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
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w . v i l l a no va . e du/thir dc ir c uit_2004/458NOT PRE CEDENT IAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT
Nos. 03-2034 and 04-2474
LORENC P APARI ZO, Petitioner

v. JOHN AS HCROFT , A TTORNE Y GENERAL OF THE UNIT ED STA TES OF AMERI CA, Respondent
On Petiti ons for Review of Orders of the Immigration and Natura lization Service Bo ard o f Imm igration Ap peals (BIA No. A-77-626-713)
Submitte d Under Third Circ uit LAR 34.1(a)

July12, 2004 Bef ore: RE ND EL L, F ISH ER and VA N A NT W ER PE N, Circu it Judges
. (Fil ed: Jul y 28, 2004)
OPINI ON OF THE COURT
RE ND EL L, Circuit

Judge
. Lorenc Papari zo, a ci tize n of Albania, petit ions for review of a deci sion bythe Board of Immigration Appeals ( “BIA”) denyi ng his appl ication for as yl um, withhol ding

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of rem oval, and p rotection und er the Co nvention A gainst Torture (“CA T”). The BIA summarily

affirmed t

he determinati on of the Immigr ation J udge (“IJ ”) that Paparizo ha d not suffered persecut

ion in Albani a on account of hi s Greek ethni city , and that he di d not hav e a w ell-f oun ded fea r of futu re p erse cutio n. W e ha ve ju risdi ction und er 8 U.S .C. § 125 2. We wi llde ny Pap ar iz o’ s p etit io ns fo r r ev ie w. I. Paparizo is a tw enty-five year-old citizen of A lbania, and h e is an ethnic G reek. In Oc tober o f 19 98, his fam ily immig rated to the U nited S tates. Pa parizo wa s not a ble to
acco mp any them beca use h e w as too old to o btain d erivativ e imm igrant s tatus thro ugh his parents . Papari zo clai ms that he be gan to experience per secuti on in Albania on account of h is G reek ethn icity af ter h is fa mily’s dep artu re. In January of 1999, the Albani an polic e stopped Paparizo’s taxi whil e he was carry ing a pass enger. Accor ding to Paparizo, the poli ce beat bot h Paparizo a nd the passenger

and accused Paparizo of bei ng a “fil thy Greek.” Then, in March of 1999, Paparizo received an anonymous letter t hreatening his li fe and referring to his father as a “Greek spy .” Papari zo did not pr oduce thi s letter at his hearing. On June 2, 1999, Paparizo was agai n stopped bythe poli ce while car ry ing passenger s in hi s taxi . Papari zo testifie d that t he polic e stol e some ite ms from him and his passeng ers and then arrested him. H e further testified that at the po lice headqu arters he spent two hours in a cel l, where he was beaten and ver bally abused by two police men

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we arin g m ask s. Finall y, Paparizo testi fied that in November of 1999, again whil e he was drivi ng his ta xi, an oth er ca r ap pro ach ed h im a nd a ma ske d m an a ske d hi m to stop the c ar. Paparizo be came frightened and conti nued drivi ng. According to Paparizo, the masked
man in the o ther ca r beg an to s hoo t at him , and s om eone threw a sm oke g renad e into Paparizo’ s car. Paparizo was not injur ed, but

he all eges that

his attacker s were eit

her members of the pol ice for ce or members of an armed gang operati ng on police instr uctio ns. A fter this in cide nt, P apa rizo dec ided to lea ve A lban ia. In December of 1999, Paparizo was caught atte mpting t o enter t

he United States with a fraudulent Czech pa ssport , and he was subse quently charged with ill egall y se eking admissi on into t

he United States. In his removal proceedi ngs, Paparizo conceded removabil ity , and reque sted r elie f in the form of asy lum, withholding of removal, and protect ion under t

he Convention Agains t Torture. The IJ f ound that Paparizo was credibl e, but

denied hi s asy lum appli cati on based on his determi nation t hat the re was no past p ersecu tion on acco unt o f ethn icity, and tha t the ob jective e viden ce did not su ppo rt a reasonabl e fear of fut

ure pers ecuti on. The BIA affirmed t he IJ’s decisi on without opinion. On appeal, Paparizo rai ses three iss ues. Fi rst, he contends t hat the IJ ignored obj ectiv e ev iden ce o f pe rsec utio n ag ains t Al ban ian G reek s co ntain ed in the r eco rd. Second, he ass erts that t he IJ fai led to pr ovide him with the opport unity to pres ent

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additional evide nce bef ore rende ring a decision . And third, he urges that the B IA’s streamlining pro cedures u nder 8 C .F.R. § 100 3.1(e)(4) violate the S eparation of Pow ers doc trin e. We wi llbr ie fl y di sc us s e ac h of th es e i ss ue s b el ow. II. The Atto rney G enera l may gra nt asylum to any alien wh o is un able o r unw illing to return to his or her home count ry “because of per secuti on or well- founded fear of persecution on account

of race, reli gion, national ity , membershi p in a part icular soci al grou p, or p olitical op inion.” 8 U .S.C. § 110 1(a)(4 2)(A ). The burd en to p rove a w ellfounded fear of per secuti on lies with the applica nt, who must es tabli sh a genuine f ear of perse cution , and d emo nstrate th at a rea sona ble pe rson in the sam e circu mstan ces w ould sim ilarly fe ar p erse cutio n. Abdulrahman v. Ashcroft , 330 F.3d 587, 592 (3d Cir. 200 3). The applica nt’s own te sti mony may be suffici ent to e stabl ish el igibi lit y for asy lum, as lon g as the te stim ony is cred ible. Dia v. Ashcroft , 353 F.3d 228, 247 (3d Cir. 2003) (en banc). Our rev iew is limited to en suring that any factua l findings m ade by the age ncy are sup por ted b y subs tanti al ev iden ce in the r eco rd. Id. at 247. W e may reverse the IJ’s decisi on only if “anyreasonabl e adjudi cator [ would] be compell ed to concl ude to the contra ry.” 8 U.S .C. § 1 252 (b)(4)(B ); Dia , 353 F.3 d at 2 47. III. Paparizo c ontends t

hat the IJ erred in deny ing his applic ation be cause obje ctive

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evidence of per secuti on contai ned in the record was i gnored. Alt hough the IJ found that Paparizo was credible , he al so found that there was no evi dence that Paparizo ha d suffered pas t pers ecuti on on account of hi s Greek ethni city . The IJ reasoned that the persecution Papari zo all eged resul ted from the general corruption of the Albanian pol ice force and was not motivate d by a des ire t o persecute the Greek minority . This reasoning was in part

based on the 1999 St ate Department’s Country Report , which det aile d the la wle ss ne ss of

th e Al ba ni an pol ic e. Furth er , t he IJ co nc lu de d tha t P ap ar iz o’ s o wn testimony di d not est ablis h that he was persecut ed on account of hi s ethni city , si nce, for example, he had indic ated that his non-Greek passe ngers were al so beaten a nd robbed. Acco rdingly, the IJ proceeded to consider w hether objec tive evidence in the record supporte d a well-f

ounded fear of fut

ure pers ecuti on. The IJ again rel ied on the 1999 Co untry R epor t, whic h stated that the Alb anian gov ernm ent “p layed a co nstruc tive role in maintai ning the nation’ s general ly positive rec ord on the t reatment of minorit

ies. ” The refor e, althou gh P apariz o disp layed a su bjectiv e fea r of p ersecu tion up on re turn to Albania, the rec ord did not support a

finding t hat his fear was objec tivel y r easonable
. On appeal, Paparizo cont ends that the IJ fail ed to consi der cert ain rec ord evidenc e releva nt to his asylum c laim. H ow ever, h e only po ints to the 200 3 C oun try Repo rt. This repo rt wa s not, an d cou ld no t have been , includ ed in th e adm inistrative record beca use it
wa s not re leased until Fe brua ry of 20 04, lon g afte r the B IA h ad alre ady issue d its decision. A ccordingly, Paparizo canno t rely on this report to challenge the BIA ’s1 

### Even if we wer e able t o consider

the object

ive evide nce conta ined in the

2003 Country Report, we

could not find t

hat the evidence c ompelsa contra ry conclusi on from that of the

IJ. The 2003 Count

ry Report dis cussestension be tween Alba

nians and Albanian Gr

eeks, but it does not

indicat e that t he Albania

n governme

nt encoura

ges or willfully ignores persecu tion of th e minority.

2 

### The eviden ce he describes relates to the political and cultural association s in which me mbersof his fam

ily had been active. We note tha t such evi dence would ha ve been irrelevant to his as ylum application, as it waspremised solel y on his ethnicity. In any event, not

hing prevent

ed Papari zo from a

dducing thisevidence

at his he aring. 6 decisi on. 1 8 U .S.C. § 125 2(b)(4 )(A); see also Sew akv. INS , 900 F.2d 667, 673 (3d Cir.1990 ). Aside from this report, Paparizo p oints to no ev idence in the re cord that the IJ fail ed to consi der. Ther efore, we conclude that the IJ did not er

r in t his re spect, as Paparizo ur ges, and t

he denialof his as yl um application was based on subs tanti al evidence. IV. Pap rizo ne xt asse rts that the IJ failed to pro vide h im w ith the o ppo rtunity to present additi onal evi dence before r endering a decisi on. He essentiall y ur ges that had he known that the IJ was not per suaded that he had met his burden, he would ha ve offered further evidence supporting his cl aims. 2 Paparizo ba ses thi s contention on the Handbook on Procedures and Crite ria for Determini ng Refugee Status under the 1951 Convention (“the Handbook”) . The Handbook stat es that an “examiner” must see t o it t hat an applic ant fo r asylum has th e opp ortun ity to presen t his cas e as fu lly as possib le with all
ava ilabl e ev iden ce. Here, the re is nothing i n the rec ord indi cati ng that t he IJ prohibited or

discour aged

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Paparizo f

rom providi ng any addi tionalevidence t hat may have support ed his cas e or that Paparizo e ver reques ted permi ssion t o offer furt her evide nce. Moreover, the IJ did not indicate that there was evidence mis sing fr om the recor d, the presence of whic h may have
mo tivat ed h im to gra nt P apa rizo ’s ap plica tion
. Abdulai v. Ashcroft , 239 F.3d 542, 554 (3d Cir. 2003) (di scussi ng when and how the agency mayrequest corrobor ating e vidence from otherwis e credi ble appl icant s in orde r to satis fy t he burden of proof) . Furthermore,
we are n ot b oun d by th e gu ideli nes set f orth in th e H and boo k. Id. at 5 53 . A cc or di ng ly, we reject Paparizo’s second challenge to the agency pr oceedings. V. Lastly , Papari zo urges that the BIA’s str eamlini ng procedures violate the Separation of Pow ers doctrine be cause they transfer the A ttorney General’s
r es po ns i bi l i t i es un de r t he I mmi gr ati on an d N ati on al i t y Ac t t o the fe de r alco urt s. We rejec t thi s argument bec ause our pr ecedent has clear ly establ ished t hat the stre amlini ng procedures are constitutional a nd that our review function remai ns the sa me whether or not the B IA und ertak es a strea mlin ed a ppr oac h to app eals filed wit h th e ag enc y. Dia v. Ashcroft , 353 F.3d 228, 244 (3d. Cir .2003) ( en banc). Therefore, there ha s been no impermiss ible t

ransfer of administ

rati ve functi ons to the courts , and Papari zo’s cont ention that t he s tream linin g pr oce dur es a re u nco nstitu tion al is w itho ut m erit. VI. For the r easons di scussed i n this opinion, we will denyPaparizo’ s peti tions for review of the agency’s decisions.