Ndrecaj v. Mukasey

• Citation: 522 F.3d 667
• Decision Date: 16 April 2008
• Docket Number: No. 07-3385.,07-3385.
• Parties: Urim NDRECAJ, Ardiana Ndrecaj, Uendi Ndrecaj, Ueda Ndrecaj, Petitioners, v. Michael MUKASEY, Attorney General of the United States, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

522 F.3d 667

Urim NDRECAJ, Ardiana Ndrecaj, Uendi Ndrecaj, Ueda Ndrecaj, Petitioners, v. Michael MUKASEY, Attorney General of the United States, Respondent.

No. 07-3385.

United States Court of Appeals, Sixth Circuit.

Submitted: February 20, 2008.

Decided and Filed: April 16, 2008.

ON BRIEF: Roger R. Rathi, Legalquest Network, Southfield, Michigan, for Petitioners. Rebecca A. Niburg, United States Department of Justice, Washington, D.C., for Respondent.

Before: MOORE and McKEAGUE, Circuit Judges; SCHWARZER, District Judge.^*

OPINION

KAREN NELSON MOORE, Circuit Judge.

The lead petitioner, Urim Ndrecaj ("Ndrecaj"), and his family seek review of the BIA's order removing them to Albania. The Immigration Judge ("IJ") concluded that Ndrecaj was not credible and thus found him and his family ineligible for asylum and withholding of removal under the Immigration and Nationality Act ("INA") and the Convention Against Torture ("CAT"). The Board of Immigration Appeals ("BIA") adopted the IJ's decision without opinion. We conclude that the evidence does not compel a contrary conclusion as to Ndrecaj's credibility, and we DENY the petition for review of the BIA's decision.

I. BACKGROUND

Ndrecaj was born in Albania. J.A. at 131 (Oct. 19, 2005, Hr'g Tr. at 29:13-16). His family had a history of opposing the then-ruling Communist Party. In 1961, his father was arrested for advocating against the Communists. J.A. at 132 (Hr'g Tr. at 30:7-17). Because of his father's political activities, Ndrecaj said that while growing up he "was persecuted by friends, guy friends and girl friends, from my own teachers, [and] from a youth organization that were formed at the time by the Communist government." J.A. at 132 (Hr'g Tr. at 30:20-25). He was even "named as a child of a prisoner against the government." J.A. at 133 (Hr'g Tr. at 31:12-13).

The Communist Party evolved into the Socialist Party, J.A. at 218 (U.S. Dep't of State, 2004 Country Report on Human Rights Practices: Albania at 9), whose main opposition has been the Democratic Party. According to Ndrecaj, he first joined the Democratic Party in 1992 but had participated in political events prior to that date. J.A. at 140-41 (Hr'g Tr. at 38:24-39:1). Ndrecaj married Ardiana in August 1997. J.A. at 131 (Hr'g Tr. at 29:24-25).

In his Application for Asylum and Withholding of Removal ("I-589"), his statement that he filed several months later to correct his I-589, and his testimony before the IJ, Ndrecaj mentioned several events that occurred in Albania. The first of these events followed a protest in September 1998. Ndrecaj told the IJ: "I participated in a protest that occurred during, September 12[, 1998] was when Azim Hajdari was assassinated." J.A. at 143 (Hr'g Tr. at 41:8-11). A few weeks after the protest, on September 21, Ndrecaj was arrested at his home for having participated in the protest. J.A. at 143 (Hr'g Tr. at 41:20-24). The officers held Ndrecaj for three days during which time he was punched, kicked, beaten with rubber sticks, and starved. J.A. at 144-45 (Hr'g Tr. at 42:20-43:3). As he was leaving the jail, they told him, "the worst is yet to come to you, your family, and to your friends." J.A. at 152 (Hr'g Tr. at 50:8-9). Upon returning home, he sought medical attention for the bruises he had sustained. J.A. at 152 (Hr'g Tr. at 50:13-17).

The original statement that Ndrecaj attached to his I-589 mentioned an arrest on September 21, 1998, following the protests after Hajdari's assassination. The I-589 was mostly consistent with his other statements in that he wrote: "They held me in their cells for three nights by torturing me both physically and psychologically." J.A. at 300 (I-589 Stmt.). There were, however, a couple of inconsistencies. First, his I-589 said that he was arrested "in the center of the village Vrake," yet his supplemental statement to correct the I-589 noted that it was a mistake and that he was actually arrested at his home in Vrake. J.A. at 308 (Supp. Stmt. at 6). Second, in contrast to his other statements, his original I-589 did not say explicitly that he had attended the September 1998 protest himself.

The second of the incidents Ndrecaj discussed occurred in February 1999. On February 22, Ndrecaj was arrested at his home for having participated in another protest. This time the officers held him for two days and mistreated him, but "it was not as severe as the first time." J.A. at 153-54 (Hr'g Tr. at 51:3-52:1). According to Ndrecaj, "[t]hey were trying to destroy me in both ways, physically and spiritually, with my ideas that I had in me, which they were the democratic idea . . . ." J.A. at 154 (Hr'g Tr. at 52:23-25). Ndrecaj was consistent with regard to this story, mentioning it in his initial I-589 statement, J.A. at 300 (I-589 Stmt.), and his supplemental statement, J.A. at 309 (Supp. Stmt. at 7), as well as in his testimony.

The third group of incidents that Ndrecaj discussed were the few occasions when officers questioned him about his political activities. In July 1999, Ndrecaj had an encounter with the area inspector. J.A. at 155 (Hr'g Tr. at 53:5-8). Then again, in January 2000, officers called him to ask him additional questions. J.A. at 157 (Hr'g Tr. at 55:1-4). Ndrecaj was consistent as to these occurrences, mentioning them in his I-589 statement, J.A. at 301 (I-589 Stmt.), and his supplemental statement, J.A. at 309 (Supp. Stmt. at 7), as well as in his testimony.

The fourth incident Ndrecaj discussed was a home visit from officers during October 2000. On October 10, 2000, officers broke into Ndrecaj's house. "They came to my house by force. They took me, and took me to the kitchen. I told my wife to leave, to go in the other room, because our children were young." J.A. at 158 (Hr'g Tr. at 56:8-10). According to Ndrecaj's testimony, the officers wanted to know whether he would tell any international agencies about voter fraud. J.A. at 159-60 (Hr'g Tr. at 57:21-58:7). When asked by the IJ whether he had observed any voter fraud, Ndrecaj testified that he noticed Socialist Party members giving extra ballots to their supporters. J.A. at 160 (Hr'g Tr. at 58:17-24). Following this event, he and his family moved to a new neighborhood. J.A. at 161-62 (Hr'g Tr. at 59:18-60:6).

Ndrecaj was not completely consistent with regard to the October 2000 event. Although all of his statements mention the officers' visit, in his initial I-589 statement Ndrecaj did not mention voter fraud, instead giving a more vague statement: "One of them began asking me questions about my activities with DP." J.A. at 301 (I-589 Stmt.). Like his testimony, Ndrecaj's supplemental statement was more detailed, stating "I believe that this attack committed by the police intended to intimidate me and prevent me from denouncing the vote fraud committed by the SP in the country." J.A. at 310 (Supp. Stmt. at 8.).

The fifth and final issue was an arrest in June 2001. This time, Ndrecaj was arrested and held for one day, during which time officers beat him and told him that he could not tell anyone that he had observed voter fraud. J.A. at 163-64 (Hr'g Tr. at 61:19-62:2). In his I-589, Ndrecaj mentioned protests on this date but did not mention being arrested. J.A. at 302. (I-589 Stmt.). He did, however, mention the arrest in his supplemental statement. J.A. at 311-12 (Supp. Stmt. at 9-10).

Ndrecaj testified that he and his family left Albania and traveled to the United States via Italy, France, and England, spending a night in each location. J.A. at 165 (Hr'g Tr. at 63:6-24). He claimed that they could not stop along the way because they were traveling under the control of the individuals who had arranged their travel. J.A. at 177 (Hr'g Tr. at 75:5-9).

On May 6, 2002, Ndrecaj signed his I-589. In that form he stated that "I know I will be arrested and tortured if I return to Albania, because of my political behavior." J.A. at 282 (I-589 at 6). Ndrecaj submitted a statement along with his I-589, but subsequently filed a statement supplementing the original because he later learned that the original statement "was unprofessionally done, and it was in a matter of way of sloppy job." J.A. at 181-82 (Hr'g Tr. at 79:24-80:1).

During Ndrecaj's testimony before the IJ, Ndrecaj mentioned how, despite the fact that the Socialist Party was no longer in control of Albania, he still feared returning. He stated that he feared the Socialists would return to power: "they would try and take over the government just like that happened in 1997 by force, which they took the government by force." J.A. at 166 (Hr'g Tr. at 64:19-21). In addition, even if the Socialists did not return to power, Ndrecaj believed that some of "the same people are in power" at police stations. J.A. at 185 (Hr'g Tr. at 83:19-23). Despite these concerns, he admitted that he was aware of no recent problems for any Democrats in Albania. J.A. at 167 (Hr'g Tr. at 65:11-13). He also admitted that his parents, still in Albania, had not suffered any physical harm, "due to their age." J.A. at 174 (Hr'g Tr. at 72:21-22).

Ndrecaj's wife also testified before the IJ. Initially, when asked if she was ever a member of a political party, she said no. At that point, Ndrecaj said something in Albanian, and she then altered her story and said she had joined the Democratic Party in 2000. J.A. at 191-92 (Hr'g Tr. at 89:24-90:21).

On October 19, 2005, the IJ entered an oral decision. The primary basis of the IJ's decision was his conclusion that "the respondent has not demonstrated to be a credible person." J.A. at 66 (IJ Dec. at 8). In addition, "the Court notes that country conditions have changed since the respondent left Albania. In fact, it is recognized [th]at the Democratic Party of Albania won an election in Albania earlier this year." J.A. at 67 (IJ Dec. at 9). Lastly, the IJ noted that even if he had believed Ndrecaj's claims of past persecution, "the Court would not grant him any discretionary asylum...