Berberi as the murderer, and now fears for his life. Rezdho fled to the

United States, entering illegally.

II.

Because the Board summarily affirmed, we review the opinion of the IJ. Dia v.

Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003) (en banc). We review an immigration judge’s

3 findings of fact and credibility determinations under a substantial evidence standard. INS

v. Elias-Zacarias, 502 U.S. 478, 481 (1992).

The IJ based his adverse credibility finding on several factors. First, the IJ

criticized Rezhdo for confused dates. For example, Rezhdo testified that the hearing on

his private criminal complaint took place in August 1998 but on cross he claimed it

occurred in March 1998. Second, the IJ found it incredible that a person would wait in a

public square across from his apartment if he were afraid of being murdered in that

apartment.1 Third was Rezhdo’s claim that Genc Berberi had asked Rezhdo’s family

permission to kill Rezhdo while Rezhdo was in Italy. Finally, the IJ found Rezhdo’s

demeanor demonstrated he was lying. The IJ noted he was sweating profusely and

appeared extremely nervous.

Adverse credibility findings must be grounded in the record and must be based on

inconsistencies or improbabilities crucial to the claim. Zheng v. Gonzales, 417 F.3d 379,

381 (3d Cir. 2005). In general, “minor inconsistencies and minor admissions that ‘reveal

nothing about an asylum applicant’s fear for his safety are not an adequate basis for an

adverse credibility finding.’” Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002) (quoting

Vilorio-Lopez v. INS, 852 F.2d 1137, 1142 (9th Cir. 1988)). Most of the supposed

inconsistencies here were minor, soon corrected, and either do not go “to the heart of the

1 Rezhdo testified that when he suspected Pellum Berberi had been shot at their shared apartment in Italy, he waited for hours at a public bar across the square from his apartment, keeping watch over the apartment and waiting for news.

4 asylum claim,” Zheng, 417 F.3d at 381, or resulted from the IJ’s improper conjecture. We

conclude that substantial evidence does not support the’s IJ determination that Rezdho

was not credible.

As for the first “inconsistency,” the discrepancy in date was a misplaced month

(March for August) and the date was not nearly as important to Rezdho’s narrative as the

IJ made it seem. Regarding the second finding, the IJ’s discussion on this point is

conjecture—Rezhdo might have stayed in the bar, for example, to keep an eye on the

comings and goings from his apartment. There is nothing inherently implausible about

his story. See Jishiashvili v. Att’y Gen., 402 F.3d 386, 393 (3d Cir. 2005) (“Where the IJ

rejects an applicant’s testimony, the IJ must provide a specific, cogent reason for doing

so, rather than relying on speculation, conjecture, or an otherwise unsupported personal

opinion.” (quotations and citation omitted)). As for the third finding, Rezhdo explained

that his homosexuality caused his family deep shame. That his family might be involved

in his attempted murder or that Genc Berberi might have sought and found support from

them is in line with Rezhdo’s testimony on how homosexuals are treated in Albania. As

for the final finding, his sweating, nervousness, and minor testimonial inaccuracies might

have resulted from Rezhdo’s hypertension, a condition to which Rezhdo testified and to

which he offered proof, though it does not appear the IJ viewed or accepted the evidence.

5 (App. 202.) Accordingly, substantial evidence does not support this adverse credibility

finding.2

III.

The IJ made two alternative holdings “[a]ssuming arguendo that the Court had

found the Respondent credible.” (App. 22). The IJ held first that Rezdho “has not

produced a scintilla of evidence to reflect that he would be persecuted in Albania, or has

been persecuted in Albania . . . ” (Id.) Second, the IJ held Rezdho could avoid future

persecution by relocating to another part of Albania, “where no one knew of his past

homosexual activity and where Genc was not present.” (App. 22–23.) On their face,

these holdings might be sufficient to show Rezhdo was not entitled to the relief he sought.

See Chen v. Gonzales, 434 F.3d 212, 221–222 (3d Cir. 2005) (“If the IJ’s decision in this

case is supported by substantial evidence in the record, then his failure to make a valid

credibility determination would not bar this Court’s denial of the petition for review

without a remand.”). However, we are not convinced these were truly alternative

2 In two recent cases, we granted petitions arising from decisions by Donald V. Ferlise, the same IJ who handled this case. See Shah v. Att’y Gen., 446 F.3d 429, 437 (3d Cir. 2006) (granting a petition for review based on failure to credit corroborating evidence and on hostile questioning, under the substantial evidence standard); Cham v. Att’y Gen., 445 F.3d 683, 690–92 (3d Cir. 2006) (granting a petition for review on due process grounds because the IJ’s “belligeren[t]” questions that led to his adverse credibility finding “prejudiced both Cham’s ability to present his claims and the appropriate resolution of those claims”). We decide this case on its own facts alone, but we note the similarity between this case and Shah and Cham. In all three cases, the IJ made erroneous or conjectural credibility findings. While we note the similarities, our review of the hearing transcript does not reveal errors rising to the level of a due process violation.

6 holdings that assumed Rezdho’s credibility. Cf. Gui Cun Liu v. Ashcroft, 372 F.3d 529,

534 (3d Cir. 2004) (“[R]emand is appropriate where, as here, we have made a legal

determination (e.g., regarding admissibility of evidence) that fundamentally upsets the

balancing of facts and evidence upon which an agency’s decision is based.”).

Additionally, the IJ’s explanation of his alternative holdings is terse and undeveloped, so

that it is difficult for us to gauge what parts of Rezdho’s testimony, if any, the IJ relied

on. See Toure v. Att’y Gen., 443 F.3d 310, 325 (reaffirming in light of the REAL ID Act

that “(1) an IJ has a duty to develop an applicant’s testimony, especially regarding an

issue that she may find dispositive, and (2) as a logical predicate to appellate review, the

BIA must adequately explain the reasons for its decisions” (internal citations omitted)).

Remand is therefore necessary.

Regarding past and future persecution, had the IJ properly credited Rezdho’s

evidence, Rezdho might have shown more than that Genc Berberi, as a private criminal,

threatened his safety. See Abdille v. Ashcroft, 242 F.3d 477, 494 (3d Cir. 2001)

(“Ordinary criminal activity does not rise to the level of persecution necessary to establish

eligibility for asylum.”). Genc Berberi was a bodyguard for the former prime minister,

and, if we believe Rezhdo’s testimony, Rezhdo made several attempts to pursue police

and court assistance, to no avail. Rezhdo also testified that the judge—adjudicating his

private criminal complaint against Genc Berberi—told him on the courthouse steps to

drop the case. It appears the IJ did not properly credit this testimony, as he should have if

7 this were truly an alternative holding that assumed Rezdho’s credibility. In any event

there was much more than “a scintilla of evidence” of persecution. (App. 22.)

Regarding the IJ’s finding that under 8 C.F.R. § 208.13(b)(1)(B) Rezhdo could

relocate to another part of Albania where his homosexual activities are not known, this is

also not a true alternative holding. Rezhdo testified that Genc Berberi traveled to Italy to

murder Pellum Berberi and to attempt to murder Rezdho; if an IJ credited Rezdho’s

testimony, Albania could not be safer than Italy. This “alternative” holding does not

foreclose remand.3

Rezhdo also applied for restriction on removal and for protection under the

Convention Against Torture. Restriction on removal has a higher standard of proof than

does asylum, e.g., Guo v. Ashcroft, 386 F.3d 556, 561 n.4 (3d Cir. 2004), but Rezhdo

should have another opportunity to press this claim for the reasons stated. We will not,

however, remand his claim for CAT relief. Rezdho presented no evidence that he will

“more likely than not” be tortured upon return to Albania. Wang v. Ashcroft, 368 F.3d

347, 349 (3d Cir. 2004) (quoting 8 C.F.R. § 208.16(c)(2)). Substantial evidence supports

the IJ’s denial of CAT relief.

3 We hold only that the IJ’s “alternative” holdings do not insulate the opinion from a remand for a new hearing (based on the erroneous credibility finding), not that Rezdho qualified for the relief he sought. At the new hearing, a different IJ will be able to determine Rezdho’s eligibility, and, in the absence of an erroneous credibility determination, Rezhdo might or might not carry his burden.

8 Finally, Rezhdo appeals the Board’s July 2003 denial of his motion to reconsider.

We review for abuse of discretion. Sevoian v. Ashcroft, 290 F.3d 166, 170 (3d Cir. 2002).

Because we grant the petition and vacate the removal order, a holding on this issue is not

necessary. In any event, the Board did not appear to err in finding the motion untimely.

IV.

For the foregoing reasons, we will grant the petition for review (arising as it does

as a petition for habeas), vacate the order of removal, and remand for new hearing before

a different IJ.