Stroni v. Gonzales

United States Court of Appeals
For the First Circuit

No. 05-2561

RENATO STRONI,

Petitioner,

v.

ALBERTO GONZALES,
UNITED STATES ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS

Before

Torruella and Lipez, Circuit Judges,

and Stafford,* Senior District Judge.

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.

July 13, 2006

*
Of the Northern District of Florida, sitting by designation.
 Stafford, 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.

I.

A.

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.

1
The functions of the INS have since been transferred to the
Bureau of Immigration and Customs Enforcement, which is part of the
Department of Homeland Security.

-2-
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

-3-
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.

B.

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.

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 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.

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 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.

C.

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

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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.

-7-
 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.

II.

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 evidence standard, reversing only if "the record

evidence would compel a reasonable factfinder to make a contrary

determination." Romilus v. Ashcroft, 385 F.3d 1, 5 (1st Cir. 2004)

(quoting Guzman v. INS, 327 F.3d 11, 15 (1st Cir. 2003)). This

-8-
deferential standard applies not only to asylum claims but also to

withholding and CAT claims. Settenda v. Ashcroft 377 F.3d 89, 93

(1st Cir. 2004). We review legal conclusions de novo, "with

appropriate deference to the agency's interpretation of the

underlying statute in accordance with administrative law

principles." Gailius v. INS, 147 F.3d 34, 43 (1st Cir. 1998).

When asked to review a credibility determination by the

BIA and/or IJ, we look to see whether the determination is

"supported by reasonable, substantial, and probative evidence on

the record considered as a whole." Bocova v. Gonzales, 412 F.3d

257, 262 (1st Cir. 2005) (quoting INS v. Elias-Zacarias, 502 U.S.

478, 481, 112 S. Ct. 812, 117 L. Ed. 2d 38 (1992)). This court

will not reverse a determination that a witness was not credible

unless "any reasonable adjudicator would be compelled to conclude

to the contrary." 8 U.S.C. § 1252(b)(4)(B); Chen v. Gonzales, 418

F.3d 110, 113 (1st Cir. 2005).

III.

A.

An individual applying for asylum must "demonstrate[ ] by

clear and convincing evidence that the application has been filed

within 1 year after the date of the [individual's] arrival in the

United States." 8 U.S.C. § 1158(a)(2)(B). There is, however, an

exception to the one-year filing requirement that applies if the

applicant "demonstrates to the satisfaction of the Attorney General

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either the existence of changed circumstances which materially

affect the applicant's eligibility for asylum or extraordinary

circumstances relating to the delay in filing an application." 8

U.S.C. § 1158(a)(2)(D). Significantly, no court shall have

jurisdiction to review any determination of the Attorney General

concerning whether an applicant for asylum filed an untimely

application or qualifies for the exception to the filing

requirement. 8 U.S.C. § 1158(a)(3); see also Mehilli v. Gonzales,

433 F.3d 86, 92 (1st Cir. 2005) (explaining that discretionary or

factual determinations with regard to the timeliness of an asylum

petition fall outside the jurisdiction of the court of appeals);

Njenga, 386 F.3d at 339 (same).

Here, the IJ found that Stroni failed to demonstrate by

clear and convincing evidence that his petition for asylum was

timely filed. The BIA adopted and affirmed this finding of the

IJ, finding, in addition, that Stroni had also failed to

demonstrate that his delay in filing was excused by extraordinary

circumstances. These findings were factual ones, based largely on

Stroni's lack of credibility. Because these findings by the BIA/IJ

are not subject to review by this court, we must dismiss Stroni's

petition for review of the denial of his application for asylum for

lack of jurisdiction.

B.

To establish eligibility for withholding of removal, an

-10-
individual has the burden of proving that, upon deportation, his

"life or freedom would be threatened in that country because of the

[individual's] race, religion, nationality, membership in a

particular social group, or political opinion." 8 U.S.C. §

1231(b)(3); Salazar v. Ashcroft, 359 F.3d 45, 52 (1st Cir. 2004).

An individual may satisfy this burden by demonstrating either that

(1) he has suffered past persecution on account of race, religion,

nationality, membership in a particular social group, or political

opinion (thus creating a rebuttable presumption that he will more

likely than not suffer future persecution), or (2) it is more

likely than not that he will be persecuted on account of a

protected ground upon his return to his native land. Da Silva v.

Ashcroft, 394 F.3d 1, 4 (1st Cir. 2005) (citing 8 C.F.R. §

208.16(b)); see also Ang v. Gonzales, 430 F.3d 50, 54 (1st Cir.

2005) (explaining that an applicant for withholding of removal must

show a "clear probability" of persecution upon removal from the

United States).

If credible, the testimony of an applicant for

withholding of removal may be sufficient by itself to sustain his

or her burden of proof as to past or future persecution. See 8

C.F.R. § 208.16(a) (2002) (providing that "[t]he testimony of the

applicant, if credible, may be sufficient to sustain the burden of

proof without corroboration"). On the other hand, if an

applicant's testimony is not credible, "it may be disregarded or

-11-
sharply discounted, depending on the circumstances." Nikijuluw v.

Gonzales, 427 F.3d 115, 121 (1st Cir. 2005). Importantly, minor or

trivial inconsistencies in an applicant's testimony are

insufficient to support an adverse credibility finding. See

Secaida-Rosales v. INS, 331 F.3d 297, 308 (2d Cir. 2003) (stating

that "[i]nconsistencies of less than substantial importance for

which a plausible explanation is offered cannot form the sole basis

for an adverse credibility finding . . . especially [ ] when the

inconsistencies do not concern the basis for the claim of asylum or

withholding, but rather matters collateral or ancillary to the

claim" (internal citations and quotation marks omitted)). Instead,

an adverse credibility finding must be based upon "discrepancies

that involve[] the heart of the [withholding] claim."

Bojorques-Villanueva v. INS, 194 F.3d 14, 16 (1st Cir. 1999).

Here, the IJ found that Stroni was not a credible witness

and so denied Stroni's request for withholding of removal. The BIA

summarily adopted and affirmed the IJ's decision, including the

IJ's finding as to Stroni's lack of credibility. Like the asylum

officer who first denied Stroni's application for asylum, the IJ

based his credibility finding on the many inconsistencies in

Stroni's testimony.

While some of the inconsistencies noted by the IJ are

trivial, others go to the heart of Stroni's withholding claim. For

example, the IJ noted that Stroni did not claim that he needed or

-12-
sought medical attention even though he claimed to have been

"significantly physically mistreated." Without stating so

explicitly, the IJ implied that Stroni's failure to seek medical

attention cast doubt on his claim that he suffered significant past

persecution. When the IJ asked Stroni about this apparent

inconsistency, Stroni responded that the "communists were at all

the hospitals." The IJ was unpersuaded by this "sweeping and

unsupported" response. The IJ was also dubious of Stroni's

claim that his family members had been told by authorities that

Stroni would be killed if he returned to Albania. When the IJ

asked Stroni why the authorities would want to kill him, given that

his father–-a founding member and an elected official of the DP--

had suffered nothing more than insults since Stroni left Albania,

Stroni stated that the authorities were only concerned with young

people and not with people over 50.2 When reminded that neither

he, in his asylum application, nor his father, in a declaration

signed in July, 2002, had mentioned this death threat, Stroni

explained that the threat was made a mere four days before the

2
In Lumaj v. Gonzalez, 446 F.3d 194, 199 (1st Cir. 2006), the
court upheld the IJ's lack-of-credibility finding in a case similar
to this one. In Lumaj, the court stated:

[The] 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.

-13-
February 2004 hearing. Stroni then went on to explain that,

although similar threats were made to his family in October of 1997

and September of 2003, he had no corroborating declarations about

the earlier threats because "nobody asked me for it."

Our review of the record, which includes transcripts from

the hearings before both IJs, does not compel us to reject IJ

Josephson's lack-of-credibility determination. As the IJ

concluded, Stroni's testimony was rife with inconsistencies and

implausibilities. When asked why he would offer for the record his

father's and uncle's declarations when those declarations

contradicted certain details in his own testimony, Stroni claimed

that he had not read the supporting declarations, adding that his

father and uncle were simply confused. Stroni had improbable

memory lapses, changed his testimony when the IJ became

incredulous, and blamed any discrepancies in his testimony on the

mistakes of others. When asked whether he had various specific

documents to corroborate his testimony, Stroni explained that the

documents had been thrown away or were otherwise unavailable. See

Dhima v. Gonzales, 416 F.3d 92, 95 (1st Cir. 2005) (explaining

that, "if the applicant is found not to be credible, corroborating

evidence may be used to bolster an applicant's credibility"

(internal quotation marks and citation omitted)). Quite simply, we

are persuaded that the record adequately supports the IJ's lack-of-

credibility finding and, in consequence, the IJ's finding that

-14-
Stroni failed to establish his past persecution. Certainly, the

record is not such that "any reasonable adjudicator would be

compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B).

We also agree with the BIA's finding that Stroni has not

established that it is more likely than not that he will be

persecuted upon his return to Albania. Stroni acknowledged that

his father and other family members have continued to live for

several years in Albania without major incident despite their

affiliation with the Democratic Party. Stroni's father, a leading

figure in the DP, was not so afraid of the police that he refrained

from obtaining an Albanian passport for Stroni from the very police

who participated in the alleged beatings. Stroni admitted that he

himself lived without incident for four months with his aunt in

Tirana before he left the country. The INS produced country

reports revealing that, since 1997, all political parties had been

active in most of the country without a pattern of mistreatment.

Given such record evidence, we cannot say that the BIA was

compelled to find that Stroni demonstrated a clear probability that

he would be subjected to persecution upon his return to Albania.

C.

An individual seeking protection under CAT must

"establish that it is more likely than not that he or she would be

tortured if removed to the proposed country of removal." 8 C.F.R.

§ 208.16(c)(2); Saint Fort v. Ashcroft, 329 F.3d 191, 196 (1st Cir.

-15-
2003) (citing § 208.16(c)(2)). "For an act to constitute torture

it must be: (1) an act causing severe physical or mental pain or

suffering; (2) intentionally inflicted; (3) for a proscribed

purpose; (4) by or at the instigation of or with the consent or

acquiescence of a public official who has custody or physical

control of the victim; and (5) not arising from lawful sanctions."

Elien v. Ashcroft, 364 F.3d 392, 398 (1st Cir. 2004); see also 8

C.F.R. § 1208.18(a)(2) (providing that "torture" is "an extreme

form of cruel and inhuman treatment and does not include lesser

forms of cruel, inhuman or degrading treatment or punishment that

do not amount to torture"). Evidence relevant to the assessment of

eligibility for CAT relief includes, but is not limited to: (1)

evidence of past torture; (2) the viability of relocation as a

means to avoid torture; (3) gross, flagrant or mass human rights

violations in the country of removal; and (4) other relevant

country conditions. 8 C.F.R. § 1208.16(c)(3).

The IJ in this case rejected Stroni's CAT claim based on

Stroni's lack of credibility. The BIA affirmed, concluding that

Stroni failed to establish that he suffered past torture in

Albania. The BIA also added that Stroni failed to show that he

could not relocate to another area of Albania to avoid torture in

the future. As we have already explained, we find substantial

record support for the IJ's lack-of-credibility finding and thus

the BIA's finding that Stroni failed to demonstrate past torture.

-16-
Because these findings are enough to doom Stroni's request for

protection under CAT, we do not reach the issue of whether Stroni

failed to show that he could not relocate to another part of

Albania to avoid future torture. Because we find that the record

falls far short of compelling a conclusion contrary to that reached

by the IJ and BIA, we affirm the decision as to Stroni's

ineligibility for protection under CAT.3

IV.

Because we lack jurisdiction over Stroni's asylum claim,

and because the record demonstrates that the findings of the IJ and

BIA are amply "supported by reasonable, substantial, and probative

evidence on the record considered as a whole," Hernandez-Barrera v.

Ashcroft, 373 F.3d 9, 20 (1st Cir. 2004), we DISMISS Stroni's

petition to the extent he seeks review of his asylum claim, and we

3
The INS maintains that Stroni has waived any challenge to
the agency's denial of his CAT and withholding claims based on the
perfunctory treatment of these claims in his appellate brief. To
be sure, without citation to the record, Stroni does little more in
his brief than assert in conclusory fashion that the BIA erred in
finding him ineligible for withholding of removal and protection
under CAT. While such perfunctory treatment is generally
insufficient to preserve these issues on appeal, we nonetheless
have considered and rejected Stroni's appeal of these issues on the
merits. See Torres-Arroyo v. Rullan, 436 F.3d 1, 7(1st Cir. 2006)
(noting that "[g]auzy generalizations are manifestly insufficient
to preserve an issue for appellate review"); Ryan v. Royal Ins.
Co., 916 F.2d 731, 734 (1st Cir. 1990)(holding that "issues
adverted to on appeal in a perfunctory manner, unaccompanied by
some developed argumentation, are deemed to have been abandoned").

-17-
otherwise AFFIRM the BIA's order and DENY Stroni's petition for

review.

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