2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-8-2009

Velihaj v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3584

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 07-3584

 

ASTRIT VELIHAJ,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES

 

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A77 761 088)

Immigration Judge: Honorable Charles M. Honeyman

 

Submitted Pursuant to Third Circuit LAR 34.1(a)

May 20, 2009

Before: AMBRO, FISHER and JORDAN, Circuit Judges

(Opinion filed: July 8, 2009)

 

OPINION

 

PER CURIAM

Astrit Velihaj, a native and citizen of Albania and a member of that country’s
2

Democratic Party, entered the United States in July 2001. He was charged as being

removable pursuant to Immigration and Nationality Act (“INA”) § 212(a)(6)(A)(i) [8

U.S.C. § 1182(a)(6)(A)(i)], based on his entry into this country without being admitted or

paroled. Velihaj applied for asylum, withholding of removal, and protection under the

United Nations Convention Against Torture, claiming that he feared persecution because

two prominent mobsters had ransacked his home and threatened his life after he publicly

identified them and a Socialist Party official as being involved in the illegal trafficking of

women. 

The Immigration Judge (“IJ”) denied relief because Velihaj failed to demonstrate

an adequate nexus between his fear of persecution and his political opinion, and because

he did not show that the Albanian government was unable or unwilling to control his

potential persecutors. The Board of Immigration Appeals (“BIA”) dismissed Velihaj’s

appeal. The Board took administrative notice of the 2005 and 2006 State Department

Country Reports, which documented the establishment of a witness protection program

for organized crime cases, a 20-fold increase in the witness protection program budget, an

absence of reports of police involvement in trafficking, and the Democratic Party’s

victory in the 2005 general election. Because the more recent Country Reports did not

support Velihaj’s claim, the Board rejected his argument that the IJ should have continued

the proceedings pending publication of those Reports. This timely petition for review

followed. 
3

We have jurisdiction under INA § 242 [8 U.S.C. § 1252]. Where, as here, the BIA

both adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, we

review the decisions of both the IJ and the BIA. See Xie v. Ashcroft, 359 F.3d 239, 242

(3d Cir. 2004). Our review of these decisions is for substantial evidence, considering

whether they are “supported by reasonable, substantial, and probative evidence on the

record considered as a whole.” Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir.

1998). The decisions must be affirmed “unless the evidence not only supports a contrary

conclusion, but compels it.” Zubeda v. Ashcroft, 333 F. 3d 463, 471 (3d Cir. 2003)

(quoting Abdille v. Ashcroft, 242 F.3d 477, 484 (3d Cir. 2001)). 

An applicant may demonstrate eligibility for asylum by showing either past

persecution or a well-founded fear of future persecution on account of race, religion,

nationality, membership in a particular social group, or political opinion. See INA

§ 101(a)(42)(A) [8 U.S.C. § 1101(a)(42)(A)]. To establish a well-founded fear of future

persecution, an applicant must (1) provide credible testimony showing a genuine

subjective fear of persecution, and (2) demonstrate as an objective matter that “a

reasonable person in the alien’s circumstances would fear persecution if returned to the

country in question.” Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005) (citation and

internal quotation marks omitted). “[A] key task for any asylum applicant is to show a

sufficient ‘nexus’ between persecution and one of the listed protected grounds.” 

Ndayshimiye v. Att’y Gen., 557 F.3d 124, 129 (3d Cir. 2009). An asylum applicant,
 Because Velihaj applied for asylum before May 11, 2005, he is not subject to a 1

provision in the REAL ID Act of 2005 that requires an alien applying for asylum in a

mixed motive case to show “that race, religion, nationality, membership in a particular

social group, or political opinion was or will be at least one central reason” for the alleged

persecution. See INA § 208(b)(1)(B)(i) [8 U.S.C. § 1158(b)(1)(B)(i)]; Ndayshimiye v.

Att’y Gen., 557 F.3d 124, 128-29 (3d Cir. 2009).

4

however, need not demonstrate that the protected ground was the exclusive motivation

behind the alleged persecution. See Singh v. Gonzales, 406 F.3d 191, 197 (3d Cir. 2005) 1

(noting that in a mixed-motive case, an alien need only “show that the persecution was

motivated, at least in part, by one of the protected characteristics”). Nevertheless, an

applicant must provide some evidence of motive, whether direct or circumstantial. See

Lie v. Ashcroft, 396 F.3d 530, 535 (3d Cir. 2005) (citing INS v. Elias-Zacarias, 502 U.S.

478, 483-84 (1992)).

In this case, we believe that substantial evidence supports the conclusion that

Velihaj failed to establish a nexus between his political opinion and his fear of

persecution. Velihaj claimed that he traveled to Greece on his own accord in June 2000

to investigate trafficking in women. While there, Velihaj interviewed trafficking victims

and learned that two mobsters, who were “supported” by a Socialist Party official,

controlled most of the prostitutes in Athens. After he returned to Albania and reported

his findings to Democratic Party leaders, Velihaj was warned that the mobsters he had

identified were looking for him and would kill him. He fled to Greece the next day. A

few months later, an article about Velihaj’s investigation appeared in the Democratic
 Velihaj also testified that the police are unable or unwilling to protect him from the 2

mobsters. But, even if the police were motivated by Velihaj’s political opinion, as

explained below, changed conditions in Albania undermine his claim.

5

Party newspaper “Nacionalisti.” The article named Velihaj, published his photograph,

and reported the names of the traffickers that Velihaj had uncovered. The day after the

article was published, the mobsters went to Velihaj’s house, destroyed property, and told

his family that they knew he was in Greece and that they were going to find him. Fearing

for his life, Velihaj traveled to the United States. 

Although the evidence indicates that the threat to Velihaj’s life may be real, it does

not compel the conclusion that he fears persecution on account of his political opinion. 

He claimed that he will be harmed by the mobsters. And while the Socialist Party 2

official allegedly supports the mobsters, nothing in the record indicates that the mobsters

are motivated, even partially, by Velihaj’s membership in the Democratic Party or by the

fact that Democratic Party leaders disseminated the details of his investigation. Rather,

according to Velihaj, the mobsters seek to harm him solely because of his efforts to

expose their identities. In addition, Velihaj’s trip to Greece was not related to his

membership in the Democratic Party. Instead, he went of his own volition because

“somebody . . . had to do something to stop [the trafficking].” Because there is no

indication that the mobsters are seeking anything other than private revenge for Velihaj’s

exposure of their identities, we must conclude that he has failed to establish a nexus to a

protected ground.
 We note the relatively low threshold represented by the “substantial evidence”

3

standard. Our acceptance of the Board’s conclusion, based on that standard, does not

mean that we take lightly the fear that Velihaj has expressed.

 We reject Velihaj’s contention that the BIA erred by taking administrative notice of 4

the Country Reports without providing him with an opportunity to respond. Although he

argued before the BIA that the IJ should have continued the proceedings until the

publication of up-to-date Country Reports, once those Reports were issued Velihaj failed

to explain how they affected his case. 

6

Even if Velihaj could establish a link between his fear of persecution and his

political opinion, substantial evidence supports the conclusion that conditions in Albania

have changed so as to make his fear no longer objectively reasonable on political

grounds. The BIA was permitted to take administrative notice of the Department of 3

State Country Reports for 2005 and 2006, see 8 C.F.R. § 1003.1(d)(3)(iv), which

indicated that the Democratic Party was victorious in the 2005 elections, that there were

no reports of police involvement in trafficking, that prosecution of traffickers had

improved, and that the Albanian government had taken substantial steps to develop a

witness protection program. In light of these changed country conditions, the Board was 4

within its discretion to conclude that Velihaj does not have a well-founded fear of future

persecution. 

Because Velihaj failed to satisfy the lower statutory burden of proof required for

asylum, he also necessarily failed to satisfy the clear probability standard for withholding

of removal. See Ambartsoumian v. Ashcroft, 388 F.3d 85, 88-89 (3d Cir. 2004). 

Moreover, Velihaj failed to establish that it is more likely than not that he will be tortured
7

upon his return to Albania. See 8 C.F.R. §§ 208.16, 208.18. 

For the foregoing reasons, we will deny the petition for review. We do so with the

request that the Government consider whether humanitarian parole for Velihaj is possible

in the United States or whether there can be coordination with the Albanian government

for Velihaj’s inclusion in its witness protection program should he request it.