Shkembi v. Attorney General of the United States

380 F. App'x 207
CourtCourt of Appeals for the Third Circuit
DecidedMay 20, 2010
DocketNo. 09-2912
StatusPublished

This text of 380 F. App'x 207 (Shkembi 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
Shkembi v. Attorney General of the United States, 380 F. App'x 207 (3d Cir. 2010).

Opinion

OPINION

PER CURIAM.

Petitioner Olsi Shkembi is a native and citizen of Albania who petitions for review of the Board of Immigration Appeals’s (“BIA”) final order of removal. For the following reasons, we will deny the petition for review.

I.

Shkembi entered the United States in 2003. He later filed an application for asylum, withholding of removal and relief under the United Nations Convention Against Torture (“CAT”), predicated on his claim that he had been persecuted for his involvement in the Albanian Democratic Party (“the Party”).

Shkembi joined the Youth Forum of the Party in 1996 and became a full member in 1998. As a member of the Youth Forum, Shkembi distributed literature and recruited students to join the Party. In February 1998, police removed him and several other students from their classroom. Shkembi was detained at the police station for several hours, during which the police interrogated, hit, and shoved him, resulting in bruising on his neck. Shkembi was released after Party members inquired about the detention.

Shkembi’s next confrontation with the police occurred a couple years later while he served as an election monitor.1 The police took Shkembi and his uncle (who was a Party leader in their village and chair of the region’s election committee) to the police station and detained them for two days. Shkembi was interrogated, threatened, and beaten, resulting in an injury to his shoulder which he treated with over-the-counter pain medication.

In 2002 and 2003 Shkembi worked on a camera crew for the Party’s media outreach program to help prepare for the 2003 local election. In June 2003, his uncle’s shop was bulldozed by the tax police due to pressure from the Socialist Party. Despite threats from the police, Shkembi filmed the bulldozing of the shop, which he asserted was broadcast on television.2

Before and after the 2003 election, Shkembi continued to be pressured and harassed by members of the Socialist Party, and he left Albania for the United States. Shkembi’s uncle also left Albania and relocated to Greece. He has a brother who is a Legal Permanent Resident of the United States, and another relative (described alternately as an uncle, grand-uncle, and great-uncle) who has been in the United States since 1968 and is a United States citizen.3 Shkembi’s two sisters re[209]*209main in Albania, and his older sister’s affiliation with the Party has kept her from obtaining a scholarship and attending college.4

Shkembi fears returning to Albania because he believes that those who oppose the Party will kill him. Although the Party is now in control of the Albanian parliament, Shkembi asserted that the Socialist Party continues to exert regional influence and control.

Despite some inconsistencies between Shkembi’s testimony and his asylum application, the IJ determined that he was credible. She nevertheless denied Shkem-bi’s requests for relief because the incidents that he described did not rise to the level of persecution. The IJ also concluded that Shkembi’s fear of future persecution was unreasonable because, as described by the 2007 United States Department of State Country Condition Report, conditions in Albania have changed significantly. The Party is now in control, and the Country Report states that political parties are operating without restriction and that there have been no reports of the detention of political prisoners or political disappearances. Further, the 2007 election was held by the international community to be fair and organized. The IJ also stated that to the extent that Shkembi may be faced with regional harassment, there is nothing precluding him from moving to another area of Albania.5

The BIA affirmed, agreeing that Shkem-bi’s “evidence regarding the arrests, threats, and minor physical abuse did not rise to the level of persecution.” The BIA also noted that the Country Report “describes significant political change in Albania,” and that the continued presence of Shkembi’s family members in Albania demonstrates that his “subjective fear of returning to Albania is not objectively reasonable.”

Through counsel, Shkembi now petitions for review of the BIA’s final order of removal.

II

We have jurisdiction to review the BIA’s final order of removal under 8 U.S.C. § 1252(a). The BIA’s decision is reviewed under the substantial evidence standard and will be upheld “unless the evidence not only supports a contrary conclusion, but compels it.” Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir.2003) (internal citation omitted).

Shkembi asserts that his due process rights were violated because: (1) the IJ did not allow his brother to testify at his removal proceeding, and (2) the record of the proceeding was deficient. Shkembi did not, however, raise these arguments before the BIA. Due process claims involving constitutional issues are generally not subject to the exhaustion requirement, 8 U.S.C. § 1252(d)(1), because the BIA does not have authority to adjudicate such is[210]*210sues, Marrero v. I.N.S., 990 F.2d 772, 778 (3d Cir.1993). Nevertheless, not all claims brought under the guise of due process fall outside the BIA’s jurisdiction. See id.; Bonhometre v. Gonzales, 414 F.3d 442, 448 (3d Cir.2005). As the Government argues, Shkembi’s due process claims are, in actuality, claims of procedural error that could have been raised before and adjudicated by the BIA. See Bonhometre, 414 F.3d at 448. Accordingly, the claims are unex-hausted and this Court does not have the authority to consider them. See Wu v. Att’y Gen., 571 F.3d 314, 317 (3d Cir.2009).

Substantial evidence also supports the BIA’s decision that Shkembi failed to sustain the burden of proof required for asylum eligibility. The police harassment, detentions, and accompanying mistreatment and threats suffered by Shkembi — which occurred over the course of several years — do not rise to the level of persecution. See Fatin v. I.N.S., 12 F.3d 1233, 1240 (3d Cir.1993) (defining persecution as “threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom”); cf. Toure v. Attorney Gen., 443 F.3d 310, 317-19 (3d Cir.2006); Voci v. Gonzales, 409 F.3d 607, 615-16 (3d Cir.2005).6

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380 F. App'x 207, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shkembi-v-attorney-general-of-the-united-states-ca3-2010.