United States Court of Appeals
For the First Circuit
No. 06-1173
VJOLLCA DINE; VASIL TRESKA,
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
Before
Torruella, Lynch, and Howard,
Circuit Judges.
Fatos Koleci on brief for petitioners.
Phillip M. Seligman, Trial Attorney, Civil Division, Peter D.
Keisler, Assistant Attorney General, Civil Division, and Terri J.
Scadron, Assistant Director, Office of Immigration Litigation,
Civil Division, on brief for respondent.
September 27, 2006
LYNCH, Circuit Judge. Petitioners Vjollca Dine ("Dine")
and her husband, Vasil Treska ("Treska"), seek review of a decision
of the Board of Immigration Appeals ("BIA") affirming the denial of
their application for asylum, withholding of removal, and
protection under the Convention Against Torture ("CAT"). The
Immigration Judge ("IJ") specifically noted that he found Treska
and his daughter, Krisida Treska ("Krisida"), not to be credible
witnesses. The BIA upheld the IJ's adverse credibility
determinations; it also affirmed the IJ's conclusion that Treska
and Dine failed to establish a nexus between the events in question
and a statutorily protected ground under 8 U.S.C. § 1101(a)(42).
We affirm the BIA and deny the petition for review.
I.
On September 18, 1994, petitioners Dine and Treska
attempted to enter the United States with Albanian passports and
non-immigrant visas. In an interview with an immigration
inspector, Treska stated that he was not making any claim to United
States citizenship and that he was visiting for the purpose of
attending his brother's wedding. Treska and Dine were denied entry
and placed into exclusion proceedings. On November 18, 1994, they
admitted excludability, and on December 30, 1994, they filed an
application for asylum and withholding of removal, claiming past
persecution on the basis of religion, nationality, and political
opinion.
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At the exclusion proceedings on June 30, 1995, Treska
testified to his being Christian Orthodox, ethnic Romanian, and a
member of the Democratic Party in Albania. He reported that his
father's bakery had been taken over by the government in 1967, that
Muslims made up the majority of the government and received
preferential treatment, and that Christians had been kept from
rebuilding the church in his hometown. Dine did not testify at the
exclusion proceedings.
On June 14, 1996, the IJ issued an oral decision denying
the petitioners' application for asylum and withholding of removal.
The IJ concluded that the applicants "ha[d] not met their burden of
establishing that if they were to return to Albania that they
w[ould] be persecuted or have a well-founded fear of persecution"
on account of one of the five statutorily protected grounds.1
Treska and Dine appealed this decision, and the BIA dismissed the
appeal on May 15, 2001.
Shortly thereafter, the petitioners' daughter, Krisida,
arrived in the United States on September 8, 2001, having presented
herself for admission under the Visa Waiver Pilot Program under a
different name. Immigration authorities intercepted and detained
her.
1
The statutorily protected grounds are "race, religion,
nationality, membership in a particular social group, [and]
political opinion." 8 U.S.C. § 1101(a)(42)(A).
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On October 11, 2001, Treska and Dine filed a motion with
the BIA to reopen or reconsider its decision of May 15, 2001, on
grounds that "country conditions in Albania had significantly
changed since the [petitioners] escaped from [there]." Treska and
Dine also submitted a second application, dated October 1, 2001,
seeking asylum and withholding of removal, as well as protection
under the CAT. The government did not oppose the motion to reopen,
and on November 30, 2001, the BIA granted the motion and ordered
further proceedings before the IJ.
On July 6, 2004, Treska and his daughter, Krisida,
testified about events on which the petitioners' persecution claims
were based. Neither witness testified about the changed country
conditions that originally formed the basis for the petitioners'
motion to reopen; instead, each testified about a kidnapping and
threats against Krisida while she was living in Albania. The
petitioners claimed that the kidnapping and threats were the direct
result of their financial donations to the Democratic Party of
Albania.
Treska testified that in May or June 2001, Dine sent
$2,000 to her parents in Albania so that they could give the money
to the Democratic Party. According to Treska, Dine's parents did
so, and Dine's contribution was later mentioned at a public
demonstration. After this announcement, Treska's parents, who
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remained in Albania, started receiving threats and insulting phone
calls.
Treska also testified that on July 15, 2001, Treska's
mother received an anonymous letter requiring her to pay $15,000 by
July 20, 2001; if she did not deliver the money, Krisida would
"disappear."2 Treska explained that his mother reported the letter
to the police, but the police gave "a negative response" because
she was unable to tell them who had sent the letter in the first
place. Treska and Dine decided that Krisida should stay with
Dine's uncle in a nearby town. Treska testified that he and his
wife sent $15,000 to Albania with somebody who was traveling from
the United States to Albania. The money arrived in Albania on July
22, 2001. That same morning, Krisida was abducted by two men
wearing masks while she was playing outside her uncle's home.
According to Treska, the $15,000 eventually reached Treska's
mother, who then personally delivered the ransom in exchange for
Krisida's return on July 23, 2001.
Treska then testified that on August 27, 2001, his mother
received another letter, this time demanding $10,000 or else
Krisida would be killed. The letter indicated that payment was due
by September 5. Instead of paying the ransom, Treska's mother
arranged Krisida's departure to the United States. Treska stated
2
The letter, translated into English, threatened to kidnap
"[y]our niece," apparently referring to Krisida, who was living
with her grandparents at the time.
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that the kidnappers threatened his mother when they found out that
Krisida had left the country, but he also reported that no actual
harm had come to her.
Krisida testified that she was eleven years old at the
time of her kidnapping. She reported that she was playing outside
her uncle's house just before she was kidnapped. Two masked men
jumped out of a car and grabbed her, and then took her by car to
the basement of an old house. When it was dark outside, the men
came back and drove Krisida to her grandmother's house. Krisida
testified that the men "left [her] at the end of the street" and
that she walked to the house by herself. She made clear that upon
her return, her grandmother did not speak with her abductors or
give them anything.
After the hearing, the IJ issued an oral decision denying
Treska's and Dine's application for asylum, withholding of removal,
and relief under the CAT. The IJ found neither Treska nor Krisida
to be credible, citing their demeanor in court and inconsistencies
in Treska's testimony relative to Krisida's testimony and
documentary evidence. Furthermore, the IJ found no nexus between
the alleged kidnapping and one of the five statutorily protected
grounds, commenting that there was no evidence as to the motives of
the kidnappers. With respect to the asylum and withholding claims,
the IJ concluded that Treska and Dine had failed to demonstrate
either past persecution or a well-founded fear of future
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persecution. With respect to the CAT claims, the IJ found that
Treska and Dine had failed to show that torture would be "inflicted
by or at the instigation of or with the consent or acquiescence of
a public official or other person acting in an official capacity."
Treska and Dine appealed to the BIA.
On December 22, 2005, the BIA dismissed the petitioners'
appeal. The BIA affirmed the IJ's adverse credibility
determinations as well as his conclusion that Treska and Dine
failed to establish a nexus between Krisida's kidnapping and a
protected ground. Treska and Dine now petition for review by this
court.
II.
The petitioners challenge the IJ's adverse credibility
determinations as well as his finding that there was no nexus
between Krisida's kidnapping and their political views. They also
argue that they must prevail on their asylum claims because an IJ
in a different proceeding granted Krisida asylum on identical
facts.3 Because we hold that the IJ's adverse credibility
determinations were supported by substantial evidence, we deny the
petition for review.
In immigration cases, our review is deferential with
respect to findings of fact, including the credibility of
witnesses. See Chen v. Gonzales, 418 F.3d 110, 113 (1st Cir.
3
Krisida's asylum claim was granted on March 11, 2005.
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2005); Singh v. Gonzales, 413 F.3d 156, 159 (1st Cir. 2005). We
must affirm factual findings if they are "supported by reasonable,
substantial, and probative evidence on the record considered as a
whole." INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (quoting
8 U.S.C. § 1105a(a)(4)) (internal quotation marks omitted). Put
another way, the factual finding must stand "unless any reasonable
adjudicator would be compelled to conclude to the contrary." 8
U.S.C. § 1252(b)(4)(B).
In this latest round of proceedings, Dine and Treska
sought asylum, withholding of removal, and protection under the CAT
based on the claim that their daughter, while still in Albania, was
threatened and abducted because of their political views. However,
the IJ found Treska's and Krisida's testimony to be incredible, and
he supported this determination with a number of subsidiary
findings. For example, the IJ found it highly suspect that the
petitioners decided at their hearing to focus entirely on Krisida's
kidnapping, even though their motion to reopen proceedings -- which
was filed on October 5, 2001, after the alleged abduction -- made
no mention of the $2,000 payment to the Democratic Party of
Albania, the public announcement of the donation, the threatened
kidnapping, the actual kidnapping, the ransom payment, or the
demand for additional payment. When asked during the proceeding
why these events were not recounted in the motion to reopen, Treska
explained that he and his wife filed the motion through a different
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attorney and that they had in fact explained these events to him.
Treska was unclear, however, about whether the previous attorney
had gone over the contents of the motion to reopen with him and his
wife, first appearing to say "yes" and then later saying "no."
The IJ also found it highly suspect that the events in
question all happened shortly after the BIA's denial of the
petitioners' appeal on May 15, 2001. Indeed, Treska testified that
Dine had sent the $2,000 to her mother in May or June 2001. By
early September 2001, the petitioners' daughter had arrived in the
United States, and in October 2001, they filed their petition to
reopen.
Furthermore, the IJ noted inconsistencies between
Treska's testimony and the documentary evidence before the court.
In particular, the IJ was concerned by Treska's testimony that the
second threat against his daughter occurred on August 27, 2001; a
police record with an authenticated signature indicates that
Treska's mother reported the second threat on July 27, 2001. When
confronted with this discrepancy, Treska suggested that the police
report could have contained a typographical error, an explanation
that the IJ found unconvincing.
The IJ additionally took issue with Treska's evasiveness
when asked how he received one of the ransom notes, as well as with
his non-responsiveness when the government asked exactly how he
transported $15,000 in cash to Albania. The IJ noted that Treska's
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parents continue to live unharmed in Albania, despite the threats
his mother reportedly received after Krisida's departure for the
United States. Furthermore, the IJ highlighted the discrepancies
between Treska's testimony and Krisida's testimony regarding the
circumstances of Krisida's return to Treska's mother's house.
The IJ provided "specific, cogent reason[s] for [his]
disbelief," Gailius v. INS, 147 F.3d 34, 47 (1st Cir. 1998)
(quoting Turcios v. INS, 821 F.2d 1396, 1399 (9th Cir. 1987))
(internal quotation marks omitted), and we cannot say that either
the IJ or the BIA erred in finding the testimony of Treska and
Krisida incredible.
The adverse credibility determinations defeat the
petitioners' asylum claims. We have noted that "[w]hen a
petitioner's case depends on the veracity of . . . testimony, a
fully supported adverse credibility determination, without more,
can sustain a denial of asylum." Olujoke v. Gonzáles, 411 F.3d 16,
22 (1st Cir. 2005). This is such a case. The petitioners' claims
depend on the veracity of the testimony given by Treska and his
daughter, Krisida. In light of the adverse credibility
determinations, we hold that there is substantial evidence to
support the conclusion that Treska and Dine failed to show either
past persecution or a well-founded fear of future persecution.
Our affirmance of the denial of petitioners' asylum
claims effectively disposes of their withholding of removal claims.
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See Makhoul v. Ashcroft, 387 F.3d 75, 82 (1st Cir. 2004) ("A claim
for withholding of deportation demands that the alien carry a more
stringent burden of proof than does an asylum claim. Thus, if an
alien cannot establish asylum eligibility, his claim for
withholding of deportation fails a fortiori.").
Because the petitioners' brief does not advance any
arguments regarding the CAT, we deem that these claims have been
waived. See Mediouni v. INS, 314 F.3d 24, 28 n.5 (1st Cir. 2002).
The petition for review is denied.
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