Nreka v. United States Attorney General

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 16, 2005
No. 04-10009
THOMAS K. KAHN
________________________ CLERK

Agency No. A79-091-876

FRED NREKA,

Petitioner,

versus

UNITED STATES ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________

(May 16, 2005)

Before BARKETT, HILL and FARRIS *, Circuit Judges.

*
Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
BARKETT, Circuit Judge:

Fred Nreka, a native and citizen of Albania who sought admission to the

United States under the Visa Waiver Program (“VWP”), petitions for review of the

Board of Immigration Appeals’ (“BIA”) order adopting and affirming the

immigration judge’s (“IJ”) decision to deny him asylum and withholding of

removal under the Immigration and Nationality Act (“INA”) and the United

Nations Convention Against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment (“CAT”). For the reasons discussed below, we conclude

that we have jurisdiction to review a BIA determination regarding asylum and

withholding of removal of a VWP applicant. That being so, however, on the

merits of Nreka’s claims on appeal, we affirm the BIA’s and IJ’s decisions denying

asylum-related relief.

I. Relevant Facts and Procedural History

On July 7, 2001, Nreka, a native and citizen of Albania, arrived in the United

States and attempted to gain entry with a fraudulent passport. Nreka was detained

and the INS 1 initiated immigration proceedings by filing a Notice of Referral to an

IJ (Form I-863). Because he attempted to enter the United States with a Swedish

1
The Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135, was signed
into law on November 25, 2002. The Act created a new Department of Homeland Security,
abolished the INS, and transferred its functions to the new department. Because this case was
initiated while the INS was still in existence, we refer to the agency as the INS.

2
passport, and Sweden is a participant country of the Visa Waiver Program, see

INA § 217(a), 8 U.S.C. § 1187(a), Nreka was identified as a “VWP applicant.” 2

Nreka requested asylum and was therefore placed in so-called “asylum only

proceedings,” pursuant to 8 C.F.R. §§ 217.4 and 208.2(c). While awaiting his

hearing before the IJ, he was paroled into the United States. See 8 U.S.C. §

1182(d)(5)(A).3

In his application for asylum and his testimony before the IJ, Nreka claimed

that the Albanian government, which represented the Socialist Party (“SP”),

persecuted him based upon his political opinion and membership in the Democratic

Party (“DP”). Nreka began as a DP sympathizer in 1997, assisting the party by

providing security for the DP headquarters. He became a party member in 1998,

and continued participation by organizing events such as meetings, protests and

demonstrations. Nreka stated that he supported the DP because, unlike the SP, the

2
As explained infra, under the VWP, the Attorney General is permitted to allow aliens
from certain countries to enter the United Sates for up to 90 days without a visa as nonimmigrant
visitors. See 8 U.S.C. § 1187(a); 8 C.F.R. § 217 et seq.

Nreka’s notice of referral form classifies him as a “VWPP” applicant, referring to the
“Visa Waiver Pilot Program.” Congress amended the statute in 2000 to make the program
permanent. See Visa Waiver Permanent Program Act, Pub. L. 106-396, 114 Stat. 1637 (2000).
The program is now referred to as the “Visa Waiver Program.” See 8 U.S.C. § 1187.
3
A grant of temporary parole is not considered admission to the United States. See 8
U.S.C. § 1182(d)(5)(A) (“[P]arole of [any alien applying for admission to the U.S.] alien shall
not be regarded as an admission of the alien . . . .”); Kwai Fun Wong v. United States, 373 F.3d
952, 958 n.8 (9th Cir. 2004).

3
 DP did not detain and mistreat the people and had recognized human rights

while it was in power.

Nreka alleged that after he joined the party, the police – as a result of his

being on a list proposed by the president of Albania – started persecuting him and

his family. He described several incidents of persecution. First, Nreka claimed

that he was beaten by a group of eight to ten policemen while on his way home

from a DP meeting in June of 1998. Nreka stated that the policemen stopped him,

telling him that they wanted to clarify some things about the DP, and then took him

to a beach and beat him up with batons, rubber sticks, and the barrel of a gun. The

officers allegedly broke Nreka’s leg and left him unconscious, and he woke up in

Shkoder hospital. Nreka told the IJ that he paid to be transferred to a military

hospital because he did not trust the doctors at Shkoder hospital.

Second, Nreka testified that on several occasions in 1998, the police went to

his family’s house to search for him. They allegedly asked about his whereabouts,

shoved his parents to the ground, and hit his brother and wife.

Third, Nreka stated that he was arrested and detained for twenty-four hours

by the police in October of 2000 while on his way home from the DP’s

headquarters in Shkoder. A group of police officers stopped him on the road and

told him to come with them “to clarify some things.” He alleges that the officers

4
took him to a cell and threatened that if he did not cease his DP activities, they

would do to him what they did in June of 1998 when they broke his leg, and would

“destroy, or burn” his family. After he was released uninjured, Nreka stayed at his

parents’ house for two days, and then moved from place to place, until he fled to

the United States.

On cross-examination, Nreka conceded that between June of 1998 and

October of 2000, he had also been detained by the police approximately seven

other times, for one to two hours each. He explained that on these occasions, he

was one of several people randomly stopped and searched by the police because

they were suspected of possessing illegal weapons.

Some of Nreka’s family continues to live in Albania, including his mother,

who has received a government pension for the past five or six years; his wife, who

could not afford the trip to the United States; and two brothers, one of whom Nreka

says has also experienced problems because of his affiliation with the DP.

In addition to Nreka’s testimony about the above incidents, Nreka presented

the following documentary evidence: (1) an identification card showing his

membership in the DP; (2) a letter from the DP, stating that Nreka had protected

democratic institutions from being burned down during a 1997 communist

rebellion and that he had been “prosecuted, threatened[,] and ill-treated from the

5
ex-security of the communist state,” which posed a serious threat to his life; and

(3) a letter from Shkoder hospital, stating that he stayed in the hospital from June

17, 1998, to June 19, 1998, and then transferred to the military hospital.4

The IJ denied Nreka’s application for asylum and withholding of removal

under the INA and the CAT. After summarizing the testimonial and documentary

evidence presented by Nreka, and explaining the standard for establishing a well-

founded fear of future persecution, the IJ stated that “much of the evidence that has

4
Nreka also submitted the U.S. Department of State’s “2000 Country Report on Human
Rights Practices in Albania” (“2000 Country Report”), which stated, inter alia, that (1) Albania
is a republic with a multiparty parliament, prime minister, and president who was elected by
parliament; (2) the SP won 121 of 155 seats in parliament in the 1997 Albanian elections, which
occurred “after a 5-month period of chaos and anarchy due to the collapse of [investment]
pyramid schemes”; (3) one of the biggest problems with internal security was untrained and
unreliable police officers; (4) the government generally respected human rights, but there were
still numerous, serious problems; (5) despite the DP’s credible claims that its members were
harassed and beaten by the government, there were no confirmed cases of political killings by
the government; (6) although the constitution stipulated against torture and brutal treatment,
police officers often beat and mistreated suspects and prisoners; (7) more than 190 police
officers were fired in 2000 because of “incompetence, lack of discipline, or violations of the
law”; (8) the police continued to arrest and detain people arbitrarily; and (9) Albanians who fled
were welcomed back and could have their citizenship restored.

Among other documents, the INS submitted the Bureau of Democracy, Human Rights
and Labor’s May 2001 report entitled “Albania: Profile of Asylum Claims and Country
Conditions” (“2001 Profile”), which stated that (1) the collapse of financial pyramid schemes in
1997 caused many Albanians to lose their life savings and provoked fighting and disorder in the
country; (2) during 1997, 700,000 firearms were looted from military depots; and (3) order was
restored with the formation of a government of national reconciliation, and in June of 1997
national elections brought the SP to power. The 2001 Profile further stated that “[t]here is
virtually no evidence that individuals are targeted for mistreatment on political grounds,” and
that “[f]ar more prevalent is organized and amateur crime, exacerbated by the widespread
availability of firearms, high unemployment and poverty, continued corruption among the police
and a culture of blood feud that is wholly independent of political activity.” The Profile stated
that the SP currently led a coalition government and that “all political parties have been active in
most of the country without a pattern of mistreatment . . . .”

6
been submitted, as well as the testimony, tends to be not substantial to the extent

that it would reach the standards which would need to be achieved to satisfy the

burden of proof relating to political asylum.” He observed that Nreka’s testimony

was “general in nature and limited to details that are apparently readily available in

the [U.S. Department of State’s] 2000 Country Report [on Human Rights Practices

in Albania] or other general documents relating to Albania” and noted his concerns

about Nreka’s credibility. He observed that Nreka’s mother continued to receive

her government pension and stated his belief that Nreka’s family would have been

affected if the government sought to harm Nreka. The IJ found it “a little bit

straining of credulity” that the president had an agenda that was specifically

adverse to Nreka, considering that Nreka was not heavily involved in the struggle

between the SP and the DP. Lastly, the IJ found “troubling” the fact that Nreka

sought a transfer to the military hospital instead of a general hospital since he

claimed to fear the government. The IJ ultimately found “the respondent’s arrival

in the country by use of fraud, his testimony, and the evidence presented to be

insufficient to meet his burden of proof, and this Court finds that his application for

political asylum, withholding of removal and relief pursuant to the Torture

7
Convention should be denied, and are hereby denied.” The IJ did not expressly

order Nreka removed.5

Nreka appealed to the BIA, arguing that the IJ erred in denying him asylum,

withholding of removal under the INA, and CAT relief. The BIA adopted and

affirmed the IJ’s determination, agreed that Nreka’s claim was “not credible,” and

dismissed Nreka’s appeal. Nreka timely filed this petition for review.

III. Discussion

A. Jurisdiction

The first question presented is whether, under the INA as amended by the

Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L.

No. 104-208, 110 Stat. 3009 (1996) (“IIRIRA”), we have jurisdiction over a

5
This is because Nreka was referred to the IJ for asylum only proceedings, where,
according to agency regulation, the scope of the proceeding is limited exclusively to asylum-
related relief, such that the alien cannot contest admissibility, removability, or raise claims
concerning his eligibility for other forms of relief. See 8 C.F.R. § 208.2(c)(3)(i) (asylum-only
procedures for VWP applicants). It is not clear, however, that 8 C.F.R. § 208.2(c)(3)(i) is a
reasonable interpretation of 8 U.S.C. § 1187(b), given that the waiver of rights described in the
statute is a prerequisite for admission under the VWP, and Nreka was never so admitted.
Although we do not face this issue now, it seems unlikely that the INS can reject Nreka’s
admission under the VWP, but nevertheless hold Nreka to the VWP waiver as if he had been
admitted. It also seems unlikely that such waiver can justify proceedings different from the
proceedings established by the INA for aliens at the border who arrive with fraudulent
documents but seek asylum. No court has yet addressed this issue. In every appellate case
dealing with VWP waivers, the alien was in fact admitted under the program, but after violating
its terms (e.g., overstaying the 90 days), sought relief from subsequent removal proceedings.
See Handa v. Clark , 401 F.3d 1129, 1132 (9th Cir. 2005); Wigglesworth v. INS, 319 F.3d 951,
954 (7th Cir. 2003); Itaeva v. INS, 314 F.3d 1238, 1239 (10th Cir. 2003); Auguste v. Reno, 152
F.3d 1325, 1326 (11th Cir. 1998); Nose v. Att’y Gen., 993 F.2d 75, 77 (5th Cir. 1993).

8
petition for review of a BIA order that denies asylum and withholding of removal

but does not expressly order removal of a VWP applicant in “asylum only

proceedings” pursuant to INA § 217(a), 8 U.S.C. § 1187(a) and 8 C.F.R. §§ 217.4

and 208.2.6

INA § 242, 8 U.S.C. § 1252, is the jurisdictional basis for immigration

determinations post-IIRIRA. It states:

(a) Applicable provisions
(1) General orders of removal

Judicial review of a final order of removal (other than an order
of removal without a hearing pursuant to section 1225(b)(1) of
this title) is governed only by chapter 158 of Title 28, except as
provided in subsection (b) of this section . . .

(2) Matters not subject to judicial review

6
In this case, the Court raised the question sua sponte, asking the parties to brief the
following jurisdictional question:

Whether this Court has jurisdiction under 8 U.S.C. § 1252(a)(1), (a)(2)(A) (which
governs “final order[s] of removal”), or otherwise to consider a petition for
review filed by an applicant for the Visa Waiver Program (“VWP”), INA § 217, 8
U.S.C. § 1187 and 8 C.F.R. § 217 et seq., of the Board of Immigration Appeals’s
affirmance of an Immigration Judge’s opinion, which was issued pursuant to
“asylum only proceedings” under 8 C.F.R. § 217, 8 C.F.R. § 208.2(c), and which
denied asylum and withholding of removal without expressly ordering the alien’s
removal? See Itaeva v. INS, 314 F.3d 1238 (10th Cir. 2003) (persuasive
authority); In Re Kanagasundram, 22 I. & N. Dec. 963 (BIA 1993).

(Footnote omitted). See Fitzgerald v. Seaboard Sys. R.R., Inc., 760 F.2d 1249, 1251 (11th Cir.
1985) (“A federal court not only has the power but also the obligation at any time to inquire into
jurisdiction whenever the possibility that jurisdiction does not exist arises.”); Galindo-Del Valle
v. Att’y General, 213 F.3d 594, 599 n.2 (11th Cir. 2000). Both the Attorney General and the
appellant take the position that we have jurisdiction under the circumstances presented here.

9
 ...
(B) Denials of discretionary relief

Notwithstanding any other provision of law, no court shall have
jurisdiction to review – . . . (ii) any other decision or action of the
Attorney General the authority for which is specified under this
subchapter to be in the discretion of the Attorney General, other than
the granting of relief under section 1158(a) of this title.

8 U.S.C. § 1252. In relevant part, 8 U.S.C. § 1158(a)(1) permits “[a]ny alien who

is physically present in the United States or who arrives in the United States . . .

irrespective of such alien’s status, [to] apply for asylum . . . .”

Nreka applied for asylum and withholding of removal under 8 U.S.C. §

1158(a) and the CAT and now appeals the BIA’s (and IJ’s where applicable) final

determination denying such relief. We have jurisdiction to review his claim under

the jurisdictional grant in § 1252(a)(1). We agree with the INS’s position that,

assuming that the “final order of removal language” of § 1252(a)(1) acts as a

condition precedent to the grant of jurisdiction throughout the remainder of § 1252,

the denial of asylum and withholding of removal in Nreka’s case constitutes a

“final order of removal” for jurisdictional purposes. See Del Pilar v. Att’y Gen.,

326 F.3d 1154, 1156-57 (11th Cir. 2003) (holding that a BIA decision reversing

the IJ’s grant of a waiver of inadmissibility under INA § 212(c) was a final order

of removal because there was nothing left for Del Pilar to appeal); Perkovic v. INS,

33 F.3d 615, 618-19 (6th Cir.1994) (holding that a BIA order reversing an IJ’s

10
grant of asylum and remanding the case was a “final order of deportation” and

noting that it was not “aware of [any] authority for the proposition that a [BIA]

order rejecting an asylum application is not a final order unless a formal order of

deportation has already been issued”); cf. Khup v. Ashcroft, 376 F.3d 898, 902

(9th Cir. 2004) (exercising jurisdiction pursuant to 8 U.S.C. § 1252(a)(1) over a

petition for review of the denial of relief from removal by an alien placed in

proceedings for overstaying his period of lawful admission under the VWP). The

denial of an asylum application in a VWP proceeding is so closely tied to the

removal of the alien that it can be deemed – in conjunction with the referral to the

immigration judge – as a final order of removal, subject to § 1252(a)(1).7

We do not find any significant distinction in Nreka’s VWP status. Our

interpretation places an unsuccessful VWP applicant seeking asylum in the same

position as other aliens who arrive at the border without valid entry documents and

whose asylum claims are referred to the IJ. See, e.g., D-Muhumed v. Att’y Gen.,

388 F.3d 814, 815-816 (11th Cir. 2004) (reviewing denial of asylum and

withholding of removal of inadmissible alien stopped at the border with fraudulent

7
Moreover, § 1252(a)(2)(B)(ii) – which, unlike 1252(a)(1), contains no language that
could be interpreted as requiring that the petitioner be subject to a “final order of removal” –
may itself provide a grant of jurisdiction to review any denial of asylum. See Gedeon v. Att’y
Gen., 03-15785 at *5-6 (11th Cir. Nov. 5, 2004) (unpublished) (“First, this Court’s jurisdiction to
entertain [an unsuccessful VWP applicant’s] petition for review of the denial of his asylum
application is found in 8 U.S.C. § 1252(a)(2)(B)(ii).”) (citing Haoud v. Ashcroft, 350 F.3d 201,
205 (1st Cir. 2003), and Tsevegmid v. Ashcroft, 336 F.3d 1231, 1234 (10th Cir. 2003)).

11
entry documents); see also Asylum Seekers in Expedited Removal, Report of the

U.S. Comm’n on Int’l Religious Freedom, at 52-53 (describing judicial review

available to inadmissible aliens whose asylum applications are referred to an IJ); 8

U.S.C. § 1225(b) (describing referral to IJ of aliens from expedited removal

proceedings to regular removal proceedings). There is nothing in the VWP statute

to indicate that unsuccessful VWP applicants should be treated differently than any

other inadmissible alien stopped at the border who has established sufficient

credible fear of persecution to be referred to an IJ for a hearing.8

B. Asylum and Withholding of Removal

This Court reviews only the decision of the BIA, “except to the extent that it

expressly adopts the IJ’s opinion.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284

(11th Cir. 2001). Because the BIA in this case “adopted and affirmed” the IJ’s

decision, this Court will review the IJ’s analysis as if it were the BIA’s. Id.

To the extent that the BIA’s (or IJ’s) decision was based on a legal

determination, review is de novo. See Mohammed v. Ashcroft, 261 F.3d 1244,

1247-48 (11th Cir. 2001). The IJ’s factual determination that an alien is not

8
Our jurisdiction over the denial of asylum extends to Nreka’s asylum-related claims of
withholding of removal under the INA and CAT. See 8 C.F.R. 208.2(c)(3)(i) (limiting the scope
of review in asylum-only proceedings to “a determination of whether the alien is eligible for
asylum or withholding or deferral of removal, and whether asylum shall be granted in the
exercise of discretion.”).

12
entitled to asylum must be upheld if it is supported by “reasonable, substantial, and

probative evidence on the record considered as a whole.” Antipova v. Att’y Gen.,

392 F.3d 1259, 1261 (11th Cir. 2004) (internal citation and quotation marks

omitted).

In this case, at the end of the discussion of the evidence, the IJ concluded as

follows:

[T]his Court finds the respondent’s arrival in the country by use of
fraud, his testimony, and the evidence presented to be insufficient to
meet his burden of proof, and this Court finds that his application for
political asylum, withholding of removal and relief pursuant to the
Torture Convention should be denied and are hereby denied.

IJ Order at 11.

We note that Nreka did not present any false documents to the IJ in support

of his claim. Rather, the IJ’s reference to fraud related to Nreka’s use of the false

Swedish passport to enter the United States. We initially observe in this regard

that documents to facilitate travel or gain entry into the United States cannot in and

of themselves be used as the basis to deny asylum. As recognized by the BIA in In

re O-D, 21 I. & N. Dec. 1079 (BIA 1998), “there may be reasons, fully consistent

with the claim of asylum, that will cause a person to possess false documents, such

as the creation and use of a false document to escape persecution by facilitating

travel.” Id. at 1083; accord Akinmade v. INS, 196 F.3d 951, 956 (9th Cir. 1999)

13
(asylum applicant’s use of fraudulent documents to gain entry into the United

States “cannot serve as a basis for an adverse credibility determination”); see also

id. (making comparison to the distinction between false statements that “involve []

the heart of the asylum claim,” which affect credibility, and false statements that

are only “incidental” to the claim, which do not).

Nevertheless, we affirm because substantial evidence supports the IJ’s

conclusion that Nreka did not meet his burden of proof of establishing that he is a

“refugee” as defined under the INA. See 8 U.S.C. § 1101(a)(42)(A); INS v.

Cardoza-Fonseca, 480 U.S. 421, 427-28 (1987). In light of the IJ’s express

concerns9 about the credibility of Nreka’s testimony on key elements of the claim,

and Nreka’s failure to rebut these with sufficient corroborating evidence and

explanation, it cannot be said that the evidence compels the conclusion that he

suffered past persecution on account of his political opinion in the DP or that he

has a “well-founded fear” that his political opinion will cause future persecution.

INS v. Elias-Zacarias, 502 U.S. 478, 481 & n.1 (1992); Sepulveda v. Att’y Gen.,

401 F.3d 1226, 1230 (11th Cir. 2005).

Substantial evidence also supports the IJ’s determination that Nreka is not

entitled to withholding of removal under the INA or CAT. Because Nreka has

9
We note, however, that the IJ could certainly have been clearer as to whether he was in
fact making an adverse credibility determination.

14
failed to establish eligibility for asylum, he has likewise failed to establish

eligibility for these other forms of relief. See Al Najjar, 257 F.3d at 1292-93

(when “an applicant is unable to meet the ‘well-founded fear’ standard for asylum,

he is generally precluded from qualifying for either asylum or withholding of

deportation”) (internal quotation marks omitted).

Accordingly, because we affirm the IJ’s decision on all claims, Nreka’s

petition for review is DENIED.

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