Ceribashi v. Gonzales

[Not for Publication in West's Federal Reporter --
Citation Limited Pursuant to lst Cir. Loc. R. 32.3]

United States Court of Appeals
For the First Circuit

No. 05-2106

ENGJELL CERIBASHI,

Petitioner,

v.

ALBERTO GONZALES,
ATTORNEY GENERAL OF THE UNITED STATES,

Respondent.

ON PETITION FOR REVIEW FROM A DECISION
OF THE BOARD OF IMMIGRATION APPEALS

Before

Boudin, Chief Judge,
Coffin, Senior Circuit Judge,
and Selya, Circuit Judge.

James D. Christo and Christo & Associates, P.C., on brief for
petitioner.
Gina Walcott-Torres, Assistant U.S. Attorney, and Michael J.
Sullivan, United States Attorney, on brief for respondent.

July 21, 2006
 COFFIN, Senior Circuit Judge. Petitioner Engjell Ceribashi,

a native and citizen of Albania, entered the United States in June

2001 on a six-month visitor’s visa and applied early the next year

for asylum, withholding of removal, and relief under the United

Nations Convention Against Torture (“CAT”). Finding that

petitioner’s tale of persecution lacked credibility, an immigration

judge ("IJ") deemed him ineligible for relief; the Board of

Immigration Appeals (“BIA”) affirmed without opinion. After

carefully examining the record, we are unpersuaded that “any

reasonable adjudicator would be compelled to” reach a different

outcome, 8 U.S.C. § 1252(b)(4)(B), and we consequently deny

Ceribashi’s petition for review.

Ceribashi’s allegations of persecution prominently feature his

father’s role as a political activist in Albania in the 1940s and

the father’s execution by the Communist regime in 1946, when

petitioner was ten years old. He claims that the family

experienced various forms of ill treatment through the following

decades, including his confinement in labor camps between 1965 and

1985. Petitioner’s circumstances improved when the Democratic

Party (“DP”) controlled the Albanian government in the 1990s and he

was involved in DP activities,1 but the danger returned when the

Socialist Party came to power in 1997.

1
He claims that he participated in DP protests,
demonstrations and meetings, that he was a speaker for the party,
and that he served in the DP administration as an “inspector.”

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 Ceribashi points to two specific incidents, in addition to his

family history, to substantiate his claim of persecution. First,

he asserts that in May 1998 he was deliberately hit by a car as he

rode a bicycle to his home in Tirana. He was hospitalized for five

days and, concerned about his safety, spent most of his time at

home for the next two years. He returned to the hospital in March

2000 for surgery on his leg, and he said the second incident

occurred upon his release about two weeks later. Two men

confronted him after he left the hospital, warning that “[w]e are

not done with you and your family” and threatening to cut off his

legs or kill him if he continued his support for the Democratic

Party. Petitioner said he recognized the men as active supporters

of the Socialist Party.

Petitioner stated that his reports of the incidents to the

police were ignored because the police also were Socialist

supporters who recognized him and knew of his family background and

DP affiliation. Fearing for his life after the second assault,

petitioner went into hiding for six months and then applied for a

visa at the American embassy. He was granted a visitor’s visa in

December 2000, but did not leave Albania until June 2001 because he

lacked the funds to make the trip earlier.

Petitioner claims that if he is forced to return to Albania

his life will be at risk because of his family history and his

support for, and activities on behalf of, the Democratic Party.

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The IJ, however, had “serious issues with [petitioner’s]

credibility,” concluding that it is “highly unlike[ly] that [he]

would have been targeted in the year 1998 or even in the year 2000

by those who perhaps might have remembered his father some 53 to 55

years ago.” The IJ further noted that, even if petitioner’s

version of events were credible, “he has failed to state a claim

that is rational[] and reasonable based upon the country conditions

in Albania as reported by the United States State Department.”

Accordingly, the IJ denied all of petitioner’s claims.

Our review is limited: we consider only whether substantial

evidence in the record supports the IJ’s finding that the

petitioner failed to show a well founded fear of persecution and

thus did not establish his asylum claim; if the finding has

sufficient support, it must stand unless a reasonable factfinder

would be compelled to make a contrary determination. Lumaj v.

Gonzales, 446 F.3d 194, 198 (1st Cir. 2006) (citing Olujoke v.

Gonzales, 411 F.3d 16, 21 (1st Cir. 2005)).2 The record here is

adequate to sustain the IJ’s ruling.3

2
We review the IJ’s decision, as the BIA affirmed without
opinion. Lumaj v. Gonzales, 446 F.3d 194, 198 (1st Cir. 2006).
3
If the IJ’s asylum ruling is supported, petitioner’s
alternative request for withholding of removal necessarily will
fail. Bocova v. Gonzales, 412 F.3d 257, 262 (1st Cir. 2005). The
CAT claim has been forfeited, as it was not referenced in
petitioner’s appeal to the BIA. See Un v. Gonzales, 415 F.3d 205,
210-11 (1st Cir. 2005).

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 The IJ’s doubts about petitioner’s credibility stem in part

from variations in his story about the bicycle incident and from

the judge’s skepticism that animosity toward petitioner’s father

sixty years ago would continue to fuel persecution against

petitioner. The IJ noted that petitioner told the asylum officer

who initially interviewed him that a car door opened suddenly and

knocked him off his bicycle, but later testified that a car drove

straight at him.4 Of more significance in supporting the IJ’s

credibility judgment is that petitioner consistently reported that

no one else was on the street when the bicycle incident occurred,

but he produced a photograph of the suspect car taken by a friend

nearly two years later; the friend supposedly “was close to the

street where the incident happened,” remembered the license plate

number, and recognized the vehicle.

The IJ also observed that petitioner’s son remains in Albania,

apparently safely, and the record reveals that two of petitioner’s

siblings live there as well. Although petitioner claims that he is

4
Petitioner suggests that the content of the asylum officer’s
report may not be considered because the officer was not subject to
cross-examination. Petitioner, however, was given a chance to
respond to the report at his hearing. Asked about the discrepancy,
he stated that he could not remember the specifics of his comments
to the asylum officer “because a long time passed since that day
that I was interviewing but I know that what I said today is true
that I was riding the bicycle and the car came toward me and the
reason was to kill me.” The IJ admitted the report into evidence
as a hearsay document, noting that “I understand that you can’t
cross-examine on it.” Given this context, it does not appear that
the report was given undue weight in the IJ’s ruling.

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a target while they are not because of his DP activity and because

his brother and sister are elderly, petitioner was beyond 65 when

he left Albania and is now nearly seventy years old.

Moreover, the IJ was skeptical that petitioner played a

significant role in the DP, and the record permits such doubts. In

his application for asylum, petitioner said that he supported the

democratic movement and “took part in . . . all the demonstrations

to overthrow the communist system” and also stated that he wrote

articles in the Democratic Party newspaper. He testified that he

attended “all the meetings of the democratic party” and that he was

“a speaker for the democratic system in that time.” So far as we

can tell, however, none of the newspaper articles he authored are

in the record, and his DP membership card was dated July 2001 –

which was after his arrival in the United States.5 He offered no

other specific evidence of a leadership role in the DP, and thus

left largely unexplained why he would be targeted for harm – other

than to rely on his father’s activity half a century earlier.6

5
The IJ noted that petitioner had said he came to the United
States with his certificate of DP membership but that the
certificate was dated a month after his arrival; whether he
actually traveled with it is of little significance, but its date
does permit an inference that petitioner was not a longtime DP
activist and that he joined to bolster his asylum claim.
6
Petitioner complains that the IJ failed to give weight to
the years of persecution his family experienced as a result of his
father’s political activity. We think it evident that the judge
considered that evidence, but deemed it largely irrelevant to the
issue of petitioner’s current risk of persecution.

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Additionally, the IJ could have discounted the seriousness of any

threat because petitioner remained in his home without incident for

two years after the bicycle episode and then waited a year after

the hospital episode to leave the country. Although he reported

that he was in hiding for that final year, he also testified, in

response to a question, that he lived in the same residence between

1998 and 2001, the year of his departure.

The IJ also pointed to other weaknesses he perceived in

petitioner’s story: he said it was implausible that Socialist Party

gang members would be driving late-model Mercedes vehicles, as

petitioner had alleged; he doubted that local police officials

would recognize petitioner as the son of a political activist whose

involvement had been a half-century earlier, or that such identity

would “make any difference to them”; and he thought the possibility

that a U.S. embassy official would issue a visitor’s visa to an

individual who said he wanted to apply for political asylum was “so

highly unlikely as to be on the verge of being preposterous.”

While these latter observations must be characterized as

speculation rather than fact-finding based on record evidence, the

ultimate inferences drawn by the IJ were not unreasonable given the

sum total of petitioner’s presentation. The generalities,

inconsistency and gaps in his narrative diminished its

persuasiveness, and the U.S. Department of State’s Profile of

Asylum Claims and Country Conditions for Albania, on which the IJ

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relied, gave weight to the judge’s view that petitioner’s account

was, in various respects, implausible. The IJ noted that the

report, dated May 2001, stated that “[t]here is virtually no

evidence that individuals are targeted for mistreatment on

political grounds,” observing that “[f]ar more prevalent is

organized and amateur crime,” exacerbated by, inter alia, police

corruption, widespread availability of firearms, “and a culture of

blood feud that is wholly independent of political activity.”7

Petitioner complains that the IJ ignored record evidence of

politically motivated violence, but the serious incidents described

in the documents submitted on his behalf occurred in 2001 or

earlier, and the most recent report in the record – the State

Department’s Country Report on Human Rights Practices in 2002

(dated March 2003) – noted that there were no confirmed cases of

political killings by the government or its agents, no reports of

politically motivated disappearances, and “no confirmed cases of

detainees being held strictly for political reasons.” From these

reports, the IJ reasonably could have concluded that conditions in

Albania with respect to politically motivated violence had improved

since petitioner’s departure.

7
In Waweru v. Gonzales, 437 F.3d 199, 202 n.1 (1st Cir.
2006), we noted that “[t]he Board of Immigration Appeals is
entitled to rely on the State Department’s country reports as proof
of country conditions described therein, although it must also
consider evidence in the record that contradicts the State
Department’s descriptions and conclusions.”

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 To be sure, the record materials make it clear that human

rights abuses by the police and other institutions continued to

occur; that evidence does not lead inevitably, however, to a

conclusion that petitioner would be at risk on account of his

political affiliation if he returned to Albania. Indeed, Amnesty

International’s report noted that similar brutality existed under

the DP regime as well. Also relevant to the IJ’s assessment of

petitioner’s claim is that the two most recent episodes of

politically motivated violence reported – the death of a DP

“leader” in police custody in 2001 and the killing of a DP

“activist” in 2000 – affected DP members who appeared to have

significantly more involvement than petitioner. In addition, the

2002 Country Report on Human Rights Practices stated that the

Albanian government completed its investigation into a 1998 murder

of a DP leader, with four suspects convicted and sentenced to

prison terms between 2 1/2 years to life, allowing the IJ to infer

that violence against DP supporters was not – or at least not

always – condoned by the government.

Also of note, from a different perspective, are a 2002 World

Report from Human Rights Watch and a 2001 report from Amnesty

International, which stated that the head of the DP’s Tropoja

branch was arrested at his home in January 2001, allegedly for his

role in a November 2000 attack on a police station, and later was

brutally assaulted. The IJ reasonably could have concluded that,

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if petitioner were truly a political target, he, too, would have

been pursued at home.

The country condition material thus did not compel the

conclusion that petitioner would be at risk based on his and his

father’s support of the Democratic Party if he were to return to

Albania. Given petitioner’s age, the apparent decline in

politically motivated incidents, and the not unreasonable inference

of partial fabrication drawn by the IJ from petitioner’s hearing

testimony and other statements, his ruling was supportable. On

this record, even if we credited petitioner’s accounts of the two

assaults, we would lack the authority to override the IJ’s finding

that petitioner lacked a well-founded fear of future persecution.

See Lumaj, 446 F.3d at 198 n.4. (government may rebut presumption

regarding future persecution that arises from past persecution)8;

see also Makhoul v. Ashcroft, 387 F.3d 75, 79 (1st Cir. 2004) (“[A]

reviewing court can reverse the BIA only if the record

unequivocally indicates error.”).9

8
If an asylum applicant can establish past persecution, he is
presumed to be a refugee for purposes of eligibility for asylum.
Makhoul v. Ashcroft, 387 F.3d 75, 80 n.3 (1st Cir. 2004). “This
presumption shifts the burden to the government to show that
conditions in the applicant’s home country have changed to such an
extent that he has no well-founded fear of future persecution.”
Id. (citing 8 C.F.R. § 208.13(b)(1)).
9
In his brief to this court, petitioner invokes “humanitarian
asylum,” a discretionary doctrine sometimes available even when
there is little likelihood of future persecution. See Waweru, 437
F.3d at 205 (“[T]his is granted only in cases of ‘extraordinary
suffering . . . .’”); see also 8 C.F.R. § 208.13(b)(1)(iii)(A);

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 Accordingly, the petition for review is denied.

Matter of Chen, 20 I. & N. Dec. 16, 19-21 (BIA 1989). Because this
basis for relief was not previously raised, we do not consider it.
See Olujoke v. Gonzales, 411 F.3d 16, 22-23 (1st Cir. 2005).

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