2004 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-16-2004

Lumaj v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 02-2854

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 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 02-2854

NIKE LUMAJ,

 Petitioner

v.

JOHN ASHCROFT,

ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA

On Petition for Review of a Decision of the

Board of Immigration Appeals

(BIA No. A75-452-022)

Submitted Pursuant to Third Circuit LAR 34.1(a)

October 26, 2004

Before: SCIRICA, Chief Judge, FISHER and BECKER, Circuit Judges

(Filed: December 16, 2004)

OPINION OF THE COURT

SCIRICA, Chief Judge.

Petitioner Nike Lumaj seeks review of the Board of Immigration Appeals’

decision affirming without opinion the decision of the Immigration Judge to deny his
2

application for political asylum and withholding of removal. We have jurisdiction to

review the Board’s order under 8 U.S.C. § 1252. We will affirm.

I. Background

Nike Lumaj is a native and citizen of Albania who grew up in northern Albania

near the Yugoslavian border. For most of his life, Lumaj lived with his parents and four

siblings, all of whom are Catholic. Lumaj maintains that his family’s problems originated

in 1945, twenty-two years before he was born, as a result of his grandfather’s opposition

to the post-World War II communist occupation of Albania. As a result of his political

activity, communist authorities arrested Lumaj’s grandfather several times and

expropriated most of his real property.

In 1980, Lumaj, with his parents and siblings, attempted to flee Albania on foot,

but the family was apprehended at the Yugoslavian border. His father was sentenced to

twelve years in prison for trying to escape the country. Authorities likewise sentenced

Lumaj, his mother, and siblings to an internment camp where they worked from 1980-

1985 in an agricultural cooperative. Upon their release, Lumaj, his mother and siblings

returned to the family home, which in the interim had been vandalized by members of the

communist regime. For the next two years, Lumaj worked (voluntarily) in an agricultural

cooperative until the Army drafted him to fulfill his compulsory service obligation. 

After two years, Lumaj satisfied his military obligation, received a discharge, and

began working construction jobs. In 1993, when the communist regime fell, Lumaj and
 

1Beginning on March 1, 2003, INS became a part of the Department of Homeland

Security pursuant to Homeland Security Act of 2002, Pub. L. No. 107-296, 110 Stat. 2135

(Nov. 25, 2002).

3

his family joined the Association of Formerly Politically Persecuted Persons in an attempt

to regain possession of the real property taken from Lumaj’s grandfather and to organize

renovations of St. Nicholas Church, a Catholic church located in their village. Despite

the fall of communism, many villagers who remained sympathetic to the former regime

threatened those who attempted to repair St. Nicholas. 

In January 1997, Lumaj stopped working and began making preparations to leave

Albania. In April 1997, he acquired an Albanian passport. A short time later, he

collected $7,000, apparently from friends, in order to purchase a counterfeit passport and

an airplane ticket to the United States. Lumaj attempted to enter the United States with

his counterfeit passport, but was detained at the airport by immigration officials. During

an airport interview in which he was assisted by a translator, Lumaj claimed he sought

entry to escape the on-going war in Albania, that he had no political affiliations, and that

he feared returning to Albania because he had borrowed money he could not pay back. 

In May 1997, the Immigration and Naturalization Service (INS)1served Lumaj

with a notice to appear for removal proceedings. INS alleged that Lumaj, who is not a

United States citizen or national, entered the United States without proper documentation

and gained entry by “fraud or willfully misrepresenting a material fact” in violation of 8

U.S.C. § 1182 (a)(6)(C)(i), and further intended to gain admission as an immigrant
4

without proper documentation in violation of 8 U.S.C. § (a)(7)(A)(i)(I). Lumaj petitioned

for asylum and withholding of removal. After a hearing, the Immigration Judge (IJ)

denied the application on both counts. Lumaj filed a timely appeal, and the Board of 

Immigration Appeals (BIA) affirmed without opinion

. II.

Although we generally review orders of the BIA, we also review immigration

judge orders where the BIA affirms without opinion. See Dia v. Ashcroft, 353 F.3d 228,

245 (3d Cir. 2003) (en banc). We review factual findings, including credibility

determinations, under a substantial evidence standard. See 8 U.S.C. § 1252 (b)(4)(B)

(codifying INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992)); Tarrawally v. Ashcroft,

338 F.3d 180, 184 (3d Cir. 2003). Findings of past and future persecution are likewise

subject to substantial evidence review. Gao v. Ashcroft, 299 F. 3d 266, 272 (3d Cir.

2002).

Under the substantial evidence standard, findings are upheld if a reasonable fact

finder could reach a similar conclusion based on the record. We will reverse only if the

IJ’s findings are unsupported by the record or are based on mere conjecture. Id. The IJ

is entitled to rely on record evidence of conditions in the applicant’s home country, which

may be illustrated by State Department reports and reports from non-governmental

organizations. Id. at 278-79; Dia, 353 F.3d. at 249; Chang v. INS, 119 F.3d 1055, 1064

(3d Cir. 1997) (discussing non-governmental reports).
5

III. 

Here, the Immigration Judge credited Lumaj’s testimony regarding his family’s

experiences from World War II until 1990. But the IJ did not credit Lumaj’s account of

the events surrounding his departure from Albania and entry into the United States. 

Particularly, the IJ discredited Lumaj’s explanation of why he sought asylum in the

United States, and of how he raised $7,000 for false travel documents and airfare. The IJ

cited discrepancies between Lumaj’s airport statement and his asylum application, and

considered evidence from the State Department and other sources detailing the conditions

in Albania. Considering the evidence as a whole, the Immigration Judge concluded

Lumaj’s account of his departure from Albania and entry into the United States lacked

credibility.

The adverse credibility finding is supported by material inconsistencies in the

record. The IJ found discrepancies between Lumaj’s initial answers given at the airport

to an immigration officer and later responses on his asylum application. Although airport

interviews are not necessarily “valid grounds upon which to base a finding that an

applicant is not credible,” see Dia, 353 F.3d at 257 (citation omitted), here the finding of

adverse credibility rests on Lumaj’s own testimony, offered with the assistance of an

interpreter, regarding the circumstances surrounding his departure from Albania. In sum,

the record supports a finding of adverse credibility.
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IV.

The Immigration Judge also concluded Lumaj fails to qualify as a refugee for

asylum purposes. See 8 U.S.C. § 1158(b)(1). A refugee is an alien who cannot return to

his or her country of origin “because of persecution or a well-founded fear of persecution

based on race, religion, nationality, membership in a particular social group, or political

opinion.” 8 U.S.C. § 1101 (a)(42)(a). To establish refugee status, an applicant must

demonstrate a genuine and reasonable fear of persecution in the native country. Gao, 299

F.3d at 272. The test is both subjective and objective. Lukwago v. Ashcroft, 329 F.3d

157, 176-77 (3d Cir. 2003). Whether an applicant demonstrates past persecution or a

well-founded fear of future persecution is a factual determination. Id.

We have established that persecution is an “extreme concept that does not include

every sort of treatment our society regards as offensive.” Fatin v. INS, 12 F.3d 1233,

1243 (3d Cir. 1993). Persecution includes “threats to life, confinement, torture, and

economic restrictions so severe that they constitute a real threat to life or freedom.” Lin v.

INS, 238 F.3d 239, 244 (3d Cir. 2001) (citations omitted).

Here, the Immigration Judge found Lumaj did not reasonably fear persecution

upon returning to Albania. Relying on reports from the State Department and nongovernmental organizations, the IJ emphasized the changed country conditions after the

fall of the communist regime and found little evidence of current religious or political

persecution in Albania. Buttressing this conclusion, a Department of State opinion letter
7

states that any adversity Lumaj may face upon returning to Albania is more a result of

general instability and poverty rather than targeted religious or political persecution. The

IJ also noted that northern Albania, Lumaj’s home region, is predominantly Catholic,

rendering religious persecution less likely. 

The IJ further found that neither Lumaj’s military work assignments nor his

brother’s injuries establish a well-founded fear of future persecution. While violence

against a family member may “support for a claim of persecution and in some instances is

sufficient to establish [a well-founded fear of] persecution,” Baballah v. Ashcroft, 335

F.3d 981, 988 (9th Cir. 2003), the IJ reasoned that the facts here, where Lumaj admits he

does not know exactly what happened to his brother, do not meet this threshold. 

Likewise, the IJ found that any past persecution suffered by Lumaj or his family, while

reprehensible, did not in light of the fundamental change in country conditions give rise

to a well-founded fear of future persecution. See Lukwago, 329 F.3d at 173-74 (citing 8

C.F.R. § 208.13(b)(1) for proposition that a showing of past persecution is rebuttable by a

showing of changed country conditions). Finally, the IJ found that the more recent

incident involving Lumaj’s family home did not constitute persecution. Accordingly, the

IJ determined that Lumaj did not establish a well-founded fear of future persecution. 

The Immigration Judge’s order based on adverse credibility and persecution

findings is supported by the record. The IJ did not err in determining that changed
8

country conditions undermine Lumaj’s claim of fear of future persecution. Lukwago, 329

F.3d at 174.

V.

Lumaj also challenges the BIA’s decision to affirm the immigration judge without

opinion. We resolved this issue in Dia, where we held that “nothing in the INA

specifically requires the BIA to explain its decisions.” 353 F.3d at 236 (quoting Abdulai

v. Ashcroft, 239 F.3d 542, 555 (3d Cir. 2001)). Additionally, we stated that “[n]either the

Constitution nor Congress guarantees a de novo review by the BIA, nor do they guarantee

a right to a fully reasoned opinion by the BIA.” Id. at 243 (citation omitted). 

VI. Conclusion

For the foregoing reasons, we will affirm the order of the BIA.