Voci v. Gonzales

• Decision Date: 06 June 2005
• Docket Number: No. 04-1807.,04-1807.
• Citation: 409 F.3d 607
• Parties: Alket VOCI, Petitioner v. Alberto GONZALES<SMALL><SUP>*</SUP></SMALL>, Attorney General of the United States, Respondent
• Court: U.S. Court of Appeals — Third Circuit

409 F.3d 607

Alket VOCI, Petitioner v. Alberto GONZALES^*, Attorney General of the United States, Respondent

No. 04-1807.

United States Court of Appeals, Third Circuit.

Argued May 5, 2005.

Filed June 6, 2005.

COPYRIGHT MATERIAL OMITTED

Mark A. Goldstein, Esq. (Argued), Goldstein & Associates, Pittsburgh, PA, for Petitioner.

Peter D. Keisler Esq., Assistant Attorney General, Civil Division, Christopher C. Fuller, Esq., Dennis J. Dimsey, Esq., Lisa Wilson Edwards, Esq. (Argued), U.S. Department of Justice, Washington, D.C., for Respondent.

Before: MCKEE, SMITH, and VAN ANTWERPEN, Circuit Judges.

OPINION OF THE COURT

SMITH, Circuit Judge.

Appellant Alket Voci, a native of Albania, appeals a decision of the Board of Immigration Appeals ("BIA"), in which the BIA affirmed the Immigration Judge's ("IJ's") denial of Voci's application for asylum, withholding of removal, and protection under the United Nations Convention Against Torture ("CAT").¹ The BIA rejected the IJ's determination that Voci lacked credibility, but agreed nonetheless that Voci had failed to demonstrate eligibility for asylum or for other relief. Because Voci's testimony has been accepted by the BIA as credible, we hold that the BIA erred in determining that the incidents of police mistreatment described by Voci did not rise to the level of persecution under the Immigration and Nationality Act ("INA"). While we take no position concerning whether Voci will ultimately be entitled to the relief he seeks, the absence of analysis in the BIA's decision requires remand to the BIA, in order to permit the BIA explicitly to address the issues implicated by Voci's application for asylum. In addition, if upon remand Voci is able to establish that he suffered past persecution, it may be appropriate for the agency to address whether the government has shown that conditions in Albania have changed, such that Voci no longer has a reasonable fear of facing persecution if he were to return.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Voci's Testimony

Voci testified extensively concerning his background and family history in Albania. While Voci discussed various forms of mistreatment that his grandfather experienced under the Communist regime, these issues have little bearing on Voci's eligibility for asylum. With respect to his own persecution, Voci testified that in 1990 he became involved in the "democracy movement" that was taking hold in Albania. Voci indicated that he and other students at his high school, along with four professors, began holding meetings to discuss ways in which they could seek democratic reform. Voci indicated that the movement grew over time, and on February 20, 1991, a large protest rally was held in Korca, Albania. At this rally, protesters pulled down a large statue of Enver Hoxha, a former Communist Prime Minister of Albania. Voci testified that he was beaten by police officers at this protest, and he suffered cuts which required stitches, ultimately resulting in a lengthy hospital stay when his wounds became infected.

Voci testified that during the early 1990s, as the Democratic Party gained power and influence, he and other activists received a number of anonymous threatening letters warning them to cease their political activities. Voci also indicated that from 1990 through 1994, the police repeatedly came to his home searching for him, and they threatened his mother with harm if Voci did not cease his political activities. Voci explained that the police had videotaped the February 20, 1991, protest rally in Korca, and by reviewing these videotapes they identified Voci as one of the leaders of the rally. Along with the visits to his home, Voci also indicated that on several occasions during this same period the police came to his school looking for him, and that on these occasions Voci managed to get out of the school building without being caught.

The Democratic Party won elections in 1994, but according to Voci this did not end his persecution by the police. Voci indicated that in the years leading up to 1997, when the Socialist Party regained power, he was beaten up on many occasions by the police. Voci testified that seven of these beatings were severe, resulting in bleeding and scars. Three of these beatings occurred in connection with demonstrations in which Voci participated, and four occurred on occasions when the police accosted Voci on a street or alleyway as he walked through town. On one occasion, the police beat Voci with the blunt end of a gun, breaking his knee and causing Voci to spend several weeks in the hospital.

Voci testified that the Socialist Party regained power in 1997, and that its leadership was comprised of former Communist Party officials operating under a new name. Voci stated that he continued to face persecution after the Socialists regained power in 1997, culminating in a 1998 incident in which the police came to his parents' house, destroyed a number of the family's belongings, and beat Voci, his mother, and his sister. Voci also explained that during the mid to late-1990s he faced police harassment in connection with a restaurant that he operated with a friend and fellow Democratic Party activist. Police would come to the restaurant, harass and threaten patrons, break glasses and windows, and generally disrupt the business. Voci indicated that although the men who beat him and attacked his restaurant were often dressed in plain clothes, he recognized them as local police officers. Voci indicated that as a result of the persecution he faced, he attempted to relocate to a different part of Albania to stay with his uncle. This arrangement was only temporary, however, and he eventually fled Albania and came to the United States, arriving on March 14, 2001.²

B. The IJ's Opinion

At the conclusion of Voci's June 24, 2002, hearing, the IJ stated that he would deny Voci's petition for relief. The IJ memorialized his findings and rationale in a separate oral decision and order. The IJ indicated that he did not view Voci's testimony as credible, and concluded as well that "nothing the respondent has testified to amounts to persecution in the considered opinion of the Court." The IJ noted that "the Communists have been gone from Albania since 1991 and [ ] there is absolutely no evidence that the Socialists have persecuted the respondent prior to his coming to the United States and absolutely no proof that he is going to be persecuted again if he returns to his country." The IJ also stated that Voci had failed to prove his various allegations "to this Court's satisfaction insofar as he has not submitted any supporting documentation."

The IJ went on to discuss country conditions in Albania, noting that the State Department reports contained in the record reflected favorably on the political climate in Albania. Based upon these materials, the IJ stated:

Assuming arguendo that the respondent had indeed proven to the Court that he had been persecuted before the fall of communism and after the Socialists had taken power in Albania, the Court would nonetheless deny his instant application under 8 C.F.R. 208.13 insofar as based on the State Department Reports the Court finds that there has been a fundamental change in the circumstances in Albania such to the effect that the respondent would no longer have a well-founded fear of persecution in his country if he were indeed returned to Albania.

C. The BIA's Opinion

Voci appealed the IJ's denial of his petition to the BIA, and on February 25, 2004, the BIA issued a one-page opinion dismissing Voci's appeal. The BIA's opinion states:

The Immigration Judge's decision dated June 24, 2002, accurately sets forth the facts asserted by the respondent in support of his claim for relief from removal. While we do not agree with the Immigration Judge's adverse credibility finding, we agree that the respondent has not demonstrated eligibility for asylum and also affirm the Immigration Judge's determination that the respondent has failed to establish grounds for granting the other forms of relief requested. In sum, the respondent has not demonstrated that he has suffered past persecution in Albania. Nor has he demonstrated a well-founded fear of persecution based on a protected ground under the Act were he to return to Albania. Likewise, the respondent has not established that it is more likely than not that he would be persecuted or tortured upon return to Albania. We note that the respondent contends on appeal that the manner in which the Immigration Judge conducted the hearing, as well as the Immigration Judge's attitude toward him, deprived him of his right to a fair hearing. A review of the hearing transcript does not reveal, however, that the respondent suffered any prejudice. Inasmuch as we are in agreement with the Immigration Judge's decision, we affirm his decision based upon and for the reasons set forth herein. Accordingly, the respondent's appeal is dismissed.

(internal citations omitted).

II. JURISDICTION

We have jurisdiction over an appeal from a final order of the BIA affirming a decision of the IJ to deny an alien's asylum application. 8 U.S.C. § 1252(a)(1); see Berishaj v. Ashcroft, 378 F.3d 314, 316 (3d Cir.2004). In this case, although the BIA agreed with the IJ's decision to deny relief, it did not adopt or defer to the findings of the IJ. Instead, it expressed disagreement with the IJ's adverse credibility finding, but stated in a conclusory fashion that Voci had failed to show that he suffered past persecution in Albania. In such cases the final order we review is the decision of the BIA, not the decision of the IJ. See Miah v. Ashcroft, 346 F.3d 434, 439 (3d Cir.2003) ("The final order we normally review is the decision of the BIA, unless the BIA defers to the IJ's findings"); Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir.2001) ("Congress has granted us power to review only `final orders of removal.' Because an alien facing...