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 11-9-2004 

# Duk a 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 . 03-3485

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w . v i l l a no va . e du/thir dc ir c uit_2004/138-1- NOT PRE CEDENT IAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT

__________ No. 03-3485

__________ ERVI N HARI LLA DUKA, Petitioner
v. JOHN AS HCROFT , A TTORNE Y GENERAL OF THE UNIT ED STA TES; BUREAU

OF CITIZENSHIP AND IM MIGRA TION SERVICES, Respondents.

__________ On Petiti on for Review of an Order of Removal from the B oard of Im migra tion A ppea ls U.S. Department

of Justi ce Executive Offi ce for Immigr ation Revi ew (BIA No. A76-142-514)

__________ Submitte d Under Third Circ uit L. A.R. 34.1( a)

October 27, 2004

___________ Be for e: N YG AA RD , AM BR O a nd G AR TH , Circu it Judges

(Opinion Fi led: November 9, 2004)

__________ OPI NION

__________-1-

Ga rth, Circuit

Judge : Petitioner Ervi n Harill a Duka challenge s a finalorder of t he Board of Immigration Appeals (“BIA”) denying his applic ation f or asy lum, for

withholdi ng of removal, and for protection un der the C onven tion Ag ainst Torture (“C AT ”). We h ave jurisdiction un der 8 U. S. C. § 12 52. We wi llde nyDuk a’ s P etit io n f orRev ie w. I. Bec ause we write e xclus ively for th e ben efit of the pa rties, we will rec oun t only those fac ts re levant

to the i ssues before us. Duka is a nati ve of Albania. He entered the Un ited S tates on J uly 6, 1 999 , in p oss essio n of a pa ssp ort th at did not belo ng t o hi m. Upon his arri val Duka indi cated hi s int ention to applyfor asy lum. Duka was int erviewed at the airp ort b y an IN S o ffic ial an d re ferr ed f or a “cre dib le fe ar” in terv iew
. On July 21, 1999, the INS conducted the credibl e fear i ntervi ew. Duka was repres ented bycounsel at the interview. Duri ng the interview Duka was asked whether he
wa s a m emb er of a ny tribe or e thnic g roup . In resp onse , Du ka state d, “I w as no t a member of the D emocratic Party but I was involved in 1993 in the forum. I was a student . There was a gr oup of student s in the Democratic Par ty but I wasn’t

a member.” He later explai ned that

he didn’t

join t he student

forum because he di dn’t l ike the perso n in ch arge o f the g roup . Du ka ne xt testified that his f ather w as also curren tly seeking as yl um in the Unit ed State s but that in Albania his father had worked for the government as an elect

rici an. He further st ated that his mother had worked i n a-2-

warehouse for t

he government. Duka also tes tifi ed that after he fini shed high sc hool he was in the army for a y ear and a hal f. Du ka the n turn ed to a desc ription o f diff iculties h e and his fam ily experien ced in Alb an ia . H e s tate d tha t h e wa s d et ai ne d i n a labor ca mp f ro m 19 82 t

hr oug h 19 87. He
ex pl ai ne d tha t h is fa mi ly was de ta in ed be ca us e h is fa th erwas “i nvo lv ed pol it ic al ly .” He furthe r testified that he particip ated in three d emo nstration s aga inst the S ocialist P arty, in 199 1, 199 7 and 199 8. D uka s tated th at in 19 91 an d 19 97 h e w as be aten b y police in connecti on with thos e demonstrat ions. He also tes tifi ed that he was arres ted aft er the 1997 and 199 8 demonstrations. On July 29, 1999, the INS issued a Noti ce to Appear charging Duka with fraud and removabil ity

under Secti ons 212(a)( 6)(C)(I ) & (a)(7) (A)(i) (I) of the INA, 8 U.S.C. §§ 1182(a)( 6)(C)(i ) and (a) (7)(A)( i)( I). Duka conceded removabil ity but denie d the fraud charge. He re ques te d as ylum, wi thh old ing of r emova l a nd pr ote ct ionunde r the CAT. Duka was the sole witness at his asylum heari ng, at

which he recount ed much of the te sti mony he gave at the cre dible f

ear interview. What fol lows are those portions of his ora l tes timonybefore the IJ that were di fferent from his st atements in the c redibl e fear inter view
. At th e start of the he aring, D uka c orrecte d sev eral state men ts he h ad m ade a t his credibl e fear i ntervi ew. He testi fied that he was not i n the army ; that his fat her was an elect rici an but did not

work for the government; and t hat his mother did not

work in a-3-

warehouse for t

he government. Duka explained t hat the inaccur ate t esti mony was the resul t of the inter

preter who was an Albanian from Kosovo and who allegedl y had diffi culti es with t

he trans lati on. Duka claimed that aft er the Democratic Party was el ected i n Albania i n 1992, he
was a m embe r of that party’s youth forum . He exp lained that youth foru m m embe rs were indivi duals who were not ol d enough to be offi cialpartymembers. Duka admitted that he did not have any document ation to corrobor ate hi s all eged membership. Duka further testi fied that aft er the anti- government demonst rati on in 1997, he was
arres ted, subjected to forc e and int errogated about hi s father . He stated that he was beaten whil e in custody t o the point that he had to be hospi tali zed, where he remained for two wee ks . H e c la im ed th at he su ff er ed a b ro ke n r ib an d s ev er e t emp er atur e l os s. On
cross-exam ination, Duk a adm itted that he may hav e mad e a mistake in describing the part of his bodythat was i njured. He also admitted that he had not mentioned t

he hospit aliz ation i n eithe r his c redibl e fear i ntervi ew or his asylum appli cati on. Duka then test

ifie d that, through an at torney , his mother obtained his medical records detai ling hi s hospit al st ay. However, a consular report concl uded that the document Duka submitted was a forgery . By wayof explanation, Duka st ated that he could not ve rifythe val idit y of t he document and coul d not get an affidavi t from ei ther t he attorne y or the do ctor w ho h ad sig ned it, b ecau se bo th had left A lbania and g one to Gr eec e.1 The IJ dismissed the fraud charge against Duka. -4- On c ross-exam ination, Duk a testified that he lives in Ph iladelphia w ith his father, mother and sister. According to Duka, his father was not present at t he hearing because of poo r h ea lt

h a nd b ec au se he di d no t wantto ap pe arbe fo re a j udg e i n l ig htof hi s o wn pending asy lum case. None of Duka’s familymembers provided a ffidavi ts i n support of his appl ication. In an oraldecisi on, the IJ det ermined that, based on his oral testi mony, Duka qualif ied for a sylum under the theories of polit ical opinion and members hip in a parti cular socialgroup. However, t he IJ concl uded that

Duka was not credibl e, and so deni ed Duka’s appli cati on for asy lum, withholding of de portation, a nd protect ion under t

he CAT. 1 The IJ fou nd th at there we re sign ifican t contra diction s betw een D uka’ s cred ible fear in terview and h is oral tes timon y. In particu lar, the IJ n oted th at Du ka state d in h is credibl e fear i ntervi ew that he was not a member of the Democrati c Party , but at the hea ring Du ka te stifie d th at he wa s in f act a me mb er o f the youth for um of th at pa rty. With respec t to t

hat inc onsistency, the IJobserved: So, we have some incons ist encies i n terms of t he respondent ’s affi liat

ion with the de mo cratic p arty and th at’s cru cial, that is a crucia l point b ecau se if he’s a mem ber o f the d emo cratic p arty, this wo uld p ut him in op positio n to the communist

government, get him t o demonstrations, get him t o where he is harmed , get him to w here they wo uld be arresting h im and g et him w here he f ear s f utur e harm. The IJ fou nd f urther that D uka s ubm itted no evide nce to corro bora te his cla im of party
me mb ersh ip, in the f orm of e ither doc um enta tion or a ffid avits fro m f am ily me mb ers.-5-

Thu s, the IJ c onclu ded th at “[t]h ere is an abysm al failur e of b urde n of proo f here as to h is dem ocr atic p arty af filiati on.” The IJ then t

urned to t

he fraudul ent hospi tal c erti ficat e. He noted t hat Duka had severalmonths to r ebut the finding t hat the document was a forgery but had proffere d nothing to overcome that determi nation. Furthermore, the IJ re ject ed Duka’s clai m that he could not

obtain an affidavi t from the doctor who si gned the certifi cate because the doctor was no l onger in Albani a. The IJ f ound his expl anati on unpersuasi ve because the consular rep ort indicated that the do ctor was still living in A lbania as of Ju ly 2000, over a yea r a fte r D uk a le ft t he co un try. Fina lly, the IJ em phas ized th at the in cons istencie s in D uka’ s testimo ny “cou ld have allbeen easi ly clear ed up by bringing i n live wit nesses, eithe r the mothe r or the father or the s ist er, or

at le ast, submitting a det aile d affidavi t from anyof those peopl e.” The IJ found that Duka had not provi ded a “reas onable expl anati on” for the absence of such corr oborati on, particularlyas his f amilywas livi ng in Phil adelphi a at the time of t he hearing. The BIA affirm ed the IJ’s de cision w ithout o pinion . Du ka tim ely filed this Pet it io n f orRev ie w. II. Where, as her e, the BIA affirms the IJ’s decisi on without opi nion, t he opinion of the I J co nstitu tes th e fin al ag enc y dete rmin ation for pur pos es o f ou r rev iew . 8 C .F.R . §-6-

100 3.1(e)( 4)(20 03); Dia v. Ash croft , 35 3 F
. 3d 22 8, 24 2 ( 3d Ci r . 20 03 ) ( en ba nc )
. We
rev iew adv erse cred ibility de term inati ons for sub stan tial ev iden ce. Balasubramanrim v. INS , 1 43 F .3 d 15 7, 161 (3 d Ci r. 199 8) . U nde r t hi s d ef er en ti al st an da rd of

re vi ew, we
mu st uph old the credib ility determin ation o f the B IA o r IJ unle ss any “re ason able adjudicator w ould be c omp elled to conclu de the con trary.” 8 U.S.C. § 12 52(b)(4)(B ). For Duka to prevai l, t

hen, the evidence of c redibi lit y must be so strong in his favor that i n a civi l trial he would be enti tled to judgment on the credi bili ty issue a s a matte r of law
. See INS v. Elias-Zacari as , 502 U .S. 478, 481 n.1 (1992 ) (holding that B IA’s decisio n can be rev ersed only w here p etitioner ’s evid ence “com pels” a reaso nable factfi nder to fi nd in his favor). That sai d, advers e credi bili ty determi nations cannot be bas ed o n m ino r inc ons isten cies or a dm issio ns. Ga o v. A shcro ft , 299 F.3d 266, 272 (3d Cir. 2002) . Ins tead, “the di screpanci es must i nvolve the ‘heart of the asylum clai m.’.” Id
. (citation omitted). Furth ermo re, Du ka ha s the b urde n of supp orting h is asylum claim throu gh cr edible testim ony o f eith er p ast p erse cutio n or a w ell-f oun ded fea r offutu re p erse cutio n. Abd ille v. Ash croft , 242 F.3d 477, 482 (3d Cir. 2001). Credible te sti mony, e ven without
cor rob ora tion , som etim es m ay be suf ficie nt to me et thi s bu rde n. 8 C .F.R . § 12 08.1 3(a ). Our p rior decisions m ake clear, how ever, that “the IN S ma y require docum entary evidence t o support a

clai m, even from othe rwise cr edible applic ants, to meet t heir bur den of proof.” Gao , 299 F.3d at 272 ( citing A bdu lai v. As hcro ft , 239 F.3d 542, 554 (3d Cir.-7-

2001)). As a n initial m atter, w e rejec t Du ka’s c onten tion tha t the B IA f ailed to com ply with it s own regulations when it issued a summary aff

irmance i n this case. We are bound by our recent decisi on in Dia v. Ash croft , which u pheld the c onstitutionality of the BIA ’s summary aff

irmance pr ocedure. With respec t to t

he substantive merits of Duka’s appeal, substant ial e vidence supp orts the IJ’s de termin ation th at Du ka fa iled to su ppo rt his asylum claim with credib le evide nce. In reach ing h is con clusion , the IJ pr oper ly relied on the inc onsiste ncies in Duk a’s testimony, the fraudu lent docum ent, and the fa ilure to corrobora te Duk a’s testim ony th rou gh d ocu me ntati on o r aff idav its of fam ily me mb ers. Duk a mak es two p rincipal argum ents on ap peal. First, he contend s that the IJ should n ot have relied o n the fraud ulent med ical certificate because the consu lar report that deem ed it a forgery may not h ave bee n reliable. Secon d, Duk a argues tha t the IJ should not

have rel ied on the inconsi stenci es between hi s credi ble fear interview and oral testimo ny. Both conte ntions are w ithout m erit. With respec t to t

he credi ble fear

interview, Duka rel ies on Ba lasu bra ma nrim , in which this Court held t

hat a cr edibil ity

determi nation c annot be sus taine d solel y upon an airp ort in terv iew wh ose relia bility w as q ues tion able
. See 143 F.3 d at 1 64. Bala subr am anrim , how eve r, inv olv ed a n air por t inte rvie w, n ot a c red ible f ear in terv iew
. Furthermore, unl ike the BIA in Bala subr am anrim , the IJ here based his adverse-8-

credibi lit y determination on multiple grounds. Thus, Duka’s rel iance on Balas ubr ama nr im is m ispla ced
. As for the for ged medical c erti ficat e, Duka’s unsubs tanti ated al legations on appeal as to the cons ular rep ort’s lack of relia bility are irrelev ant. D uka b ears th e ultim ate burden of provi ng past per secuti on. Yet he offered no evidence be fore the IJ to c ontradi ct the rep ort, desp ite hav ing se veral m onth s to m arsha l evide nce th at wo uld reb ut or ex plain the co nsula r repo rt. The IJ, on th e othe r han d, gav e spe cific an d cog ent rea sons to supp ort his a dver se cred ibility determ ination . The record evide nce d oes n ot com pel a contrary conclusion. III. Inasmuch as t

he IJ’s decisi on was supported by substant ial e vidence i n the rec ord, we wi llde nyth e Pe ti ti on f orRev ie w.