2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit
12-27-2004 

# H ox hol li v . Att y Ge n U S A
P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t N o . 03-4617

F o l lo w thi s a nd a dd it ion al work s at : h tt p://d i g it alc ommon s .l a w . v i l l a no va . e du/thir dc ir c uit_2004

Thi s de c i sion i s br ou gh t t o you for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit at V i l l a no va U nive r sit y S choo l of L a

w Di g it al Re posit or y

. It h as be e n a c c e pt e d for inclusion in 2004 D e c i sion s b y a n author i z e d a dmini s tr at or of V i l l a no va U nive r sit y S choo l of L a

w Di g it al Re posit or y

. F or mor e infor m at ion, p le as e c on t a ct Be n j a min . C a rl s on@l a

w . v i l l a no va . e du
. Re c omme nde d C it at ion

" H o x ho l l i v . Att y Ge n U SA" (2004). 2004 D e cisio n s . P ape r 34. h tt p://d i g it alc ommon s .l a

w . v i l l a no va . e du/thir dc ir c uit_2004/34NOT PRE CEDENT IAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT
No. 03-4617
AF ER DIT A H OX HO LLI, Petitioner

v. JOHN ASHCROFT, ATTORNEY GENERA L

OF THE U NITED STATES, Respondent
On P etition for Rev iew of a Final O rder of the Bo ard o f Imm igration Ap peals (No. A79-325-565)
Submitte d Under Third Circ uit LAR 34.1(a)

December 13, 2004 Be for e: A M BR O, V AN AN TW ER PE N a nd S TA PL ET ON , Circuit Judges (Opinion fi led: December 27, 2004)

OPI NION
AM BR O, Circuit

Judge 

### Aferdita H oxholli ap peals the aff irmance by the Board of

Immigration Appeals (“BIA”)of the deci sion by an Imm igrati on Judge (“IJ”) deny ing her applicati on for1 On M arch 1, 2003, the INS ceased to exist as an agency

within t he Department of Ju sti ce an d t he IN S's fu nc tio ns w er e tr an sf er re d t o t he D ep ar tm en t o f H om ela nd Se cu rity. See Ho mela nd S ecurity A ct of 2 002 , Pub . L. N o. 107 -296 §§ 4 41, 45 1 & 471 , 116 S tat. 2135.

2 Hoxholli al so appli ed for rel ief under the Conventi on Against Tort ure (Unit ed Nations Conventi on Against Tort ure and Other Crue l, I nhuman or Degrading Treat ment or Punishment , Dec. 10, 1984, 1465 U.N.T.S. 85, impl emented in t he United States by

the Foreign Affair s Reform and Restruc turi ng Act of 1998, Pub. L. No. 105-277, § 2242, 112 St at . 2 681 -7 61 ( cod if

ie d at 8 U. S. C. § 123 1) ), but

late r dro ppe d that

cl ai m. 2 

### asy lum and wi

thholding of re

moval. Hoxholli is

a citizen of Albani a who enter ed the United Sta

tes wit h a visit or visa on Se

ptembe r 24, 2000. She ove

rstay ed her vis a and, on October 30, 2001, the Immigrati on and Naturalization Service (“INS”) 1 

### charged h er with removal under Immigration and Natio nality Act (“INA”) § 23 7(a)(1)(B), 8 U.S.C. § 1227(a)(1) (B). Hoxholli concede d remova bility and sought re lief in t

he form of asy

lum and withh olding o f removal. 2 

### The IJ denied both claims in an o ral decision. Ho xholli appeale d to the BIA,which affir med wit hout opinion the

IJ’s de cision. We have ju risdiction to rev iew Hoxh olli’s petition f or review u nder INA § 242, 8 U.S.C. § 1252. Where, as here, the BIA summ arily affirms the IJ’ s decision, we review that decision. Dia v. Ashcro ft , 353 F.3d 228, 245 (3d Ci r. 2003) (e

n banc). For

the reasons given , we deny Hoxho lli’s petition. Factual History Hoxholli te stifie d before the IJ as follows. In 1992 she becam e a support

er of the Democratic Party (“DP”) in Alb ania and be gan attendin g meetings with h er brothers.3



### The DP, u nder the lead ership of S ali Berisha, was in p ower in Alb ania from 199 2 to 1997. Hoxholli be came

a forma l dues pay

ing mem ber of the DP i

n May 1998, after

the Sociali sts took ba

ck power from

the DP. In the beginning of 2000, Ho xholli and one of her brothers (two brothers, Artori and Florenci, were involved with her DP activities ) received two anony mous letters threat ening harm

if they continued t

o support the

DP. In Februa

ry 2000 anony

mous callers thre e times t

hreatened to destroy

their family

unless Hoxholli and her brothers ceased their DP acti

vities. In June 2000 she was arrest ed at a DP protest. She was detained for seven hours and interrogated by a police inspector. When Hoxholli replie d to a quest ion that she wanted democra cy in Albania , the ins

pector gr abbed her by

the hair, hit her in th e face, and d emanded to kn ow “Why should a w oman be invo lved in politics? Why

are y ou doing this?” Before the officers released her, they threatened that she would be phy

sically harme d if she cont

inued to suppor

t the DP. Following this interrogation, the store where she worked as a seamst ress was bombed. She

reporte d the bombi

ng to the poli ce, who told her that they would not help, and that she should go to DP l eader Be risha i f she neede d help. After the po lice refused to help her, Ho xholli left to hide with h er mother’s family in the ci ty of Dures, Al

bania. She

returne d to Tirana

only to arra nge her tr ip out of Albania–she obtaine d a visit or visa a t the U.S. Consulate

and left for

the Unite d States

on September 24, 2 000.4 

### Discuss ion Section 208(b) of the INA, 8 U.S.C. § 1158(b), confers on t he Attorney

General the discreti on to grant asylum to an alien who is a “refugee.” An individual qualifies as a refugee i f he or she i s “unable or unwilling” to ret

urn to hi s or her c ountry “because of pe rse cu tio n o r a w ell -f

ou nd ed fe ar of

pe rse cu tio n o n a cc ou nt of ra ce , re lig io n, n ati on ali ty,
me mb ersh ip in a pa rticu lar so cial g rou p, or pol itical o pin ion .” IN A § 101 (a)(4 2)(A ), 8 U.S .C. § 110 1(a )(42 )(A ). An applic ant be ars the burd en of prov ing elig ibility for asylum base d on spec ific facts a nd cr edible testimo ny. 8 C.F .R. § 2 08.13 (a); Abd ille v. Ash croft , 242 F.3d 477, 482 (3d Cir. 2001). I n order t o demonstrat e a well- founded fear of per secuti on, an appl icant must sat isfy

three r equirement s: (1) he or she has a fear of per secuti on in his or her native country; (2) there is a reasona ble possibility that he or she w ill be persecuted u pon return to that c oun try; and (3) th e app licant is u nw illing to re turn to th at cou ntry as a res ult of h is or her fear. 8 C .F.R. § 208 .13(b)(2)(i). 

### An alien wh o establishes past p ersecution is presumed to have a well-founded fear of future persecution. 8 C.F.R. § 208.13(b)(1). The eligibility threshold for withh olding o f removal is high er than for asylum. The At torne y Gener al m ust deter mine tha t re patr iation would jeopa

rdiz e the ali en’slife or freedom

on account of one

of the prote cted grounds . INA § 241(b)( 3), 8 U.S.C. § 1231(b)(3). The applic ant must there fore demonstrat e a cle ar probabi lity

of persecution. Senathiraj

ah v. INS , 157 F.3d 210, 215 (3d Cir. 1998). Given this higher5



### standar d, an appli cant who does

not qualify

for asy lum al so will not

qualify for withhold ing of remov al. We will uphold fac tual f indings in an immigr ation mat ter i f they

are “‘s upported by r easonable , subst antia l, and probati ve evidence on t he record c onsider ed as a whole. ’” INS v. Eli as-Zacari as , 50 2 U
. S. 47 8, 48 1 ( 19 92 ) ( qu ot i ng 8 U
. S. C. § 1 10 5a ( a) ( 4) )
. We

re ve rse a d ete rm in ati on of th e B IA /IJ if “ th e e vi de nc e n ot on ly su pp or ts [ a c on tra ry] conclusi on, but c ompels it .” Id. at 481 n.1 (em phas is om itted). A dver se cred ibility dete rmin ation s are rev iew ed a s w ell fo r sub stan tial ev iden ce, Balasu bra manr im v . I NS , 143 F.3d 157, 161 ( 3d Cir. 1998) , and we willuphold thos e findi ngs unless “any

re as onabl e ad

ju di catorwoul d be comp el le d t o co nclude to th e co ntrary .” 8 U. S. C. § 1252 (b)(4)(B). The IJ did not

find Hoxholli ’s te sti mony credible. Among the examples point ed out w ere the follow ing:

• The IJ st ated that Hoxholli“clai ms that t he only time she c ame back from Dures after she left was when she came to the airport [in Tir ana].” The IJ then pointed out that “yet , we have a vis a that was issued at

the American Consul ate [i n Tirana] on S eptem ber 8 th , 2000.” The IJ then c oncluded: “[I]f t he only time she e ver appeared i n Tirana was t o leave at the ai rport

on September 24t

h, how could she be at the A meric an C onsu late [o n Se ptem ber 8 th ] getting the vi sa[?] I t hink the answ er is she neve r left T irana a nd n ever w ent to D ures.” W hile the IJ erred in stat ing that

Hoxholli cl aimed that

the only time she c ame back to Tir ana from Dures was to leav e from the airport on S eptemb er 24th, there is supp ort for the IJ’s conc lusion that H oxh olli’s claim that she fled to Du res w as un true. Firs t, Hoxholli’ s testimony t

hat she fl ed to Dures cont radict ed her previ ous testimony that s he had li ved in Tir ana conti nuously from 1994 untilshe left for the Unit ed States. Second, Hoxholli’s I- 589 asylum applicati on does not mention D ures.3 

### Hoxholli ar gues that the IJ should have addr

essed t he 2001 State

Departm ent Country Report for Albania in his decis ion. The Country Report state s that police hara ssed some D P memb ers an d all eged ly kille d on e DP member . It al so st ates t hat s ome DP mem bers wer e term inated fr om thei r officia l positi ons for polit

ical r easons. But because we affirm the IJ ’s finding that Hoxholli’s story is not credible, the Country Report would onl

y be releva nt if it de scribe d a systematic gove rnment-based pa

ttern or practice of persecution, or pers ecutions condoned by the government, s o severe that an Albanian woul d have a well-founded fea r of future pe

rsecut ion sim ply by be ing a member of the DP. It d oes not.
6 • The IJ dis belie ved Hoxholli’ s asser tion t hat she di d not have t o answer any questi ons at t

he United States bor der about he r reas ons for or t he inte nded durati on of h er v isit.

• The IJ dis belie ved Hoxholli’ s asser tion t hat she was active in t

he DP in 1992 but did not ac tually j oin the party until1998. The IJ’ s reasoning that a DP activis t and cam paig n w ork er w oul d be an o ffic ial D P m em ber is no t un reas ona ble.

• Hoxholli t esti fied that she pai d monthly membership dues t o the DP in 2000 from January until she left. W hen co nfronted with the fa ct that her DP mem bership card was paid thr ough December 2000, when she had been i n the Unite d States since September 2000, she arguably change d her tes timony when she clai med that her brother paid h er dues throu gh D ecemb er.

• 

### Hoxholli’s

brother Ar

tori did not

testi fy. Hoxholli ini

tiall y c laimed that he

did not testify because he was no t present in Alb ania when th e alleged even ts happened
. However, Hoxholli changed her testimony and claimed that he wasill when the IJ aske d her w

hy her br other could not te sti fy

as to his k

nowle dge of he

r DP mem bership.

• The IJ obser

ved that Hoxholli was “s hifty ,” “not responsi ve,” and t

hat she repeatedly chang ed her testimo ny. We defer to the IJ’s finding th at Hox holli’s dem ean or in dica ted th at he r testim ony w as n ot cr edib le. 

### The IJ also based in part the denial of Hoxholli’s asylum

application on her failure to corrobor

ate her testi mony . Hoxholli offe

red repor ts from the Stat e Depart ment 3 

### and7



### human rights groups describing the general si tuation in Albania. She offered certificate s attesting that she i s a mem ber of activist groups involving formerly persecuted individual s. But othe

r than her DP identifi cation c ard, Hoxholli offered no document ation from

the DP to cor

roborate her cla ims. She did not subm

it any of the threat ening let ters she alle gedly

recei ved. She al so offered no phot ographs, r

eports,or documents to veri fy t

hat the store wher

e she worke d was bombe d. Furtherm ore, Hoxholli had me

mbers of her im media te fam ily who could have given corr

oborating t

estim ony,yet she fai led to ca

ll them as witne sses. As noted, Hoxholli has

two brothers who were a lso DP me

mbers . Artori , who lived i n Patterson, New Jersey, close to the hearin g site, did no t testify. As already noted, Hoxh olli initially claimed that

he did not testify

because he was not present in Albania when the alle ged events ha ppened. Howeve

r, she changed her testim ony a nd claim ed that Ar

tori was not feeling well when the IJ asked her why he could not testify

as to his knowledge of her DP membership. Flo renci, who w as in the Dominican Republic w hen Hox holli’s case was hear d, had all egedly

been arr ested onc e in Albani a. Hoxholli offered no affi davits or letters from

Florenci into evidence. Hoxholli te stifie d that her parents knew of the inc idents a

bout which she

testi fied, and her par

ents wer e in the s ame bui lding as Hoxholli’s asy lum hea ring on the da

y of t he he ar in g, yet th ey d id no t t es ti fy. Wh en as ke d w hy s he di d n ot of fe r t he ir te st im on y, Hoxholli sa

id that i t was bec ause the

y we re not pre sent when she was ar reste d.8 

### * * * * * As there is nothing i

n the rec ord that c ompels us to concl

ude that t he IJ’s decisi on to deny asy lum and wi

thholding of re

moval was incorr

ect, we deny the peti tion for revi ew.