Skendaj v. Attorney General

275 F. App'x 126
CourtCourt of Appeals for the Third Circuit
DecidedApril 22, 2008
DocketNo. 06-5029
StatusPublished
Cited by4 cases

This text of 275 F. App'x 126 (Skendaj v. Attorney General) 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
Skendaj v. Attorney General, 275 F. App'x 126 (3d Cir. 2008).

Opinion

OPINION OF THE COURT

RENDELL, Circuit Judge.

Nereida Skendaj, mother, and Rafaelo Skendaj, son, petition for review of a final order of the Board of Immigration Appeals (“BIA”), in which the BIA affirmed the denial by an Immigration Judge (“IJ”) of their applications for asylum and withholding of removal. They also petition for review of the BIA’s denial of relief under the Convention Against Torture (“CAT”). The petitioners are Albanian citizens who resided in Greece before arrival in the United States; Albania is the proposed country of removal. Ms. Skendaj claims that she and her son have a well-founded fear of future persecution on account of [128]*128the political opinion of her father, a high-ranking member of the Albanian Democratic Party. She testified that she left Albania for Greece because she received anonymous telephonic threats that she would be forced into prostitution because she was the daughter of an enemy of the Socialist Party. Despite the threatening calls, the petitioners traveled to Albania to visit Ms. Skendaj’s father. During this visit, unidentified motorcyclists pulled up alongside a taxi carrying the petitioners. Ms. Skendaj claims that one of the motorcyclists said to the other, “grab the kid, the window[’]s open.” (A.R. 119.) She perceived this as a threat to kidnap her son. The taxi driver evaded the motorcyclists, and they escaped unharmed.

To be eligible for asylum, an applicant must demonstrate that she is a refugee. See 8 U.S.C. §§ 1158(b)(1)(A), 1101(a)(42)(A). A refugee is “a person unable or unwilling to return to the country of that person’s nationality or habitual residence because of past persecution or because of a well-founded fear of future persecution on account of his race, religion, nationality, membership in a particular social group, or political opinion.” Gao v. Ashcroft, 299 F.3d 266, 271-72 (3d Cir. 2002); see 8 U.S.C. § 1101(a)(42)(A). To warrant a finding of past persecution, the applicant must prove that: (1) the alleged persecution was sufficiently severe; (2) the alleged persecution was on account of a protected ground; and (3) the alleged persecution was perpetrated by the government or by forces the government was either unwilling or unable to control. Ab-dulrahman v. Ashcroft, 330 F.3d 587, 591 (3d Cir.2003). A rebuttable presumption of a well-founded fear of future persecution alises if an applicant establishes that she suffered past persecution. See 8 C.F.R. § 208.13(b)(1). Otherwise, an applicant must demonstrate that she has a subjectively genuine and an objectively reasonable fear that she will be persecuted if forced to return to the proposed country of removal. Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir.2003). A subjectively genuine fear is established through credible testimony, and an objectively reasonable fear is established if the applicant shows that she “would be individually singled out for persecution” or that there exists a “ ‘pattern or practice ... of persecution of a group of persons similarly situated to the applicant on account of [a protected ground]’ ”. Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir.2005) (quoting 8 C.F.R. 208.13(b)(2)(iii)(A)). To qualify as a “pattern or practice,” the persecution must be “systemic, pervasive, or organized.” Id. at 537 (internal quotation marks omitted).

We have jurisdiction to review the BIA’s final order pursuant to 8 U.S.C. § 1252(a). Because this is not a situation in which the BIA “ ‘expressly adopted [a] portion of the IJ’s opinion’ or ‘announced that it was deferring’ to the IJ’s findings,” we review the BIA’s decision. Voci v. Gonzales, 409 F.3d 607, 612 (3d Cir.2005) (quoting Abdu-lai v. Ashcroft, 239 F.3d 542, 548 n. 2 (3d Cir.2001)). Factual findings must be upheld 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) (internal quotation marks omitted). In other words, “they must be upheld unless the evidence not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001). Persecution is a finding of fact reviewed under this substantial evidence standard. See id.

The petitioners argue on appeal that the BIA’s finding that the petitioners have not met their burden of establishing past persecution or a well-founded fear of future persecution on account of a protected ground was not supported by substantial evidence. We disagree. For purposes [129]*129of this appeal, we will assume Ms. Sken-daj’s credibility.

Substantial evidence supports the BIA’s conclusion that the unfulfilled telephonic threats to Ms. Skendaj that she would be forced into prostitution because of her father’s political affiliation were not severe enough to warrant a finding of persecution. We have indicated that ‘“[t]hreats standing alone ... constitute persecution in only a small category of cases.’ ” Li v. Att’y Gen., 400 F.3d 157, 164 (3d Cir.2005) (alterations in original) (quoting Lim v. INS, 224 F.3d 929, 936 (9th Cir.2000)). Further, we have made clear that “unfulfilled threats must be of a highly imminent and menacing nature in order to constitute persecution.” Id. at 164-65. Despite the threatening phone calls, Ms. Skendaj was able to graduate and marry without suffering harm before moving to Greece. Also, Ms. Skendaj’s sister was able to attend school in Tirana, the Albanian capital, without harm. Further, Ms. Skendaj voluntarily returned with her son to Albania to visit. Thus, this does not fall within the small category of cases where threats standing alone constitute persecution because the threats were not highly imminent.

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275 F. App'x 126, Counsel Stack Legal Research, https://law.counselstack.com/opinion/skendaj-v-attorney-general-ca3-2008.