Belortaja v. Gonzales

• Decision Date: 27 April 2007
• Docket Number: Docket No. 04-4665-AG.
• Citation: 484 F.3d 619
• Parties: Julian BELORTAJA, Petitioner, v. Alberto R. GONZALES,<SMALL><SUP>1</SUP></SMALL> Attorney General, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

484 F.3d 619

Julian BELORTAJA, Petitioner, v. Alberto R. GONZALES,¹ Attorney General, Respondent.

Docket No. 04-4665-AG.

United States Court of Appeals, Second Circuit.

Argued: April 12, 2007.

Decided: April 27, 2007.

Glenn T. Terk, Wethersfield, CT, for Petitioner.

Michael C. James, Assistant United States Attorney (Michael J. Garcia, United States Attorney; Michael R. Holden, Assistant United States Attorney; and Ramon E. Reyes, Jr., Assistant United States Attorney, on the brief), United States Attorney's Office for the Southern District of New York, New York, NY, for Respondent.

Before WINTER, CABRANES, and HALL, Circuit Judges.

JOSÉ A. CABRANES, Circuit Judge.

Petitioner Julian Belortaja, a native and citizen of Albania, seeks review of a decision of the Board of Immigration Appeals ("BIA") made after a stipulated remand from this Court. The BIA affirmed a decision by Immigration Judge ("IJ") Michael W. Strauss denying petitioner's applications for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"), and ordering him removed to Albania. In re Belortaja, No. A 77 750 000 (B.I.A. Aug. 5, 2004), aff'g No. A. 77 750 000 (Immig. Ct. Hartford Dec. 6, 2001). Petitioner argues, inter alia, (1) that the BIA's adverse credibility determination was improper because the IJ's decision (which had been adopted by the earlier, vacated decision of the BIA) did not contain an explicit credibility determination, and (2) that the BIA's adverse credibility determination is, in any event, not supported by substantial evidence. We reject both of these arguments.²

BACKGROUND

We recount here only those elements of the factual and procedural background necessary to resolve the instant petition.

Petitioner attempted to enter the United States illegally in August 2000 and was issued a Notice to Appear in removal proceedings in September 2000. He conceded removability, and, in July 2001, he filed an application for asylum, withholding of removal, and CAT relief. In his application, petitioner alleged that his family had been "politically persecuted by the Communist dictatorship" in Albania and that, more recently, he and his father had been persecuted by the Socialist Party, and by "new Communists," because of their support for the Legality Movement Party ("LMP"), "a party that [seeks] the restoration of a Democratic Constitu[tion]al Monarchy."

Following a hearing on December 6, 2001, at which petitioner testified, the IJ denied petitioner's application. In his oral decision, the IJ noted two discrepancies between petitioner's asylum application and his hearing testimony. First, petitioner testified at the hearing that, in April 1999, a friend and "well-known activist" in the LMP was shot and killed while sitting with petitioner in a restaurant. Petitioner stated that he believes "Communists" were responsible for the shooting, and that this incident was one of the reasons why later in 1999 he fled to Greece for about a year. Yet, as the IJ noted, petitioner's asylum application did not mention the shooting.

Second, petitioner testified that after his return to Albania from Greece, he attended a rally organized by the Democratic Party, an ally of the LMP. After the rally, several individuals stopped him on the street, forced him into a car, held a gun to his head, and beat him while threatening to kill him for participating in such rallies. The individuals in the car then hit him "with a hard object" on the head, knocking him unconscious. He woke up on the ground, and a passerby drove him home. Petitioner also testified that he believes "Communists" were responsible for this attack. Although petitioner's asylum application mentioned the beating and threats on this occasion, it did not indicate that he had been knocked unconscious.

These two omissions in his asylum application—the shooting of his friend and being knocked unconscious—led the IJ to "find[ ] that while [petitioner] may have been a member of the [LMP], his experiences appear to be embellished." The IJ, however, did not explicitly find that petitioner's testimony was incredible because of the omissions. The IJ then discussed a variety of reasons, in addition to the embellishment, why petitioner could not establish past persecution, a well-founded fear of future persecution, or that it was more likely than not that he would be tortured if returned to Albania. These reasons included petitioner's failure to provide evidence of "a widespread practice" of harassment against opponents of the Socialist Party and the fact that petitioner had "good reasons to come to the United States" other than political persecution.

Petitioner appealed the IJ's decision to the BIA on December 19, 2001. In a decision dated May 2, 2002, the BIA adopted and affirmed the IJ's December 6, 2001 decision. The BIA noted that "[w]hile the [IJ] appears to have doubted the overall plausibility of large portions of [petitioner's] asylum claim, he did not make an explicit credibility finding in his decision." Nevertheless, the BIA determined that, even assuming petitioner were credible, he could not prevail for the reasons stated by the IJ.

Petitioner then sought review of the BIA's May 2, 2002 decision in this Court. While the petition for review was pending, petitioner and the Government entered into a Stipulation and Order of Settlement and Dismissal, which was filed on December 19, 2003. Pursuant to the stipulation and order, the May 2, 2002 decision was vacated and proceedings were remanded to the BIA for "reconsider[ation] of [petitioner's] appeal in light of Qiu v. Ashcroft, 329 F.3d 140 (2d Cir.2003), and Secaida-Rosales v. INS, 331 F.3d 297 (2d Cir. 2003)," two decisions of this Court rendered after the BIA issued its decision in petitioner's case.

Upon remand, the BIA issued an independent decision on August 5, 2004—again denying petitioner's appeal. Based on the two omissions in petitioner's asylum application discussed above, the BIA determined that petitioner was not credible. The BIA, citing to Secaida-Rosales, stated that "the aforementioned omissions [are] central to [petitioner's] asylum claim and significant enough to support an adverse credibility finding." Alternatively, the BIA concluded that fundamental changes had occurred in Albania so that petitioner would no longer have a well-founded fear of persecution even if he were credible. The BIA's August 5, 2004 decision did not expressly adopt any portion of the IJ's December 6, 2001 decision.

DISCUSSION

"When the BIA issues its own independent decision and does not adopt the IJ's decision, this Court reviews the decision of the BIA alone." Mu Xiang Lin v. U.S. Dep't of Justice, 432 F.3d 156, 159 (2d Cir.2005). We review an adverse credibility determination by the BIA under the substantial evidence standard, treating it as "conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B); see Cheng Tong Wang v. Gonzales, 449 F.3d 451, 453 (2d Cir.2006). We also look to see whether the BIA "has provided `specific, cogent' reasons for the adverse credibility finding and whether those reasons bear a `legitimate nexus' to the finding." Zhou Yun Zhang v. INS, 386 F.3d 66, 74 (2d Cir.2004) (quoting Secaida-Rosales, 331 F.3d at 307). However, before we turn to the question of whether the adverse credibility determination in the BIA's August 5, 2004 decision is supported by substantial evidence and based on permissible reasons, we must first consider petitioner's contention that, given the procedural posture of this case, the BIA did not have the authority to make such a determination.

I. The BIA's Authority on Remand

We conclude that the BIA's adverse credibility determination—which it based on the record developed by the IJ—was not prohibited by (1) the terms of the stipulated remand, (2) the regulatory scheme governing the BIA's determination upon remand, or (3) due process considerations.

The December 19, 2003 stipulation between petitioner and the Government vacating the BIA's May 2, 2002 decision did not specify any limits on the BIA's authority to make an adverse credibility determination on remand; nor did it suggest, much less direct, that if the BIA thought such a determination appropriate, it first had to order a further remand to the IJ for a new hearing. Rather, the stipulation simply noted the absence of an explicit credibility determination in the IJ's decision and directed the BIA to reconsider petitioner's case in light of Qiu and Secaida-Rosales. This language neither explicitly nor implicitly precluded the BIA from deciding petitioner's appeal on any grounds permitted by law, so long as the BIA properly considered the two recent cases; it certainly did not reach any conclusion regarding the propriety of an adverse credibility determination by the BIA. Cf. Biggins v. Hazen Paper Co., 111 F.3d 205, 209 (1st Cir.1997) ("On remand, courts are often confronted with issues that were never considered by the remanding court. And although the mandate of an appellate court forecloses the lower court from reconsidering matters determined in the appellate court, it leaves to the [lower] court any issue not expressly or impliedly disposed of on appeal." (alteration in original) (internal quotation marks omitted)). Indeed, because Secaida-Rosales was concerned primarily with the validity of an adverse credibility determination, see 331 F.3d at 301, 308-12, it would make little sense to read the stipulation directing consideration of Secaida-Rosales as foreclosing the possibility of an adverse credibility determination on remand.

We also conclude that the BIA, in making an adverse credibility determination on remand, did not violate regulations governing its authority to review decisions made by the IJ. Under these regulations, the BIA was authorized to review all aspects of the IJ's decision — including the IJ's factual...