Hoxhallari v. Gonzales

• Citation: 468 F.3d 179
• Decision Date: 31 October 2006
• Docket Number: Docket No. 04-2922-AG.
• Parties: Ilir HOXHALLARI, Petitioner, v. Alberto GONZALES, Attorney General,<SMALL><SUP>*</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Second Circuit

468 F.3d 179

Ilir HOXHALLARI, Petitioner, v. Alberto GONZALES, Attorney General,^* Respondent.

Docket No. 04-2922-AG.

United States Court of Appeals, Second Circuit.

Argued: April 20, 2006.

Decided: October 31, 2006.

COPYRIGHT MATERIAL OMITTED

Aleksander Milch, Christophe & Associates, P.C., New York, New York, for Petitioner.

Maritza Gonzalez De Miranda, Assistant United States Attorney for the District of Puerto Rico (David N. Kelley, United States Attorney for the Southern District of New York, on the brief), San Juan, Puerto Rico, for Respondent.

Before: JACOBS, Chief Judge, WALKER and WALLACE, Circuit Judges.^**

PER CURIAM.

Petitioner Ilir Hoxhallari, a native and citizen of Albania, challenges the May 6, 2004 final decision and order of the Board of Immigration Appeals ("BIA") that summarily affirmed the December 3, 2002 oral decision of immigration judge ("IJ") Sandy K. Hom that [i] denied his application for asylum, withholding of removal under the Immigration and Naturalization Act ("INA"), and protection under the Convention Against Torture ("CAT"), and [ii] directed his removal to Albania. In re Ilir Hoxhallari, No. A 79 038 673 (BIA May 6, 2004), aff'g No. A 79 038 673 (Immig. Ct. New York, N.Y. Dec. 3, 2002). Hoxhallari claims past persecution and a well-founded fear of future persecution based on his political affiliation with, and support of, the Albanian Democratic Party since 1991.

For the reasons to follow, we deny the petition, and hold that where (as here) country conditions are sufficiently evident and concern a country that is the subject of an appreciable proportion of asylum claims, an immigration judge need not recite robotic findings when relying on changed country conditions under the INA.

BACKGROUND

Hoxhallari, who has conceded his removability, entered the United States from Mexico without inspection in July 2001, and was promptly placed into removal proceedings. In February 2002, he made a defensive application for asylum, withholding of removal, and relief under CAT, claiming that [i] his family had been interned under the Communist regime; [ii] he was an active supporter of the Albanian Democratic Party after 1991; and [iii] he had been harassed and beaten by the Albanian police on six separate occasions on account of both his own and his family's political activities.

At his December 3, 2002 hearing before the IJ, Hoxhallari testified as follows:

• The Communist regime seized the property of his once well-to-do family, and interned them for a decade ending in 1988.

• After 1988, his family suffered discrimination on account of the role of his father and uncle as founders of the local Democratic Party.

• In 1991, Hoxhallari's father was arrested, detained, beaten and threatened.

• During the 1997 election, four armed men threatened Hoxhallari and his family, warned them not to vote for the Democratic Party, and fired shots at his house.

• In September 1998, Hoxhallari participated in a rally that was broken up by the police, who hit the demonstrators with rubber sticks, held them in a police station for twenty-four hours, and pummeled Hoxhallari a second time.

• In October 2000 (after Hoxhallari had supported another Democratic candidate), five policemen beat Hoxhallari and his brother with rubber sticks, yelled at their mother, and handcuffed them before leaving. After complaining to the police, he was accused of making wrongful allegations and beaten with rubber sticks.

• Thereafter, Hoxhallari fled to Macedonia, where he arranged his entrance to the United States.

On cross-examination, Hoxhallari conceded that his parents and sister have lived unmolested in Albania since 1991, and that the Democratic Party won three parliamentary seats in the 2000 elections.

In an oral decision, the IJ denied Hoxhallari's application. As to Hoxhallari's claim of persecution pre-1991 under the Communist regime, the IJ found the events too remote to constitute past persecution in view of Albania's fundamental political changes, noting that Hoxhallari and his family came to no harm between 1992 and 1997, when the Democratic Party was in control. The IJ acknowledged that the conditions in Albania were unstable and that the Socialist party took control in 1997, but rejected as incredible Hoxhallari's claim that he had been arrested in the post-1997 period because of his political activities, particularly since Hoxhallari's father—identified as a founder of a branch of the Democratic Party—"had no difficulty or problems with the Socialist Party since the respondent's alleged departure." The IJ further found that fundamental political changes after 1991 adequately rebutted any presumption of future persecution. Accordingly, the IJ concluded that Hoxhallari failed to meet his burden of proof concerning asylum, withholding of removal, or CAT.

The BIA affirmed without opinion.

DISCUSSION

I

When the BIA affirms without opinion, we review the IJ's decision as the final agency determination. See Twum v. INS, 411 F.3d 54, 58 (2d Cir.2005). We review the IJ's factual findings under the substantial evidence standard, which is met "unless any reasonable adjudicator would be compelled to conclude to the contrary," 8 U.S.C. § 1252(b)(4)(B); see Ramsameachire v. Ashcroft, 357 F.3d 169, 177-78 (2d Cir.2004); see also Cao He Lin v. DOJ, 428 F.3d 391, 401 (2d Cir.2005).

We typically afford "particular deference" to an IJ's credibility finding, "mindful that the law must entrust some official with responsibility to hear an applicant's asylum claim, and the IJ has the unique advantage among all officials involved in the process of having heard directly from the applicant." Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004) (internal quotation marks omitted). Our deferential review of a credibility finding is to ensure that it is "based upon neither a misstatement of the facts in the record nor bald speculation or caprice." Id. at 74; see also Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (explaining that an adverse credibility finding must be based on "specific, cogent reasons" that "bear a legitimate nexus" to the applicant's credibility) (internal quotation marks omitted). "[T]he fact that the BIA has relied primarily on credibility grounds in dismissing an asylum application cannot insulate the decision from review." Ramsameachire, 357 F.3d at 178.

II

A. Asylum Claim

Hoxhallari's past persecution claim rests on [i] his and his family's experiences under the Communist regime, and [ii] his recent experiences with the Albanian police under the Socialist Party regime. The IJ rejected this claim in perfunctory terms:

There were inconsistencies that were reflected in the oral testimony when compared to the written I-589 provided by the respondent; dates, presence of individuals at certain events, also, the events themselves. When question [sic] about those events the respondent was unable to be consistent with regard to his written application. . . . The Court, as a result, finds that these events go to the heart of the respondent's claim and since they are inconsistent, the Court finds that the respondent is not credible with regard to those events.

Hoxhallari argues that the IJ erred by failing to identify specific examples of his testimony that differed from his written statement given in support of his I-589 application; and that the IJ's failure to articulate specific reasons for its finding him not credible constitute reversible error.

Our caselaw is clear that where an IJ rejects a petitioner's testimony on adverse credibility grounds, the IJ must provide "specific, cogent reasons for doing so," and "[t]hose reasons must bear a legitimate nexus to the [adverse credibility] finding." Secaida-Rosales, 331 F.3d at 307. But we do not reach the question of whether the IJ's adverse credibility finding is supported by substantial evidence (and, if not, whether remand is required), because the material political changes that have taken place within Albania make Hoxhallari ineligible for asylum and withholding of removal.

"A showing of past persecution sets up a rebuttable presumption of a well-founded fear of future persecution, which is overcome only if a preponderance of the evidence establishes that a change in circumstances in the applicant's country of nationality has occurred such that the applicant's fear is no longer well-founded." Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 148 (2d Cir.2003) (internal quotation marks omitted). But "even if an alien establishes that he or she has been persecuted in the past, `asylum may be denied as a matter of [the Attorney General's] discretion if there is little likelihood of present [or future] persecution.'" Islami v. Gonzales, 412 F.3d 391, 397 (2d Cir.2005) (quoting In re Chen, 20 I. & N. Dec. 16, 18 (BIA 1989)) (brackets in original). There are exceptions, but Hoxhallari's experiences do not rise to the level of "atrocious" past persecution. See In re Chen, 20 I. & N. Dec. at 19; Islami, 412 F.3d at 394 n. 3. Nor is this a case "where the favorable exercise of discretion is warranted for humanitarian reasons even if there is little likelihood of future persecution." In re Chen, 20 I. & N. Dec. at 19. Nor has Hoxhallari demonstrated that his political affiliation caused him "more than the usual amount of ill-treatment during [the] turbulent period" in Albania. Id. at 21.

B. Withholding of Removal Claim

Hoxhallari's fear of future persecution rests on [i] his claim of past harassment as a member of the Democratic Party; [ii] his contention that "though the old Communist regime is gone, it has been reborn in the shape of the [Socialist Party], which has continued to persecute and harass its political opponents"; and [iii] the State Department country condition reports detailing human rights abuses committed against supporters of the Democratic Party.

Withholding of removal under the INA, 8 U.S.C. § 1231(b)(3), is a mandatory form...