2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-14-2008

Galo v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4874

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 06-4874

____________

ARBEN GALO,

 Petitioner

 v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

____________

On Petition for Review from an

Order of the Board of Immigration Appeals

(Board No. A96-017-570)

Immigration Judge: Miriam K. Mills

____________

Argued March 3, 2008

Before: SCIRICA, Chief Judge, FISHER and ROTH, Circuit Judges.

(Filed: May 14, 2008)

Thomas C. Brannen (Argued)

Elizabeth C. Surin

Morley, Surin & Griffin

325 Chestnut Street, Suite 1305-P

Philadelphia, PA 19106

Attorneys for Petitioner

Richard M. Evans

Nancy E. Friedman (Argued)

Marion E. Guyton

United States Department of Justice
2

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Attorneys for Respondent

____________

OPINION OF THE COURT

____________

FISHER, Circuit Judge.

Arben Galo petitions for review of the Board of Immigration Appeals’ (“BIA’s”)

dismissal of his appeal from the decision of the Immigration Judge (“IJ”) denying his

applications for asylum, withholding of removal, and protection under the Convention

Against Torture (“CAT”). For the reasons that follow, we will deny the petition insofar

as it relates to Galo’s claims for asylum and withholding of removal. We will grant the

petition with regard to Galo’s CAT claim and remand to the BIA.

I.

We write exclusively for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

Galo was born on July 27, 1983, in Albania. His father began participating in the

Democratic Party of Albania (DP) when Galo was a child. Galo became active with the

DP Youth Group at age fourteen. After Albania’s transition from communism, power in

the 1990s alternated between the Socialist Party and the DP. In Galo’s village, support
3

for the communists remains strong. The police in the village are Socialist Party

supporters.

In his affidavit and his testimony before the IJ, Galo related that his family was

mistreated because of their affiliation with the DP. Galo states that in 1996, he was

beaten and detained overnight by the police, who accused him and his friends of

“negatively affecting the youth of Albania.” In 1998, men in plain clothes ransacked his

home and took his father to the police station, where he was detained for three days,

beaten, and underfed. In 1999, Galo participated in a peaceful DP demonstration in his

village. The police came to the demonstration and began to arrest demonstrators. Upon

learning Galo’s name, the police beat and kicked him and said that he should remember to

tell his father everything that happened.

In May 1999, Galo’s father began receiving threats over the phone that his children

would be kidnapped unless he began supporting the Socialist Party. His father fled to

Greece in September 1999 and prepared for the family to join him. Galo, who was

sixteen years old, did not join his father in Greece immediately because he did not feel

scared. Instead, he stayed in his village with his grandfather.

On November 24, 1999, Galo and two of his DP Youth Group friends were

walking to a meeting regarding an upcoming DP youth conference. They stopped at a

convenience store. Galo and one friend went into the store, but the third friend, Sami,

stopped to talk to a man who approached him outside the store. While Galo was paying
4

for a soft drink, he heard a gunshot. He, his friend, and the storekeeper went outside and

saw Sami laying on the ground, while the man who had been talking to him was running

away with a gun in his hand. Sami died from the gunshot wound. Galo reported the

incident to the police; he says the police did not do anything in response to his report.

At 10:00 p.m. the same day, someone knocked on Galo’s grandfather’s door. 

When Galo’s grandfather opened the door, Galo saw two men, including the man who

had killed Sami. The men pushed Galo’s grandfather aside and hit him, shooting their

guns inside the house. Galo fled, but he learned the next day that the men had ransacked

the house. They told Galo’s grandfather than Galo had “seen too much” and was “a

witness who could cause trouble.” They threatened to kill Galo just like they killed his

friend. Galo believes Sami’s murder was politically motivated, and he says that prior to

the murder, Sami had received threats that he should cease his DP activities.

Galo fled Albania six days later and joined his family in Greece, where he

remained for three years. He states that he could not get permanent residency status in

Greece and did not feel safe there because the Socialist Party is active in Greece, as it is

in Albania.

Galo entered the US with an altered Italian passport in 2002. He was detained and

referred to an IJ. On July 16, 2003, Galo submitted an I-589 Application for Asylum. 

After a hearing, the IJ found Galo not credible, denied all forms of relief, and ordered him

removed to Albania. Galo appealed to the BIA.
5

The BIA stated that the credibility determination did not “comport with applicable

caselaw in the United States Court of Appeals for the Third Circuit.” The BIA explained

that in light of contemporaneous country reports, “we cannot conclude that political

violence is outside the realm of possibilities in Albania or that the applicant’s story is

necessarily incredible in light of country conditions.” Despite this qualified rejection of

the IJ’s credibility finding, the BIA affirmed the IJ’s determination that Galo was not

eligible for relief, agreeing with the IJ that there was no nexus between the persecution

Galo described and any protected ground. The BIA did not discuss the IJ’s

determinations with regard to withholding of removal and CAT protection; nevertheless,

it dismissed Galo’s entire appeal. Galo filed a timely Petition for Review.

II.

To the extent that “the BIA issues a decision on the merits and not simply a

summary affirmance, we review the BIA’s, not the IJ’s, decision. We must treat the

BIA’s findings of fact as conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.” Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir.

2005) (internal quotation marks and citations omitted). To the extent that the BIA adopts

the findings of the IJ, we review the decisions of both the IJ and the BIA. Chen v.

Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004).

We review the agency’s factual findings under the deferential “substantial

evidence” standard. Gao v. Ashcroft, 299 F.3d 266, 262 (3d Cir. 2002). Under this
6

standard, we will uphold the findings of the IJ and the BIA “unless the evidence not only

supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483-

84 (3d Cir. 2001).

III.

Galo asserts that the BIA erred in determining that he was not eligible for asylum,

withholding of removal, or relief under the CAT. He argues that his persecutors were

motivated by his political opinion, and therefore he qualifies for relief.

In order to qualify for asylum, an individual must prove that he has “a wellfounded fear of persecution on account of race, religion, nationality, membership in a

particular social group, or political opinion.” 8 U.S.C § 1101(a)(42)(A). In order to

qualify for withholding of removal, the applicant must demonstrate a “clear probability”

that persecution will result if the applicant is removed to a particular country. I.N.S. v.

Stevic, 467 U.S. 407, 413 (1984).

In order to qualify for relief under the CAT, the applicant must present evidence

establishing “that it is more likely than not that he or she would be tortured if removed to

the proposed country of removal.” 8 C.F.R. § 208.16(c)(2). “Torture is an extreme form

of cruel and inhuman treatment.” 8 C.F.R. § 208.18. It consists of “any act by which

severe pain or suffering, whether physical or mental, is intentionally inflicted on a

person” for purposes such as punishment, intimidation, coercion, or the obtaining of

information or a confession. Id. An act is not considered torture if it is not “inflicted by
7

or at the instigation of or with the consent or acquiescence of a public official or other

person acting in an official capacity.” Id.

A.

The BIA concluded that Galo did not qualify for asylum because the persecution

he experienced was not based on one of the protected grounds (race, religion, nationality,

membership in a particular social group, or political opinion). When the intruders came

to Galo’s grandfather’s house on the night of Sami’s murder, they threatened Galo

because he had “seen too much” and was “a witness who could cause trouble.” Thus, the

threats were based on Galo’s status as the witness to a crime, rather than on his political

opinion.

Galo argues that he does not “bear the unreasonable burden” of establishing

exactly why the intruders threatened him. He states that their actions were motivated at

least in part by his political opinions, and this is sufficient to show persecution based on

one of the protected grounds. Galo does not cite our “mixed motive” cases, which would

provide the strongest support for his argument. See, e.g., Singh v. Gonzales, 406 F.3d

191, 197-98 (3d Cir. 2005); Amanfi v. Ashcroft, 328 F.3d 719, 727 (3d Cir. 2003). Even

if we take the mixed motive cases into account, the IJ and BIA determined that Galo’s

persecutors were not motivated by Galo’s political opinion, but instead by the fact that he

had witnessed a murder.
8

There is substantial evidence in the record to support the determination that Galo

was not persecuted based on one of the protected grounds, and therefore we will not

disturb it. Because Galo’s mistreatment was not based on one of the protected grounds,

he does not qualify for asylum.

B.

In order to qualify for withholding of removal to a particular country, an alien must

show a clear probability that his “life or freedom would be threatened in such country on

account of race, religion, nationality, membership in a particular social group, or political

opinion.” Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003). The BIA concluded that

there was no nexus between the threats and Galo’s political opinion, so there is

substantial evidence to support the determination that Galo does not qualify for

withholding of removal.

C.

The BIA dismissed Galo’s CAT claim without providing any reasoning for its

decision. We have explained:

A petition for protection under the [CAT] differs significantly from

petitions for asylum or withholding of removal because the alien need not

demonstrate that he will be tortured on account of a particular belief or

immutable characteristic. Matter of S—V—, [21 I&N Dec. 1306 (BIA

2000)]. Rather, in assessing whether an alien is more likely than not to be

tortured in the proposed country of removal, INS regulations identify a nonexclusive list of factors to consider: (1) evidence of past torture . . . ; (2) the

possibility the alien could relocate to another part of the country where his

torture is unlikely; (3) evidence of “gross, flagrant or mass violations of
9

human rights” in the country; and (4) any other relevant country conditions

information. 8 C.F.R. § 208.16(c)(3).

Amanfi, 328 F.3d at 725.

The IJ denied Galo’s CAT claim on the basis of the adverse credibility

determination, but the BIA determined that Galo’s story was “not necessarily incredible

in light of country conditions.” The BIA’s conclusion that Galo was not threatened on

account of his political opinion forecloses his claims for asylum and withholding of

removal, but is not relevant to his claim to CAT relief. We are unable to determine, based

on the record, why the BIA denied Galo’s CAT claim. “In order for us to be able to give

meaningful review to the BIA’s decision, we must have some insight into its reasoning.” 

Awolesi v. Ashcroft, 341 F.3d 227, 232-33 (3d Cir. 2003). We will remand so that the

BIA can specifically consider Galo’s CAT claim and provide insight that would allow us

to review its decision on appeal.

IV.

For the foregoing reasons, will we grant the petition for review and remand for

further agency action on Galo’s CAT claim only, in accordance with this opinion.