Dhima v. Ashcroft

United States Court of Appeals
For the First Circuit
No. 04-2545

PETRO DHIMA,

Petitioner,

v.

ALBERTO GONZALES,
Attorney General of the United States,

Respondent.

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

Before
Boudin, Chief Judge,
Lynch and Howard, Circuit Judges.

Saher J. Macarius and Law Offices of Saher J. Macarius on
brief for petitioner.
Joan Hogan, Attorney, Department of Justice, Peter D. Keisler,
Assistant Attorney General, Civil Division, and Papu Sandhu, Senior
Litigation Counsel, Office of Immigration Litigation, on brief for
respondent.

July 28, 2005
 LYNCH, Circuit Judge. The petitioner, Petro Dhima, a

native and citizen of Albania, seeks review of the denial of his

application for asylum. The Immigration Judge (IJ) found that

Dhima was not credible, and that he failed to establish past

persecution or a well-founded fear of future persecution, so that

he was ineligible for asylum. The Board of Immigration Appeals

(BIA) summarily affirmed the IJ's decision. We affirm the BIA and

deny the petition for review.1

I.

Dhima entered the United States on November 16, 2001

without proper entry documents. Immigration officials took him

into custody. In his interview with an officer of the (then)

Immigration and Naturalization Service (INS),2 he claimed to be a

member of no political organization but that he sympathized with

the Democratic Party (the opposition party to the Socialist

government) in Albania. He also said that he was involved at a May

27, 2001 demonstration during which "a group of police started to

kick us." The police were "trying to bring us to the police

station but we escaped."

1
Alberto Gonzales was sworn in as Attorney General of the United
States on February 3, 2005. We have substituted him for John
Ashcroft, previous holder of that office, as the respondent. See
Fed. R. App. P. 43(c)(2).
2
The functions of the INS were subsequently subsumed in the
Department of Homeland Security.

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 On November 26, 2001, the INS served Dhima with a Notice

to Appear, charging him with being removable pursuant to 8 U.S.C.

§ 1182(a)(7)(A)(i)(I). Dhima admitted removability and applied for

asylum, withholding of removal, protection under the Convention

Against Torture (CAT), and voluntary departure, on the basis of

alleged persecution for his political opinions and activities.

In his asylum application, contrary to what he told the

interviewing INS officer, Dhima claimed to be a longstanding member

of the Democratic Party, and gave a different account of his

involvement in the demonstration of May 27, 2001. This time, he

stated that he suffered "severe injuries" to his head and went into

a "coma" when the police attempted to arrest him. The crowd, he

stated, prevented the arrest, and he woke from his coma in a

hospital.

In his sworn affidavit accompanying the application,

Dhima gave roughly the same account of the events of May 27, 2001,

but added a new and also contrary fact: "I, along with many of my

friends, were arrested following that event."

At his merits hearing before an IJ on July 8, 2003, Dhima

testified that he became a member of the Albanian Democratic Party

in December 1990. Dhima gave yet another inconsistent account of

the events of May 27, 2001. This time, he stated that he was

beaten by "people of the security" who "didn't look like the

police." He was not arrested or dragged to a car. But he received

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a head wound, became unconscious, and woke up in a hospital. In

this version, Dhima also explained that he left the hospital after

one hour.

Dhima testified that about five months later, on

September 24, 2001, he received a notice slipped under his door for

him to report to the police station on that same day. Dhima

explained that he was afraid for his life and two of his friends

who participated in the May demonstration had been arrested and

tortured. He did not go to the police station, but instead escaped

to his father's village. He said that the police came to his

parents' house and asked them where he was, but his father told the

police nothing. Dhima then left Albania for Greece with a false

passport, and ultimately came to the United States by way of France

and Mexico.

Dhima also testified that during his participation in

another demonstration in 1997, "[t]he people of the security"

"assaulted me and especially in me legs, both of them." He

explained that as a result of being beaten with a stick, he

received wounds in his nose, elbow, arms, and legs. This 1997

demonstration and the associated beating were not mentioned in the

interview, the asylum application, or the supporting documentation

he submitted to the IJ.

Dhima testified that after the May 2001 demonstration, at

which he was purportedly injured, he went to the U.S. Embassy in

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Greece in July 2001. He told the Embassy officers only that he

wanted to obtain a visa for the United States for a vacation. He

did not discuss asylum. Having failed to obtain a visa, he

voluntarily returned to Albania.

Another witness, Frank Camaj, president of the Albanian-

American International Institute, a "bicultural education

institution . . . that facilitates . . . the causes of . . .

Albanian-Americans," testified on behalf of Dhima. Camaj testified

that Dhima's family has one of the "thickest files" in Albania and

has been "marked for persecution" by the authorities. Camaj also

explained that the current Albanian government is run by the "same

people" as the previous Communist regime and that the current

government "commit[s] far worse atrocities" than before.

Dhima also submitted a certificate allegedly from the

Chairman of the Democratic Party of Albania, which described Dhima

as a "supporter" of the party and stated that Dhima was "maltreated

physically" on May 27, 2001, and also on another occasion in June

of that year. Dhima himself never mentioned a June incident. As

well, Dhima submitted the notice that he supposedly received

ordering him to report to the police on September 24, 2001, and a

document from an Albanian hospital stating that he was treated on

May 27, 2001 for "contusion of the head and body" and "fracture of

rib."

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 The IJ denied Dhima's application in an oral decision on

July 8, 2003. The IJ determined that Dhima had failed to show a

well-founded fear of persecution, and also failed to show that it

is more likely than not that he would be persecuted or tortured if

returned to Albania. The IJ found Dhima not credible, pointing to

Dhima's failure to "provide a cogent and consistent account of the

events surrounding" the May 27, 2001 demonstration, which went "to

the very heart of [Dhima's] claim." The IJ also explained other

factors which contributed to his finding that Dhima was not

credible: 1) Dhima was inconsistent in what he said concerning his

membership in the Democratic Party; 2) Dhima did not report the

1997 demonstration at which he was supposedly badly beaten in any

of his written submissions; 3) the circumstances surrounding the

police summons and the inability of the police to locate him in his

father's village were inexplicable given Camaj's assertion that

Dhima's family is a prominent dissident family closely tracked by

the government; 4) Dhima had tried to come to the United States by

applying for a visitor's visa without mentioning any persecution,

indicating that he had formed an intent to come to the United

States even before the notice to report to the police, which he

claimed was the triggering event; and 5) Camaj's and Dhima's

testimony of the repressiveness of the Albanian government is at

odds with the U.S. State Department Profile of Asylum Claims and

Country Conditions, released in May 2001, which described the 1997

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elections as "adequately reflect[ing] the will of the people" and

stated that "[b]oth major political parties trace their roots to

the communist regime and repudiate it throughly."

The IJ also found the documentation submitted by Dhima to

be insufficient to salvage his credibility. The IJ questioned the

certificate that purportedly came from the chairman of the

Democratic Party because the certificate consisted of

"unsubstantiated rhetoric, unsupported by any evidence of how the

maker came into possession of the facts set forth." As for the

hospital document, the IJ noted that the U.S. State Department

Profile explained that "documents issued by Albanian medical

practitioners are rarely reliable." The IJ also found Camaj's

testimony to be more "passionate" than reliable.

Dhima appealed to the BIA, which summarily affirmed the

IJ pursuant to 8 C.F.R. § 1003.1(e)(4), making the IJ's decision

the final agency decision for purposes of appellate review. See

Albathani v. INS, 318 F.3d 365, 373 (1st Cir. 2003). Dhima then

petitioned this court for review solely as to the IJ's denial of

Dhima's asylum claim.3 Dhima argues that the IJ's adverse

credibility determination is not supported by substantial evidence.

3
Dhima's petition comes to us after the passage of the REAL ID
Act of 2005, Pub. L. 109-13, 119 Stat. 302, which alters, among
other things, the standards governing credibility determinations
and the need for corroboration of testimony in asylum cases. The
new provisions of the Act are not applicable to this case since
Dhima's application for asylum was filed prior to the effective
date of the amendments.

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He also argues that the BIA erred by summarily affirming the IJ's

decision.

II.

Denial of Asylum

We review factual findings and credibility determinations

of the IJ under the deferential substantial evidence standard. INS

v. Elias-Zacarias, 502 U.S. 478, 481 (1992); Akinwande v. Ashcroft,

380 F.3d 517, 522 (1st Cir. 2004). The IJ's determination must

stand "unless any reasonable adjudicator would be compelled to

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

Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120, 123 (1st Cir. 2005).

As to issues of credibility, we will give great deference to an

IJ's determinations so long as the IJ provides "specific reasons

for those determinations." Akinwande, 380 F.3d at 522; see Syed v.

Ashcroft, 389 F.3d 248, 251-52 (1st Cir. 2004).

The petitioner for asylum has the burden of proof for

establishing eligibility for asylum. Diab v. Ashcroft, 397 F.3d

35, 39 (1st Cir. 2005); 8 C.F.R. § 1208.13(a). Applicants can meet

this burden by proving either past persecution or a well-founded

fear of future persecution on account of "race, religion,

nationality, membership in a particular social group, or political

opinion." 8 U.S.C § 1101(a)(42)(A); 8 C.F.R. § 1208.13(b). An

applicant's testimony, "if credible, may be sufficient to sustain

the burden of proof without corroboration," 8 C.F.R. § 1208.13(a),

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but if the applicant is found not to be entirely credible,

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

credibility." Diab, 397 F.3d at 39. Dhima's argument that he is

eligible for asylum requires, as a threshold matter, that the IJ's

credibility finding be unsupported by the record.

The IJ's determination that Dhima was not credible is

unassailable. The IJ identified numerous inconsistencies and

omissions in Dhima's testimony and application for asylum, and

offered specific reasons for his adverse credibility determination,

each of which is amply supported by the record.

Dhima offers no arguments to address most of these

reasons; he addresses only the IJ's determination that there were

crucial discrepancies concerning his multiple accounts of the May

27, 2001 incident.4 Dhima argues to us that the multiple versions

are not necessarily inconsistent if one resolves all apparent

contradictions and ambiguities in the various accounts in favor of

Dhima. But there is no requirement that the IJ favor the

petitioner in this way. Dhima provides no coherent explanation for

why, in his accounts of the May 27, 2001 incident, he sometimes

claimed to have been arrested and sometimes to have escaped arrest,

or why the details of his maltreatment kept on changing. The

4
Even if Dhima were right that the IJ erred in his finding on
this one factor, the combination of the other factors cited by the
IJ would still lead us to conclude that the IJ's adverse
credibility finding is supported by substantial evidence. But
Dhima does not even get that far.

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record does not suggest, much less compel, a conclusion that the

multiple accounts were cogent and coherent.

Dhima next argues that the IJ improperly disregarded the

additional corroborating documentary evidence and testimony from

Camaj. In actuality, the IJ evaluated the documents and determined

that they were insufficient to compensate for Dhima's lack of

credibility; indeed, they were suspect in themselves. The IJ's

conclusions are amply supported. Dhima offers no explanation for

how the Chairman of the Democratic Party of Albania, who

purportedly authored the certificate he submitted, would have

knowledge of the specific facts concerning Dhima (indeed, the

certificate talks of Dhima being maltreated in June of 2001, which

Dhima does not say happened). As for the hospital record, it was

dated August 17, 2002 (obtained after the start of his asylum

proceedings), and thus was not made contemporaneous with his visit.

The hospital document also described Dhima as having suffered a

broken rib, which Dhima does not mention in his testimony. The IJ

noted the State Department's conclusion that "[d]ocuments issued by

Albanian medical practitioners are rarely reliable."

As for Camaj's testimony, Camaj did not have personal

knowledge of the events described by Dhima, and his assessment of

Albania's country conditions and the prominence of Dhima's family

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as dissidents were at odds with the State Department Profile and

Dhima's own account of his success at eluding capture.5

BIA's Summary Affirmance

Dhima's argument attacking the BIA's summary affirmance

because it does not state the BIA's own reasons is foreclosed by

our decision in Albathani v. INS, 318 F.3d 365, 377-78 (1st Cir.

2003). There, we rejected a similar challenge to the BIA's summary

affirmance procedure: although the summary affirmance does not give

the BIA's reasons, "[t]he courts will continue to have the IJ's

decision and the record upon which it is based available for

review." Id. at 378.

Dhima's argument that his case falls outside the bounds

of 8 C.F.R. § 1003.1(e)(4) is also without merit. Dhima appears to

argue, in cursory fashion, that existing precedent does not

"squarely" control his case, which involves a "novel" fact

situation. See 8 C.F.R. § 1003.1(e)(4)(i)(A). However, Dhima does

not explain (and we think he cannot) what makes the IJ's routine

credibility finding in this case "novel" or in what way the IJ's

decision extended existing precedent.

5
Finally, Dhima selectively quotes from the U.S. State Department
Country Conditions Report for Albania to suggest that the Report
closely corroborates Dhima's claims. It does not. For example,
Dhima quotes the Report as saying, "[T]he Democratic Party alleged
that the Government was responsible for the killing of one of its
members in police custody. . . ." The elided portion of the
original quote was "although a government medical team confirmed
that the death was a suicide."

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 III.

The BIA's order is affirmed and the petition for review

denied.

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