Stroni v. Gonzales, 05-2561.
| Decision Date | 13 July 2006 |
| Docket Number | No. 05-2561.,05-2561. |
| Citation | 454 F.3d 82 |
| Parties | Renato STRONI, Petitioner, v. Alberto GONZALES, United States Attorney General, Respondent. |
| Court | U.S. Court of Appeals — First Circuit |
Aleksander Milch, with whom Christophe & Associates, P.C., was on brief, for Petitioner.
Anh-Thu P. Mai, with whom the Office of Immigration Litigation, U.S. Department of Justice, was on brief, for Respondent.
Before TORRUELLA and LIPEZ, Circuit Judges, and STAFFORD,* Senior District Judge.
Renato Stroni ("Stroni") seeks review of an order of the Board of Immigration Appeals ("BIA") affirming the Immigration Judge's decision to deny Stroni's applications for asylum, withholding of removal, and protection under the Convention Against Torture. To the extent Stroni seeks review of the denial of his application for asylum, we dismiss his petition for lack of jurisdiction. We otherwise affirm the BIA's order and deny the petition for review.
Stroni is a native and citizen of Albania who claims that he entered the United States illegally on March 17, 2001. On March 12, 2002, almost one year after his purported entry date, Stroni filed an application for asylum with the Immigration and Naturalization Service ("INS").1 In support of his request for asylum, Stroni described several incidents of past persecution by the Socialist government of Albania, incidents allegedly based on Stroni's political affiliation and opinion. Stroni also asserted that he feared he would be killed, tortured, or arrested if he returned to Albania.
The asylum officer who heard Stroni's case found Stroni's testimony to be vague, inconsistent, and lacking in detail. Although Stroni was given the opportunity to clarify all discrepancies in his testimony, he was unable to do so successfully. In particular, the asylum officer found that Stroni's testimony regarding the date, manner, and place of his entry into the United States was not credible. The asylum officer thus rejected Stroni's application for asylum, having concluded that Stroni failed to demonstrate by clear and convincing evidence that he filed his application for asylum within one year of his entry as required by law.
Upon referral from the asylum officer, the Immigration Court placed Stroni in removal proceedings by filing a Notice to Appear dated April 15, 2002. On June 28, 2002, at an initial hearing before an Immigration Judge ("IJ") in New York City, Stroni conceded removability as charged, renewed his application for asylum, and requested withholding of removal, protection under the Convention Against Torture ("CAT"), and, in the alternative, voluntary departure. The IJ adjourned the hearing after granting Stroni's request to transfer venue to Boston, Massachusetts.
Stroni ultimately presented documentary and testimonial evidence at two hearings before different IJs in Boston. At the first hearing, held on January 17, 2003, Stroni testified before IJ Thomas Ragno. IJ Ragno continued the hearing after Stroni's testimony was concluded to allow the INS to verify information provided by Stroni as to his entry date and use of passport aliases. A second hearing was held on February 13, 2004, more than a year later, before IJ Kenneth Josephson. While acknowledging that IJ Ragno had taken testimony at the earlier hearing, IJ Josephson announced that he would hear the testimony again, explaining that he had not had an opportunity to listen to the tapes of the previous hearing. Before testimony was begun, IJ Josephson noted for the record that the computer printout from the "central indices" showed no supporting documentation for Stroni's claim regarding the date and place he entered the United States.
Briefly, Stroni testified as follows:
Stroni was an activist on behalf of the Democratic Party ("DP") in Albania, an organization that opposed the communist regime that had controlled Albania for many years. Although Stroni himself was never a member of the DP, Stroni's father was a founding member and vice chairman of a local branch of the DP. The DP rose to power in 1992 but was defeated in 1997 by the Socialist Party, then dominated by a previous leader in the communist regime.
In October 1997, 19-year-old Stroni and his father were arrested at a DP rally where they were protesting the Socialist Party's practice of firing DP supporters. While they were being held at the police station, Stroni and his father were beaten and threatened with death if they continued to support the DP. Stroni was released after one night, his father after three nights.
In March 1999, a bomb was detonated outside Stroni's home, wounding Stroni's sister in the leg. Although the incident was reported to the police, the police failed to do anything about the bombing. Stroni believes that the family was targeted by "unknown people" for political reasons.
In or about November 1999, Stroni joined the Azem Hajdari, an anti-communist organization named after a DP activist who was assassinated on September 12, 1998. Stroni began paying dues to the Azem Hajdari in January 2000, and he thereafter attended meetings once or twice a month.
On August 28, 2000, Stroni and his father were once again arrested and taken to the police station. As before, they were beaten and threatened with death if they continued to support the democratic movement. They were released the next day.
On September 12, 2000, Stroni was arrested the morning after a DP demonstration commemorating the second anniversary of Azem Hajdari's death. Stroni was released that same evening, after he was punched, kicked, and warned that he could suffer the same fate as Azem Hajdari.
On December 1, 2000, Stroni was arrested for participating in protests in his hometown of Ballish. During his two-day detention, the police beat him, threatened him, and urinated on his face while holding his head.
After this latest arrest, Stroni left Ballish and went to live with his aunt in Tirana for several months. He lived there without incident, staying mostly inside. In January 2001, Stroni's father obtained an Albanian passport for Stroni from the very police department in Ballish where he and Stroni had been mistreated. Stroni claimed that he was too afraid to get the passport himself.
Stroni departed Albania on March 11, 2001, passing through Italy, Belgium, and Munich on his way to the United States. Stroni arrived in Chicago on March 17, 2001, using not his Albanian passport but a fake Italian passport issued in the name of "Carmello Pezzotta." Stroni disposed of his Italian passport the day after he arrived in the United States.
By oral decision dated February 13, 2004, IJ Josephson ruled that Stroni was statutorily ineligible for asylum because he failed to satisfy his burden of establishing by clear and convincing evidence that he filed his asylum application within one year after his entry into the United States. Although Stroni testified that he entered the United States on March 17, 2001, the IJ specifically stated that he did not find Stroni to be credible. The IJ also noted that, in addition to Stroni's having failed to produce any documentary evidence to support his claimed entry date, the INS's "nonimmigrant information system inquiry" failed to produce any supporting check for Stroni's claimed entry under the name of "Carmelo Pezzotta."
IJ Josephson also denied Stroni's applications for withholding of removal and protection under CAT, finding that Stroni had utterly failed to demonstrate that he would be persecuted, more likely than not, if he were to return to Albania. Among other things, the IJ cited the State Department's Profile Report, which described conditions in Albania as follows:
The democratic party currently participates in most parliamentary activity.
Despite opposition claims of massive voter disenfranchisement and other manipulations, nationwide local elections held in October of 2000 made clear and unmistakable progress towards meeting democratic standards. . . .
All political parties have been active in most of the country without a pattern of mistreatment even during the dark days of 1997. There is no post communist tradition of retribution against political leaders and few instances thereof.
Albania: Profile of Asylum Claims and Country Conditions, May 2001. The IJ also noted that, as to his father and other family members who continued not only to live in Albania but also to openly support the Democratic Party, Stroni made no claim that they had suffered anything more than insults since Stroni's departure from Albania. Finally, describing some of the many inconsistencies in Stroni's testimony, the IJ simply concluded that Stroni's story about past and future persecution was not at all credible.
The BIA adopted and affirmed the decision of IJ Josephson, stating additionally that it agreed with the IJ's finding that (1) Stroni was statutorily ineligible for asylum because he both failed to meet his burden of demonstrating that he timely filed his asylum application and also failed to establish extraordinary circumstances for such delay; (2) Stroni failed to meet the heightened burden of proof to establish his eligibility for withholding removal; and (3) Stroni failed to establish his eligibility for protection under CAT because he failed to demonstrate both that he suffered torture in Albania in the past and also that he could not relocate to another area in Albania to avoid torture in the future.
This court normally reviews decisions of the BIA rather than those of an IJ. Where, as here, the BIA summarily adopts and affirms an IJ's decision, this court reviews the IJ's decision directly. Sulaiman v. Gonzales, 429 F.3d 347, 350 (1st Cir.2005) (citing Njenga v. Ashcroft, 386 F.3d 335, 338 (1st Cir.2004)). We review the BIA's additions to the IJ's decision directly.
We review the BIA's and/or IJ's findings of fact under the substantial...
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