Not For Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-1076
ILIR HOXHA,
Petitioner,
v.
MICHAEL B. MUKASEY,*
ATTORNEY GENERAL OF THE UNITED STATES
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lynch, Circuit Judge.
Jeanette Kain, Harvey Kaplan, and Kaplan, O'Sullivan &
Friedman, on brief for petitioner.
Lauren E. Fascett, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, Peter D.
Keisler, Assistant Attorney General, Civil Division, and David V.
Bernal, Assistant Director, Office of Immigration Litigation, on
brief for respondent.
December 7, 2007
*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Michael B. Mukasey is substituted for former Attorney General
Alberto R. Gonzáles as respondent.
TORRUELLA, Circuit Judge. Ilir Hoxha applied for asylum,
withholding of removal, and relief under the federal regulations
implementing the Convention Against Torture ("CAT"). An
immigration judge ("IJ") found him not credible, denied all of his
claims, and ordered him removed. He appealed to the Board of
Immigration Appeals ("BIA"), which affirmed the IJ's opinion.
Hohxa now petitions for review of the BIA's denial of his appeal,
claiming the BIA erred in finding him not credible. He also raises
a new claim that his due process rights were violated in an early
series of immigration hearings. After careful consideration, we
deny the petition.
I. Background
Hoxha is an Albanian national who entered the United
States in December 1999 on a false passport. He did not speak
English, and enlisted the help of another Albanian -- Hamdi Dega --
in preparing and filing his asylum application on September 6,
2000. Dega's brother, Agim Dega, served as Hoxha's translator
during the initial interview with an asylum officer, who then
prepared and filed an assessment memo on October 17, 2000. A
series of hearings was held before an IJ in New York. Upon
discovering that the application had been prepared by Hamdi Dega,
who is not authorized to practice law and is notorious for
inventing stories in Albanians' asylum applications, the IJ
declared that he would not consider the asylum application. Hoxha
subsequently submitted a statement, dated April 17, 2001, in which
he purported to correct the inaccuracies in the application. The
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IJ found this statement insufficient and ordered that an entirely
new application be prepared. Hoxha then prepared a second
application with the assistance of a lawyer, and submitted it on
July 25, 2001. At a subsequent hearing, the IJ berated Hoxha at
length for being so foolish as to choose Dega to assist him. No
testimony was taken at any of these New York hearings.
Hoxha requested and was granted a change of venue to
Boston. The new IJ re-marked all of the documentary evidence, and
Hoxha testified in support of his application. Hoxha stated that
he became actively involved in the Albanian Democratic Party
following the restoration of democracy in 1990. In a 1992 protest,
Hoxha and his father were arrested and held in detention for two
days; they were warned to cease their involvement in Democratic
Party activities. Despite this warning, Hoxha continued to be
active. He served as an election observer on behalf of the
Democratic Party in June 1997, and refused to certify the election
because of what he claimed was Socialist Party manipulation of the
votes. According to Hoxha, Socialist Party members threatened him
and dynamited a part of his house; he soon grew so afraid that he
agreed to certify the vote. In August 1998, the secret service
searched Hoxha's house; Hoxha was absent, but they beat his father,
who died two days later. Hoxha testified that, in September 1998,
he attended the funeral of an assassinated Democratic Party leader
and was beaten by police with rubber sticks. A few days later he
was arrested, questioned about Democratic Party activities,
threatened, and beaten again. Hoxha was arrested and detained yet
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again in October 1999, and was told he would be killed if he
continued his Democratic Party activities. Shortly thereafter,
Hoxha left for the United States.
On May 26, 2005, the IJ denied Hoxha's request for
asylum, withholding of removal, and CAT relief because Hoxha had
failed to provide credible testimony in support of his alleged fear
of persecution in Albania.1 The IJ pointed to a number of
inconsistencies between Hoxha's testimony and other evidence in the
record, including the following: (1) documents submitted by Hoxha,
Hoxha's testimony, and a written statement by Hoxha's mother
provided various different dates for when Hoxha became active in
the Democratic Party; (2) Hoxha testified that he stopped giving
money to the Party after he became unemployed in 1997, but in his
July 2001 asylum application he stated that he was employed as a
salesman from 1997 to 1999; (3) the personal statement accompanying
Hoxha's July 2001 application asserts that he was hit with a rifle
butt at the 1998 funeral; an April 2004 affidavit submitted by
Hoxha asserts he was hit with a baton; Hoxha testified that he was
hit with rubber sticks; and he makes no mention of this incident at
all in the April 2001 statement; (4) Hoxha testified that he, his
brother, and his mother were beaten when the police came to arrest
him at his home in September 1998, but neither the April 2001
statement nor the April 2004 affidavit mention this beating, and
1
At one of the several hearings in Boston, the IJ stated that he
would give no weight to the application prepared with the help of
Hamdi Dega.
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his mother's statement also makes no mention of it; (5) the asylum
officer's October 2000 assessment memo, prepared on the basis of
Agim Dega's translation, stated that Hoxha's father was hit with
the butt of a gun during the September 1998 incident, but also
states that his father died in August 1998; (6) the October 2000
assessment memo also stated that, in October 1999, Hoxha was
arrested and boiled eggs were placed under his armpits, but Hoxha
testified that no boiled eggs were ever placed under his arms; (7)
Hoxha testified at the hearing and asserted in the July 2001
statement that he was threatened by Socialists the night before the
1997 elections, but the April 2001 statement and the 2004 affidavit
state that he was threatened on the evening of the elections; (8)
Hoxha testified that an explosive device went off at his house in
July 1997, but that no one was injured; the October 2000 assessment
memo states that Hoxha and his father were injured in the
explosion; and the April 2001 statement states that Hoxha and both
his parents were injured; and (9) documents presented by Hoxha show
that the Albanian police issued him a passport after he had left
Albania, even though Hoxha claimed this same police force was
seeking to kill him for his political involvement.
The BIA affirmed the IJ's determination. While it
faulted the IJ for considering the October 2000 assessment memo, as
it had been prepared based on a translation provided by Agim Dega,
the BIA nonetheless concluded that the IJ's adverse credibility
determination was not clearly erroneous. It briefly discussed
three examples of the discrepancies in the evidence on record and
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concluded that "[i]nasmuch as the respondent failed to provide a
convincing explanation for these discrepancies -- other than to
place blame on others, including the [Democratic Party of Albania]
Secretary, his attorney's translators, and his mother's memory --
we find no clear error in the Immigration Judge's adverse
credibility determination in this case . . . ."
Hoxha now petitions for review of the BIA's adverse
credibility determination. He also raises a new claim, that the
BIA erred in neglecting to consider due process violations that
occurred at the hearings before the IJ in New York. Hoxha requests
that we vacate the adverse credibility finding and remand for
further proceedings to consider his substantive asylum,
withholding, and CAT claims. After careful consideration, we
affirm the decision of the BIA.
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II. Discussion
A. Standard of Review and Applicable Law
Ordinarily, we review decisions of the BIA only; however,
where the BIA has deferred to or adopted and affirmed findings of
the IJ, we also review the adopted portion of the IJ's decision.
Hernández-Barrera v. Ashcroft, 373 F.3d 9, 20 (1st Cir. 2004); see
also Mewengkang v. Gonzáles, 486 F.3d 737, 739 (1st Cir. 2007)
("Where the BIA has adopted the IJ's credibility determination,
. . . we review the determination of the IJ."). An applicant for
asylum must prove he is a refugee within the meaning of the
Immigration and Nationality Act, 8 U.S.C. § 1158(b)(1), which he
may do by showing "past persecution or a well-founded fear of
future persecution" based on political opinion. Ali v. Gonzáles,
401 F.3d 11, 15 (1st Cir. 2005). The evidence in support of this
showing must be both "credible and specific." Bojorques-Villanueva
v. INS, 194 F.3d 14, 16 (1st Cir. 1999).
An alien may be found incredible based on discrepancies
in testimony where "(1) the discrepancies and omissions described
by the [IJ or BIA] are actually present; (2) these discrepancies
and omissions provide specific and cogent reasons to conclude that
the respondent provided incredible testimony; and (3) the
respondent has not provided a convincing explanation for the
discrepancies and omissions." In re A-S-, 21 I. & N. Dec. 1106,
1109 (BIA 1998); see also Hoxha v. Gonzáles, 446 F.3d 210, 216-17
(1st Cir. 2006) (applying test from In re A-S-). Yet "an adverse
credibility determination cannot rest on trivia but must be based
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on discrepancies that involved the heart of the asylum claim." See
Bojorques-Villanueva, 194 F.3d at 16 (citation and internal
quotation marks omitted).
We accord "significant respect" to the adverse
credibility determination of an IJ or the BIA, provided it is
supported by specific findings in the record. Afful v. Ashcroft,
380 F.3d 1, 4 (1st Cir. 2004) (quoting Aguilar-Solís v. INS, 168
F.3d 565, 571 (1st Cir. 1999)). We review the reasons given for
disbelieving an asylum applicant under the "substantial evidence"
standard: the credibility determination "must be upheld if
supported by reasonable, substantial and probative evidence on the
record considered as a whole." Mendes v. INS, 197 F.3d 6, 13 (1st
Cir. 1999) (quoting INS v. Elías-Zacarías, 502 U.S. 478, 481
(1992)) (internal quotation marks omitted). We will uphold an
adverse credibility determination unless the record evidence would
compel a reasonable factfinder to make a contrary determination.
Stroni v. Gonzáles, 454 F.3d 82, 87 (1st Cir. 2006).
Aliens facing removal are entitled to due process under
the Fifth Amendment. Ishak v. Gonzáles, 422 F.3d 22, 32 (1st Cir.
2005). We review due process claims asserted in immigration
proceedings de novo. Zheng v. Gonzáles, 464 F.3d 60, 62 (1st Cir.
2006).
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B. Credibility Determinations
Hoxha argues that we should ignore the IJ's decision, and
look only at the reasons given by the BIA, because the BIA did not
adopt the IJ's reasoning; instead, it "rendered its own decision
based on its own review of the record and some, but not all, of the
[IJ]'s reasons." We disagree. As noted above, we read the IJ's
findings as those of the BIA to the extent that the BIA has
deferred to or adopted them. See Hernández-Barrera, 373 F.3d
at 20. In this case, although the BIA did not expressly state that
it adopted the IJ's findings concerning the discrepancies between
Hoxha's testimony and other documents in the record, it clearly
deferred to them, with one significant exception: the BIA
determined that the IJ had erred in relying in part on the October
2000 assessment memo prepared on the basis of Agim Dega's
translation. "Be that as it may," the BIA stated, "we note that
the Immigration Judge identified a number of other inconsistencies
and omissions . . . ." The BIA then proceeded to enumerate three
examples of the many given by the IJ. The Board was not required
to repeat and expressly endorse each of the IJ's reasons seriatim.
We thus turn to whether the IJ's credibility
determination, as deferred to by the BIA, is supported by
substantial evidence on the record considered as a whole. Some of
the inconsistencies cited by the IJ are trivial and, standing
alone, would probably not provide substantial evidence in support
of an adverse credibility determination. The obvious example is
the discrepancy concerning what type of weapon -- rifle butt,
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baton, or rubber stick -- was used to beat Hoxha at the 1998
funeral. Nevertheless, even disregarding the IJ's findings that
hinged upon an inconsistency between the October 2000 assessment
memo and another document or Hoxha's testimony,2 other
inconsistencies strike closer to the heart of Hoxha's asylum claim,
particularly those that have to do with whether Hoxha or his family
were harassed or beaten, and the extent of such harassment or
beatings. We discuss two examples. First, Hoxha testified that he
and his mother were beaten when the police arrested him in
September 1998; however, none of the documents in the record
mention this beating including, most tellingly, Hoxha's mother's
statement. Considering the trauma such an event would have caused,
one would expect the mother to have remembered to mention it in her
statement supporting her son's asylum application. Hoxha's
explanation that she is simply forgetful is unconvincing. Second,
Hoxha testified that no one was injured when an explosive device
was detonated at his home in July 1997; this evidence contradicted
his assertion in the April 2001 statement that he and his parents
were injured. Even ignoring the October 2000 assessment memo's
corroboration that Hoxha and his father were injured, the
discrepancy between Hoxha's testimony and the April 2001 statement
is clear and significant. When confronted with the discrepancy at
one of the hearings, Hoxha attempted to explain that what he
2
We disregard the cited inconsistency as to whether Hoxha's
father was still alive to have suffered a beating at the September
1998 funeral. We also disregard the inconsistency over whether
boiled eggs were placed under Hoxha's arms.
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intended to say in the April 2001 statement was that he and his
family suffered psychological, not physical, injury. The IJ
obviously disbelieved this explanation or was otherwise unconvinced
that it cured the discrepancy, and we see no reason to disturb this
finding.
Considering the cumulative effect of the various
cognizable discrepancies among the pieces of evidence in the
record, we find that a reasonable trier of fact would not be
compelled to reach a determination different from that of the IJ.
As such, we conclude that the IJ did not err in concluding that
Hoxha was not credible, and the BIA did not err in affirming and
adopting the IJ's adverse credibility finding.
C. Due Process Claim
Hoxha claims that he was denied due process in the New
York hearings because the IJ "ranted and raved for hours about
[his] choice of Hamdi Dega," "repeatedly implied that [he] should
not be believed" because of "choices he made with his legal
representation," and took judicial notice that Hamdi Dega had been
a high-ranking Communist official in Albania. According to Hoxha,
the notion that he would choose to associate with Hamdi Dega called
into question his story that he had been persecuted by Albanian
Socialist Party members, and this tainted his credibility in
further proceedings.
This argument is unpersuasive. An applicant claiming a
due process violation cannot prevail unless he shows that prejudice
resulted. See, e.g., Kheireddine v. Gonzáles, 427 F.3d 80, 85 (1st
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Cir. 2005). After transfer to Boston, the IJ deliberately re-
marked all the documentary evidence and conducted a completely new
hearing on the merits, thus providing Hoxha with a clean slate.
There is no indication in the respective decisions of the BIA or
the IJ, or anywhere else in the record, that either paid regard to
the observations or opinions of the IJ in the New York proceedings.
More fundamentally, Hoxha did not raise this specific claim before
the BIA, and has thus failed to exhaust administrative remedies.
See Mendes v. INS, 197 F.3d 6, 12 (1st Cir. 1999) (failure to
sufficiently raise due process claim at deportation hearings or
before BIA precludes judicial review).
III. Conclusion
The petition for review is denied.
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