Ferko v. Atty Gen USA

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit

4-30-2007

Ferko v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2303

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 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 06-2303

ENTELA FERKO, YLLI FERKO, KLAUDIA FERKO,

Petitioners

v.

ALBERTO R. GONZALES, Attorney General of the United States,

Respondent

On Petition for Review of an Order
of the Board of Immigration Appeals
(BIA Nos. A 95 872 966/967/968)
Immigration Judge: Esmerelda Cabrera

Submitted Under Third Circuit LAR 34.1(a)
April 20, 2007

Before: MCKEE, AMBRO, Circuit Judges, and MICHEL,* Chief Circuit Judge.

(Filed: April 30, 2007)

OPINION OF THE COURT

MICHEL, Chief Circuit Judge.

*
The Honorable Paul R. Michel, Chief Judge of the United States Court of Appeals
for the Federal Circuit, sitting by designation.
 Entela, Ylli, and Klaudia Ferko petition for review of an order for their removal.

The immigration judge (“IJ”) rejected the Ferkos’ claims for asylum, withholding of

removal, and protection under the United Nations Convention Against Torture (“CAT”)1

based on her finding that the Ferkos’ testimony, crucial to their case, simply was not

credible. The Board of Immigration Appeals (“BIA”) sustained the removal on the same

basis. Because the IJ’s adverse credibility determination is supported by substantial

evidence, we will deny the petition.

I.

Because we write solely for the parties, we recite only those facts relevant to our

analysis. On June 24, 1990, Ylli Ferko was dismissed from the police force in Tirana,

Albania, for insubordination. Fearing reprisal, he attempted to escape across the border to

Yugoslavia on September 29, 1990. He was captured before he could cross, and he was

incarcerated for three months.

After his release, the Ferkos both obtained visas to go to Greece and moved to

Athens on March 20, 1991. The Ferkos lived in Greece for about twelve years, and their

daughter Klaudia was born there in 1993. Ylli worked as a truck driver and mechanic,

and the Ferkos obtained the Greek equivalent of green cards in 1998.

The Ferkos, citizens of Albania, made multiple trips to the United States. Ylli and

Entela first entered the United States in August of 2000 as tourists. Ylli returned to the

1
United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85.

2
United States in September of 2001. Both times, the Ferkos left and returned to Greece

without incident. They did not seek asylum either time. In March of 2002, the Ferkos

obtained B-2 tourist visas for all three members of the family, authorizing them to stay in

the United States for six months. Ylli left for the United States on March 17, 2002; both

Entela and Klaudia remained behind in Greece. Ylli did not apply for asylum. Entela and

Klaudia then entered the United States on June 16, 2002.

Upon arrival, Entela applied for asylum on behalf of herself, her daughter, and

Ylli. Meanwhile, on January 30, 2003, the Ferkos were placed in removal proceedings by

the Immigration and Naturalization Service (“INS”) for overstaying their visas. After

being granted leave to file, and actually filing in March of 2003, an amended asylum

application, a hearing was held before an IJ on December 1, 2004. The IJ denied the

application and ordered the Ferkos’ removal to Albania.2 They appealed to the BIA, but

the BIA also denied them relief. The Ferkos then timely filed this appeal. We have

jurisdiction under Section 242(a)(1) of the Immigration and Nationality Act (“INA”), 8

U.S.C. § 1252(a)(1).

In addition to the above facts, the Ferkos also allege several other facts that were

disputed. First, they allege that Ylli was tortured during his three month incarceration in

Albania in 1990; he testified that he was beaten severely and subjected to water torture.

Second, they allege that beginning in 1997 while in Greece, they began receiving

2
The Ferkos testified that they could not readmitted to Greece since their lengthy
absence from the country resulted in the revocation of their green cards.

3
repeated harassing and threatening phone calls from agents of the Albanian government.

Third, they allege that on February 22, 2002, Albanian secret service operatives accosted

Ylli and demanded that he write a newspaper article on their behalf and organize and lead

a public demonstration in support of the Albanian government. Ylli refused. Finally, the

Ferkos allege that following Ylli’s last departure for the United States, Albanian secret

service agents assaulted Entela and Klaudia at their home in Greece on June 2, 2002.

Allegedly, the agents were seeking Ylli but threatened the entire family, thus prompting

Entela and Klaudia to follow Ylli to the United States. The Ferkos admit, however, that

they never reported any of the incidents in Greece to the Greek authorities. Aside from

the June 2, 2002 incident, none of these alleged facts were mentioned in either the

Ferkos’ original or amended asylum application.

II.

When, as here, the BIA has adopted the reasoning of the IJ in its decision, we

review the decision of the IJ. Kibinda v. Att’y Gen. of the United States, 477 F.3d 113,

118-19 (3d Cir. 2007). The Ferkos applied for asylum, withholding of removal, and

protection under the CAT.3 The BIA’s and IJ’s decision was based on the IJ’s adverse

3
To be eligible for asylum under Section 208 of the INA, 8 U.S.C. § 1158, the
applicant must demonstrate “persecution or a well-founded fear of persecution on account
of race, religion, nationality, membership in a particular social group, or political
opinion.” See 8 U.S.C. § 1101(a)(42)(A). To be eligible for withholding of removal
under Section 241(b)(3) of the INA, 8 U.S.C. § 1231(b)(3), the applicant must
demonstrate that his “life or freedom would be threatened in [the country of removal]
because of race, religion, nationality, membership in a particular social group, or political
opinion.” 8 U.S.C. § 1231(b)(3)(A). To qualify for relief under the CAT, the applicant

4
credibility determination against the Ferkos, finding that their testimony was not credible.

In reviewing an adverse credibility determination, we look for substantial evidence

supporting the determination. Xie v. Ashcroft, 359 F.3d 239, 243 (3d Cir. 2004). The IJ

is entitled to consider inconsistencies and omissions in the various written submissions

and testimony submitted by an applicant. Id. However, this Court has warned that such

inconsistencies may not be substantial evidence of lack of credibility when they can

reasonably be attributed to language barriers, translation issues, psychological pressures,

or the circumstances in which a statement was made. See Balasubramanrim v. INS, 143

F.3d 157, 162-64 (3d Cir. 1998).

Here, we hold that the inconsistencies between the statements in the Ferkos’

amended asylum application and their testimony at the hearing before the IJ are so

pronounced that they could not reasonably be the result of language issues or other

mitigating circumstances. First, it is important to note that the Ferkos’ amended

application was submitted several months after their original application and with the aid

of an attorney and interpreter. Further, the Ferkos had also been living in the United

States for several months by that time—nearly a year in Ylli’s case. The psychological

and situational elements that reasonably explained the inconsistencies in

Balasubramanrim did not exist here.

Second, most of the key allegations that, if proven, would support the requested

must demonstrate that it is more likely than not that he would be tortured if removed. 8
C.F.R. § 208.16(c)(2).

5
relief were wholly omitted from their amended application. At the December 1, 2004

hearing, upon questioning by their attorney and the IJ, the Ferkos for the first time alleged

that Ylli had been tortured while in prison in Albania. The hearing was also the first time

they mentioned the alleged campaign of threatening phone calls; likewise Ylli’s alleged

encounter with Albanian secret service agents in February of 2002 during which they

supposedly threatened him. While translation issues could reasonably cause facts to be

inaccurately described or misphrased, they are unlikely to have caused crucial and highly

specific details to be omitted entirely as the Ferkos claim.

Finally, contradictory evidence also casts doubt onto the Ferkos’ assertions. For

example, if Ylli escaped to the United States for safety, it is illogical that he would leave

his wife and daughter behind in Greece where, according to him, Albanian secret service

agents were highly active. And it is unlikely that a truck driver and mechanic would be

chosen to write a propaganda newspaper article such that his declining would inspire

outrage and death threats. In addition, if the Ferkos had been receiving alarming and

threatening phone calls since 1997, the fact that thereafter they came to the United States

(twice in Ylli’s case) but did not seek protection raises suspicions in light of the other

inconsistencies in the record, as does the fact that these trips did not provoke any reaction

from these alleged Albanian agents. All of these facts undermine the Ferkos’ claim of a

well-founded fear of persecution if removed to Albania.

The IJ’s adverse credibility determination goes to the heart of each of the three

claims made by the Ferkos and was well explained by the IJ. Given that this credibility

6
determination is supported by substantial evidence, we will deny the Ferkos’ petition.

7