Lumaj v. Gonzales

United States Court of Appeals
For the First Circuit

No. 05-2209

LUSH LUMAJ,

Petitioner,

v.

ALBERTO GONZALES, UNITED STATES ATTORNEY GENERAL,

Respondent.

ON PETITION FOR REVIEW FROM THE BOARD OF IMMIGRATION APPEALS

Before

Howard, Circuit Judge,
Coffin and Campbell, Senior Circuit Judges.

Charles Christophe on brief for petitioner.
Peter Keisler, Assistant Attorney General, Civil Division,
Terri J. Scadron, Assistant Director, and Claudia B. Gangi, Trial
Attorney, on brief for respondent.

April 26, 2006
 COFFIN, Senior Circuit Judge. Petitioner Lush Lumaj claims

that he fled his native Albania in 2001 because of persecution

based on his involvement with the Democratic Party. He entered the

United States using a false passport and subsequently applied for

asylum and withholding of removal. In denying his application, the

Immigration Judge (IJ) found that petitioner was not a credible

witness and that he had failed to establish eligibility for relief.

The Bureau of Immigration Appeals (BIA) affirmed without opinion.

After examining the record, we conclude that the IJ’s decision is

sufficiently supported and consequently deny Lumaj’s petition for

review. See 8 U.S.C. § 1252(b)(4)(B).1

I. Factual Background

Petitioner arrived in the United States in May 2001 and

presented a Slovenian passport bearing someone else’s name. He was

detained at Miami International Airport, and an asylum officer who

interviewed him concluded that his assertions of persecution might

be found credible if fully developed. Petitioner subsequently

submitted an Application for Asylum and for Withholding of Removal.

In his accompanying two-page statement, he reported that his

family had been persecuted through the years by the communist

regime in Albania and that they had been among the first to support

1
Section 242(b)(4)(B) of the INA, 8 U.S.C. § 1252(b)(4)(B),
provides that “the administrative findings of fact are conclusive
unless any reasonable adjudicator would be compelled to conclude to
the contrary.”

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the democratic movement that emerged in the early 1990s. He stated

that he joined the Democratic Party (DP) in 1991 and became active

in the organization’s Youth Forum, encouraging friends to join the

party and working as an election coordinator for DP candidates.

The party won the elections in 1992 and remained in power until

1997, when the Socialist Party – which petitioner links with the

Communist Party – regained control of the Albanian government.

Petitioner claims that he was actively involved with the Youth

Forum during the June 1997 elections and that his activities, which

included transporting people to the polls and to demonstrations,

were watched “by the local fanatics and the Socialist police.” He

stated that on June 29, “two well-known criminals” came to his car

window and said: “Keep it up and you’ll end up dead.” Another

incident occurred two years later, in July 1999, when petitioner

reports he was arrested at his home for participating in an illegal

rally and distributing anti-government leaflets. He claimed that

he was held in custody overnight, beaten with a rubber stick, and

told upon his release to stop supporting the DP “or you will have

problems with us.”

He remained active, however, and reported that he barely

escaped when the police came to his home to arrest him in November

2000. After hiding for a month, he resumed his political

activities and took part in several demonstrations. In January

2001, a friend dissuaded him from joining a hunger strike that was

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part of a large protest because petitioner was known as one of “the

most wanted democrats” and would be “attacked by the large

contingent of policemen.”

Petitioner wrote that, at that time, “[r]ealizing that my life

was in danger,” he made the “very difficult decision to leave my

family and escape Albania before I would get killed.” The

statement then describes his route to the United States in April

and May 2001, which began with three days in Greece and continued

with stops in Spain, France and Guadeloupe before he reached Miami.

Petitioner presented oral testimony on three separate

occasions and before two immigration judges because of continuances

in his hearing. He provided further details of his family’s

political persecution, including that his father’s uncle’s son had

been executed and his own cousin had been imprisoned for sixteen

years. He asserted that his family’s properties had been

confiscated and that he had been allowed to remain in school only

through eighth grade. Petitioner also testified, however, that his

father had served as chief in their village and that neither parent

had experienced difficulties stemming from their recent DP

involvement.2

In his testimony on April 28, 2003, he reported that his

arrest in July 1999 occurred after police forcibly entered his home

2
He reported that his mother had been interned from 1948 to
1952 by the Communist regime.

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at 11 p.m., and he stated that he was punched and beaten with

police clubs during the four- to five-hour drive to the police

station. At the resumed hearing on February 19, 2004, however,

petitioner recalled the episode differently. He stated that the

police knocked on the door when they arrived, and his mother opened

it. He then testified that he was taken to the police station,

where he was beaten with a rubber stick. On both occasions, he

said that he was told upon his release that he would be killed if

he continued to support the DP leader Berisha.

Petitioner also testified to additional details of the episode

that occurred in November 2000, when he fled his home to avoid the

police. In his testimony on June 26, 2003, he stated that he went

to a friend’s home in the mountains but returned several hours

later to a location “close to home” to meet with his father, who

told him that the police had indeed been looking for him. Again,

the February 2004 hearing revealed a changed version of the events.

At that time, petitioner stated that he remained in hiding with his

friend for a week or more, that his friend acted as a messenger

between him and his parents, and that it was the friend who relayed

the information that the police had come to arrest him.

Several other discrepancies in his story surfaced. At

different times, he stated that he was born in different years

(1972 and 1973), and he claimed at one point that he was issued

only one DP membership card – in 1991 – but he submitted a copy of

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a card issued in 2000. Earlier, he had testified that he had

received other cards but lost them.

In addition to his own testimony, petitioner presented a

witness, Rush Draju, another member of the DP who fled Albania and

was awarded political asylum in the United States. Draju testified

that petitioner was a member of the DP and had helped in his

election campaign and in other candidates’ campaigns. Petitioner

also relied on country condition reports prepared by Amnesty

International describing the ill treatment of DP supporters during

the time period in which he claimed to experience persecution.

The IJ was unpersuaded by petitioner’s presentation. Noting

the inconsistencies in his recollections about significant events,

the judge found petitioner not credible: “[H]e is testifying to

very specific salient factors that a person who is telling the

truth would not confuse.” The judge found petitioner’s demeanor to

be “evasive” and “furtive,” and he questioned his failure to seek

asylum in any of the other countries through which he traveled en

route to the United States. The judge noted that other members of

petitioner’s politically active family remain, unharmed, in

Albania, and they own the land on which they farm. The IJ further

relied, inter alia, on a report issued by the State Department

detailing the educational opportunity available for members of the

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Association of Former Politically Persecuted Persons.3 The judge

also referred to petitioner’s testimony on cross-examination that

he had completed three months of military service in 1997, but did

not resign and had no documents showing release from service.

As noted above, the IJ’s denial of petitioner’s application

was affirmed without opinion by the BIA; we therefore review the

IJ’s decision. See Susanto v. Gonzales, 439 F.3d 57, 59 (1st Cir.

2006); Olujoke v. Gonzales, 411 F.3d 16, 21 (1st Cir. 2005). In

evaluating a denial of asylum, our inquiry is limited to

determining whether substantial evidence in the administrative

record supports the IJ’s findings that petitioner neither suffered

from cognizable past persecution nor demonstrated a well-founded

fear of future persecution. Susanto, 439 F.3d at 59; Silva v.

Ashcroft, 394 F.3d 1, 4 (1st Cir. 2004).4 Those findings “must

3
Petitioner submitted a document indicating that he was a
member of the Association, which supposedly entitled him to various
benefits. The State Department’s Profile of Asylum Claims and
Country Conditions in Albania reported that “[t]he only benefit
delivered to date allows those registered to receive automatic
admittance to Albanian universities while the general population
must take highly competitive entrance exams.”
4
An alien seeking asylum must establish that he is a
“refugee” within the meaning of the Immigration and Nationality Act
(INA). See 8 U.S.C. § 1158(b)(1); Bocova v. Gonzales, 412 F.3d
257, 262 (1st Cir. 2005). To do so, an applicant must prove either
a well-founded fear of persecution based on race, religion,
nationality, political opinion, or membership in a social group, or
past persecution based on one of these five grounds (which
establishes a rebuttable presumption of a well-founded fear of
future persecution). See 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. §
208.13(b); Nikijuluw v. Gonzales, 427 F.3d 115, 120 (1st Cir.
2005).

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stand unless the record evidence is such as to compel a reasonable

factfinder to make a contrary determination.” Olujoke, 411 F.3d at

21. “Matters of witness credibility and demeanor are peculiarly

for the factfinder,” and credibility determinations supported with

specific findings are treated with “‘great respect.’” Rodriguez

Del Carmen v. Gonzales, 441 F.3d 41, 43 (1st Cir. 2006) (quoting

Laurent v. Ashcroft, 359 F.3d 59, 64 (1st Cir. 2004)).

Because we find the asylum ruling adequately supported, we do

not address petitioner’s alternative request for withholding of

removal, which “‘places a more stringent burden of proof on an

alien,’” and thus cannot succeed when an asylum claim fails, Bocova

v. Gonzales, 412 F.3d 257, 262 (1st Cir. 2005) (quoting Rodriguez-

Ramirez v. Ashcroft, 398 F.3d 120, 123 (1st Cir. 2005)); see also

Olujoke, 411 F.3d at 22.

II. Discussion

The IJ’s decision rested on his determination that petitioner

was not credible, based on observations and a number of significant

inconsistencies that cast doubt on his allegations of abusive

treatment and prompted the judge to question even his identity. In

his oral decision, the judge said that he found it “extremely

troubling” that petitioner testified twice that he was born in 1972

while his birth certificate showed a date of birth in 1973.5 As

5
In our review of the record, we could find only one instance
of petitioner stating that he was born in 1972 rather than 1973.

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previously noted, the IJ also was particularly bothered by the

inconsistent details surrounding petitioner’s detention in July

1999 and his escape from arrest in November 2000, viewing the

differences as significant evidence of fabrication. The IJ also

linked his credibility judgment to the other discrepancies noted

above – including the date petitioner received the DP membership

card and his alleged lack of access to higher education – as well

as to petitioner’s demeanor.

We conclude that the IJ’s listed reasons for questioning

petitioner’s veracity are sufficient to meet the substantial

evidence standard. Petitioner argues in his brief that the

variations in his recollections are minor and tangential, but we

think it reasonable for the judge to draw an inference of

fictionalization from the differences in petitioner’s portrayals of

the two primary episodes of asserted persecution. Indeed, we, too,

think it unlikely that petitioner could mis-remember whether the

police officers who arrested him in 1999 burst through the door or

gained entry by knocking.6 Similarly, the variation in the time

6
Of some significance, too, is the fact that petitioner did
not mention the 1999 incident during his “credible fear” interview
in 2001. The interview worksheet and the interviewer’s notes
indicate that, when asked if he or anyone in his family had been
“mistreated or threatened by anyone in any country to which you may
be returned,” he responded that he had had no past encounters but
feared that he would be a target in the future. Although this fact
was not noted in the IJ’s oral decision, it was the subject of
inquiry by the previous IJ during proceedings in June 2003.
Petitioner acknowledged that he had not reported the arrest and

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petitioner reported spending away from home after his near-arrest

in 2000 – a week vs. a month – need not be discounted as simply

imperfect memory.

Other discrepancies, while perhaps minor in isolation, add to

a reasonable inference of lack of candor. The different reported

birth dates cast some doubt on the authenticity of his submitted

birth certificate, and the DP card dated 2000, together with his

testimony that he had received such a membership card only once,

cast doubt on the veracity of his testimony that he joined the DP

party in 1991. Although we can imagine that misunderstandings

could result from imperfect translations of testimony, petitioner

does not attribute any of the variations to language barriers. The

IJ also reasonably could view the State Department’s report that

politically persecuted individuals have had access to higher

education since 1992 to indicate that petitioner was disingenuously

relying on lack of educational opportunity to bolster his

persecution claim.7

Our discussion thus far applies in some measure to both the

showing of past persecution and to the fear of future persecution.

beating, stating, through an interpreter, that “I was very tired
from the trip and I wasn’t able to explain my whole story, from my
activities, what I did in Albania and what happened to me.”
7
Petitioner also complains that the IJ’s depiction of his
demeanor as “evasive” and “furtive” was “conclusory and
unsubstantiated.” Even disregarding the demeanor appraisal would
not, however, undermine the IJ’s credibility finding, as it played
a minimal role in his analysis.

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Of particular relevance to the latter is the additional fact that

petitioner’s parents and sister remain in Albania, apparently

without imminent risk of harm, despite the family’s longstanding

history of political persecution and his father’s public status as

an elected DP official. Although petitioner points to his parents’

advanced age to explain their apparently peaceful existence, we

have no basis for treating age as a relevant distinction. As to

his subjective fear of confronting persecution if he were sent back

to Albania, the IJ pointed to petitioner’s decision to return home

for a number of months after the police came to his house in

November 2000. The judge observed that it would be “incredible”

that petitioner would return there “[i]f he truly had a fear of the

government.” Moreover, at this point, years removed from his

involvement in DP politics, there is no probative evidence that

petitioner is likely to be harmed if he returns. Thus, even if he

could show a genuine subjective fear of future persecution, he has

not met his separate obligation to establish an objectively

reasonable basis for that fear. See Nikijuluw, 427 F.3d at 121-22;

Bocova, 412 F.3d at 264.

In sum, our assessment of the record persuades us that the

IJ’s credibility judgment was grounded on an adequate foundation

and that, as a consequence, the judge supportably concluded that

petitioner failed to establish either past persecution or a well-

founded fear of future persecution. Although that outcome renders

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any further discussion unnecessary, see Olujoke, 411 F.3d at 22 (“a

fully supported adverse credibility determination, without more,

can sustain a denial of asylum”), we wish to note briefly that,

even if we fully accepted the veracity of petitioner’s claims of

abuse, we doubt that he would have established persecution within

the meaning of the INA. He describes sporadic episodes, only one

of which involved physical harm, and his mistreatment was less

severe than in cases in which we have upheld the BIA’s rejection of

persecution claims. See, e.g., Topalli v. Gonzales, 417 F.3d 128,

132 (1st Cir. 2005) (citing cases) (rejecting claim where

petitioner was arrested, detained for up to 24 hours, and beaten on

seven occasions); Bocova, 412 F.3d at 263-64 (citing cases)

(rejecting claim where petitioner was beaten twice and once

rendered unconscious: “mistreatment ordinarily must entail more

than sporadic abuse in order to constitute persecution”).

Accordingly, the petition for review is denied.

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