Ymeri v. Ashcroft, 03-1058.

• Decision Date: 20 October 2004
• Docket Number: No. 03-1058.,03-1058.
• Parties: Xhevdet YMERI; Juliana Ymeri; Besmir Ymeri; Birsen Ymeri, Petitioners, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

387 F.3d 12

Xhevdet YMERI; Juliana Ymeri; Besmir Ymeri; Birsen Ymeri, Petitioners, v. John ASHCROFT, Attorney General, Respondent.

No. 03-1058.

United States Court of Appeals, First Circuit.

Heard April 15, 2004.

Decided October 20, 2004.

Petition for review from the Board of Immigration Appeals.

Susanna L. Shafer, for petitioners, with whom Daniel F. Cashman, Cashman & Lovely, P.C., was on brief, for petitioners.

Alison M. Igoe, United States Department of Justice, Office of Immigration Litigation, with whom Peter D. Keisler, Assistant Attorney General, United States Department of Justice, Civil Division, and Christopher C. Fuller, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for respondent.

Before TORRUELLA, Circuit Judge, JOHN R. GIBSON,^* Senior Circuit Judge, and LYNCH, Circuit Judge.

JOHN R. GIBSON, Senior Circuit Judge.

Xhevdet and Juliana Ymeri and their two children, Besmir and Birsen, are natives and citizens of Albania, seeking review of the Board of Immigration Appeals' order of removal, including its denial of their applications for asylum, withholding of removal, and protection under the Convention Against Torture. We deny review.

Xhevdet Ymeri filed an asylum application, and the other family members rely on his application as derivative applicants.

The Ymeris arrived in Boston on a flight from Italy on May 4, 1999. They carried counterfeit Greek passports using false names. They had arrived in the United States under the transit without visa program, under which aliens from certain countries were allowed to board a plane bound for the United States and be admitted to the United States without a visa pursuant to agreements with transportation carriers, who guaranteed the aliens' immediate and continuous passage to another country.¹ See 2 Charles Gordon, et al., Immigration Law & Procedure §§ 15.02[3], 15.03 (2004). Availability of the transit without visa privilege at the time in question depended on nationality and the privilege was available to Albanians only in a restricted form, requiring them to be on a direct through flight. 22 C.F.R. § 41.2(i) (1999). Greek nationals were not subject to such a restriction. The Ymeris presented their false Greek passports to the Immigration Inspector at Logan airport, who detected the documents as counterfeit. The Ymeris then admitted the documents were false.

On May 6, 1999, the INS charged all four Ymeris with removability on the ground that they did not have a valid passport or visa. Additionally, the INS charged the adults, Xhevdet and Juliana, with removability on the ground that they sought by willfully misrepresenting a material fact to procure admission or other benefits under the Immigration and Nationality Act. Xhevdet Ymeri filed for asylum and withholding of removal, alleging that he had been beaten on account of his membership in the Democratic Party in Albania and that if he returned to Albania, his life and the lives of his family would be in danger.

At an initial hearing on November 2, 1999, the Ymeris denied the two charges of removability against them and denied the underlying factual charges — that they had no visa or passport and that they had sought to procure Immigration benefits by willfully misrepresenting a material fact. Xhevdet Ymeri testified as follows:

Q: When you entered the United States, did you attempt to enter using a [passport from Greece]?

A: Yes.

Q: And did your wife also enter with a Greek passport?

...

A: Yes.

Q: And you're not from Greece, are you?

A: No.

INS counsel showed Juliana Ymeri a Greek passport and asked, "Is that the passport that you used to try to come into the United States?" She answered, "Yes." The Ymeris' counsel admitted that they had no proof that they had a valid, unexpired visa or other valid entry document. The Immigration Judge found that the Ymeris were removable.

At the asylum hearing on July 6, 2000, Xhevdet Ymeri testified that he became involved with the Democratic Party in Albania in 1990 and that he joined the party in 1992. Xhevdet said the Democratic Party was in power from 1992 to 1997, but in 1997 the Communists took the government by force. On September 12, 1998, a Democratic Party leader, Azim Hydari, was assassinated. Following the assassination, Ymeri participated in demonstrations. He said that ten days after the assassination, the police picked him up at a "party place" and took him to the police station, where they beat him until he "fainted and [he] was like a slave." He said the beating dislocated his shoulder, and his ears were "horning" several times a day, even at the time of the hearing. Then two weeks later, police again picked him up and took him to the station, where they kept him overnight. He said they beat him until he fainted. He was revived with cold water four or five times, until his tormentors finally threw him outside on the street. He said he was bedridden for "like three weeks," and that when he recovered, he walked to Greece. He said he stayed in Greece for two or three months, but came back when he heard that "they started having pressure on my wife and I heard that people and women were disappearing." He said he returned to Albania, sold his house, and left within twenty-four hours, with his wife and children. They went to Athens, where a friend "fixed" them some passports, and then on to Italy where they caught a flight to Boston. Once in Boston, Ymeri said that the police stopped him and he told them he was going to Toronto. He said the police then told him that he had false documents and he admitted they were false.

Juliana Ymeri also testified at the asylum hearing. The Immigration Judge revisited the question of removability, asking the Ymeris' counsel:

Q: Do you have anything to offer this Court showing that the mother did not by fraud or by willfully misrepresenting material facts seek to procure or have procured a visa or other documentation for admission into the United States? Do you have anything to offer to this court?

Counsel responded, "No."

Juliana testified that the first time Xhevdet was beaten, she cared for him at home because she was a nurse, and she used medicines she had at home for the children. He had a shoulder injury and some bruises that "weren't that important." The second time Xhevdet was beaten was worse because he could not stand on his feet and it took three or four days until he stopped bleeding. She said she did not take him to a hospital because she could not drive their car and she did not call a taxi because they did not have a phone and it would have taken half an hour. She said that after Xhevdet went to Greece, the police would ask about his whereabouts; when she refused to say where he was, they "started offending me with different rude words that I couldn't even mention in here." She said that the policemen's conversation was sexual in nature.

Juliana identified a letter she said she received from the Democratic Party. The document was a form letter, with blanks for name and date, filled in as Xhevdet Ymeri and April 20, 1999. The letter stated that Xhevdet Ymeri was a member of the Democratic Party and one of its "fist [sic] activists." It concluded, "With the government falling into the hands of the communist Party, the residence of the democrats is in danger." Juliana said that as soon as she got this letter, she became alarmed and asked Xhevdet to come home from Greece.

The Ymeris introduced the testimony of Professor Nicholas Pano, an expert on conditions in Albania. Prof. Pano testified that Xhevdet Ymeri's account of arrest and beating by police was consistent with police procedure in Albania. He testified that late 1998 was "a period of extreme confrontation between the Socialist Government that had just come to power and the Democratic Party." He said that although the Albanian government has tried to restrain the police and "these kinds of arrests" are less frequent now than in 1998, there was a possibility that Ymeri would be arrested again if he returned to Albania.

The government introduced the November 1998 Country Report for Albania by the State Department's Bureau of Democracy, Human Rights and Labor. The report stated:

The settling of accounts persists but individuals are rarely targeted for mistreatment on political grounds. The government lacks the resources and will to carry out such retribution.

The Immigration Judge began by determining that removability was established as to all four Ymeris.

The Immigration Judge found that there was no evidence that the police who allegedly made sexual comments to Juliana did so because of Xhevdet's political opinions or activity.

The Immigration Judge found that Xhevdet's testimony about his treatment at the hands of Albanian police was incredible or at least exaggerated. First, the Immigration Judge pointed out that Xhevdet stated in a sworn statement taken upon his arrival in the United States that he had never been arrested anywhere in the world for anything. This statement conflicted with Xhevdet's crucial testimony that he had been arrested twice by Albanian police. The Immigration Judge concluded that Xhevdet was not able to explain the inconsistency and that the inconsistency cast doubt on his story about what actually occurred in Albania. Second, the Immigration Judge pointed to conflicts in Xhevdet's accounts of how seriously he was injured by the first police beating and to a conflict between Xhevdet's account and Juliana's account. Similarly, the Immigration Judge concluded that Juliana's testimony concerning the minor medical treatment required after the second police beating did not accord with Xhevdet's account of an extremely severe beating. Third, the Immigration Judge found that Xhevdet's testimony that he came home from Greece for one day only and was able to sell his house and wind up his affairs within twenty-four hours was "curious," and even if true, was...