2006 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-23-2006

Caushi v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 04-4506

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Caushi v. Atty Gen USA" (2006). 2006 Decisions. Paper 1663.

http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1663
PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

Nos. 04-4506 & 05-3151

 

ROBERT CAUSHI,

Petitioner

v.

ATTORNEY GENERAL OF 

THE UNITED STATES,

Respondent

 

On Appeal from an Order entered by

The Board of Immigration Appeals

No. A78-821-176

 

Submitted Under Third Circuit LAR 34.1(a)

November 15, 2005
 Honorable Louis H. Pollak, United States District Judge *

for the Eastern District of Pennsylvania, sitting by designation.

2

Before: BARRY and AMBRO, Circuit Judges

POLLAK, District Judge *

(Filed January 23, 2006)

 

OPINION OF THE COURT

 

AMBRO, Circuit Judge 

Robert Caushi petitions for review of a decision of the

Board of Immigration Appeals (“BIA”) denying his motion to

reopen and remand his case to the immigration judge (“IJ”) and

affirming the IJ’s decision denying his application for asylum

and withholding of removal as well as his request for relief

under the Convention Against Torture (“CAT”). Caushi also

petitions for review of a later BIA decision denying another

motion to reopen. These petitions have been consolidated for

review under Immigration and Nationality Act § 242(b)(6), 8

U.S.C. § 1252(b)(6) (“[A]ny review sought of a motion to

reopen or reconsider [an] order shall be consolidated with the

review of the order.”). For the reasons stated below, we grant

the first petition and deny the second.
 As of March 1, 2003 the INS ceased to exist, and its 1

functions were transferred to the Department of Homeland

Security. See 6 U.S.C. § 271. 

3

I. Facts and Procedural History

A. Background

Caushi is a young man who is a native and citizen of

Albania. He arrived in this country on September 19, 2000 and

admitted to an immigration inspector that he was using a fake

U.S. passport. In October 2000 the Immigration and

Naturalization Service (“INS”) served him with a notice to 1

appear for removal proceedings. Caushi conceded removability

on the basis of not having a valid entry document but applied for

asylum, withholding of removal, and relief under the CAT. 

In his asylum application, Caushi asserted that he had

been a member of the youth movement of the Democratic Party

of Albania (“DP”), a political party that opposed the governing

Communist, and later Socialist, parties. He alleged that he had

been persecuted in Albania because of his political beliefs.

Specifically, he contended that he and his brother-in-law, Dritan

Azune, were arrested in May 1998 at a DP rally, and although

Caushi was released after a few hours, Azune was detained for

three days. Shortly after Azune was released from police

custody, he was shot to death by unknown assailants in front of

the police station. Caushi also alleged that on September 13,
4

1998 he was “severely beaten” by police officers at a

demonstration in Tirana, Albania’s capital, while protesting the

assassination of a DP leader, during which he “broke a tooth and

sustained other injuries.” Caushi stated that he went into hiding

after this incident. He further stated that the police came to his

family’s house looking for him and pointed a gun at his father

when they learned he was not there. Caushi also stated that he

feared being tortured or killed in Albania on account of his

political activities.

B. Proceedings Before the Immigration Judge 

Caushi appeared before an IJ in April 2002. He testified

that he was released from police custody in May 1998 because

the police could not verify that he was a member of the DP, but

that they knew his brother-in-law was a “high-profile” DP

member. With respect to the incident in September 1998,

Caushi testified that police started shooting at demonstrators

with machine guns and then beat him with a rubber club. He

stated he suffered numerous injuries as a result of this beating,

including a dislocated disc in his spine and several lacerations

on his body and arms that required stitches. Caushi went into

hiding in the northern town of Bajram Curri after police officers

came to his parents’ house, pointed a gun at his father, hit his

father on the head with a gun, and threatened to kill the family

if they did not say where Caushi was. He further stated that,

although his Albanian passport contains two visas indicating

travel to Macedonia and Bulgaria during the time he was
5

allegedly in Bajram Curri, those visas are fraudulent and were

obtained by his father to “show [the police] that I had left the

country and come back.”

Caushi next called his sister, Loreta Caushi, to testify.

Loreta, who also had an asylum application pending before the

immigration court, testified that Caushi and their father were

members of the DP, and that she was familiar with “the entire

story” of why her brother left Albania, beginning with his arrest

in May 1998. Loreta stated that their brother-in-law was

murdered a few days after Caushi was released from custody.

To her knowledge, Caushi fled to Bajram Curri after the May

1998 incident and attended a DP rally in Tirana in July 1998.

She also testified that “[t]he police came several times at our

home to look for [my] brother,” and on one occasion they “put

the machine gun on top of my father’s head.” She stated that the

police said that, if they did not find Caushi, they would kill the

family like they killed her brother-in-law. Regarding the

September 1998 rally, Loreta asserted that she was at the rally

with her brother but did not see him beaten by police. She did

state, however, that someone from the DP came to their house

and told them that her brother was hurt, “that he had cuts in his

body and his hand, and he had broken a tooth.” She testified

that the next time she saw her brother was when she came to the

United States. 

Caushi also submitted a hospital report from Albania that

indicated he had been treated for contusions on the day of the
6

September 1998 demonstration and an affidavit from Dr.

Josephine Kerr, a licensed pediatrician and volunteer for

Doctors of the World, who stated that she examined Caushi and

noted several scars on his chest, elbow, knees, and shoulder, as

well as tenderness in his back. She also noted that Caushi

became “tearful and agitated” when describing the beatings he

allegedly suffered at the hands of the Albanian police. In

addition to clinical observations of Caushi’s condition, Dr.

Kerr’s report contained a lengthy account of his past history,

apparently based solely on his statements, and concluded with

an assessment that Caushi “has a real and valid fear of danger to

himself if he returns to Albania under the present government

rule.” Caushi also submitted photographs showing numerous

scars on his arms and chest. 

Upon the close of evidence, the IJ proceeded to question

Caushi regarding the contents of two news articles the IJ

obtained from the Internet. The articles — one from CNN and

another from the BBC — recounted the violence surrounding

the September 13, 1998 demonstration of which Caushi was a

part, including a riot by the protesters and counterattacks by the

Albanian police and military. The IJ read portions of these

articles to Caushi and asked him if they adequately reflected the

events of that day, and Caushi responded yes. The IJ did not,

however, place the articles in the record. 

On April 9, 2002 the IJ decided orally that Caushi was

not eligible for asylum, withholding of removal, or relief under
7

the CAT. The IJ found that, while Caushi belonged to the DP

youth movement, he was not a “full-blown member” and held no

leadership position. The IJ believed Caushi’s testimony that he

was arrested and briefly detained following the DP

demonstration in May 1998, and that he was injured during the

“extremely violent” DP demonstration in September 1998

(during which, the IJ found, both Albanian police and

demonstrators used force and “the government lost control of

the capital city of Tirana for at least a few days”). The IJ noted,

however, that the hospital report submitted by Caushi said

nothing about him having suffered cuts. The IJ also largely

discounted Dr. Kerr’s report because, although the doctor

“appear[ed] to be well intentioned,” her affidavit was mostly “a

recitation of the respondent’s claim, and even a plea for the truth

of the facts concerning the claim,” and her “ultimate medical

evaluation of the respondent appear[ed] . . . less credible

because of the seven pages of previous statement[s] by Dr. Kerr

concerning the respondent’s asylum claim, compared to oneand-a-half pages of evaluation of the respondent’s medical

condition.” The IJ therefore concluded that, although Caushi

had scars on his chest, elbow, and knees, Dr. Kerr was in no

position to explain where they came from. The IJ also faulted

Dr. Kerr for reporting that the demonstration occurred on

September 14, 1998, when in fact it occurred on September 13.

As for Loreta Caushi’s testimony, the IJ found her “not

. . . at all credible.” The IJ commented that she appeared to have

“a selective memory” because “when she thought the answers to
8

certain questions would be helpful, she gave specific answers,

and other times, she did not answer questions accurately.” The

IJ did not give any examples in support of this conclusion. The

IJ further found that Caushi’s testimony that he had gone into

hiding in Bajram Curri was not credible because his Albanian

passport indicated trips to Macedonia and Bulgaria during that

time, and although Caushi testified that his father falsely placed

the visa stamps in his passport, he did not provide any indication

why his father would have done so. Finally, the IJ found that

Caushi’s father, “who had been a full-blown member of the

Democratic Party for many years,” remained in Albania and

there was no evidence that he suffered persecution as a result.

The IJ therefore concluded that the “isolated incidents” of

violence Caushi suffered did not amount to past persecution, and

there was no indication that he would be persecuted if he

returned to Albania. The IJ therefore denied his application for

asylum, withholding of removal, and relief under the CAT.

C. Proceedings Before the BIA

Caushi appealed to the BIA. He contended that the IJ

ignored the evidence that his brother-in-law and fellow DP

member, Dritan Azune, was murdered, and that “[t]he present

country conditions in Albania are dangerous and unstable”

because the Socialist Party remained in power. Caushi also

asserted that substantial evidence did not support the IJ’s

conclusion that his testimony regarding his injuries was

exaggerated, and that the IJ erred in concluding that the beatings
9

he sustained at the hands of police were simply a result of

aggressive policing in a riot situation and not persecution.

Caushi also faulted the IJ for relying on news reports from the

Internet that were not part of the record.

While his appeal was pending before the BIA, Caushi

filed a motion to reopen seeking a remand to the IJ in light of

newly uncovered evidence — to wit, that his sister Loreta had

been granted asylum in a separate proceeding after his

application was denied. Caushi contended that Loreta’s success

in obtaining asylum undercut the IJ’s determination that Loreta’s

testimony in his case was not credible. 

The BIA denied petitioner’s motion to reopen on

November 8, 2004, and affirmed the IJ’s decision. The BIA

concluded that Caushi had not provided any evidence regarding

the basis on which Loreta was granted asylum, and therefore

there was no evidence that “the facts in [her] claim were similar

to his.” The BIA also held that the IJ’s underlying

determination that Caushi had failed to establish evidence of

persecution was supported by the record, stating that “the

detention and mistreatment of [Caushi] in the course of civil

disturbances in 1998 does not constitute past persecution on

account of political opinion.” Caushi petitioned our Court for

review of the BIA’s decision.
10

While his petition for review was pending, Caushi filed

another motion to reopen with the BIA. He contended that,

although there was no transcript of the IJ’s decision in Loreta’s

case, her asylum application revealed that her claims “stem[]

directly from [my] activities.” Caushi indicated that his sister

had been raped by the police who came to their home looking

for him, an incident Loreta had not revealed prior to his hearing

because she was ashamed and suffered from post-traumatic

stress disorder. Caushi contended that Loreta was granted

asylum due to her being “beaten and raped because the

authorities were unable to locate [me] at their home. Had [I]

been home, she would most likely have been left alone and [I]

would have been harmed or killed.” Caushi thus argued that the

rape and post-traumatic stress disorder, coupled with the fact

that another IJ found Loreta credible, constituted newly

available evidence that significantly undercut the IJ’s conclusion

in his case that Loreta had a “selective memory” and therefore

was not credible. 

On June 1, 2005 the BIA denied as well this motion to

reopen. It stated that Loreta’s asylum application gave no

indication of the actual reasons why she was granted asylum. In

the absence of the IJ’s oral decision “or any other objective

evidence regarding the specifics of the basis of the Immigration

Judge’s grant of his sister’s asylum claim,” the BIA concluded

that it was unable to determine “whether there is a sufficient

nexus between the facts in [Caushi’s] case and the facts upon

which the Immigration Judge granted his sister asylum.”
11

Moreover, the BIA determined that the evidence of Loreta’s

rape and post-traumatic stress disorder was available to Caushi

at the time of his hearing because Loreta had been seeing a

psychotherapist for nearly four months and had disclosed the

relevant information to her doctor. It therefore concluded that

Loreta “could have raised the alleged fact that she was raped,

ashamed of her rape, and suffered from post-traumatic stress

disorder either before the Immigration Judge [in her brother’s

case] or in [his] Notice of Appeal [to the BIA].” Caushi

petitioned our Court for review of the BIA’s denial of this

motion to reopen. We consolidated Caushi’s petitions pursuant

to 8 U.S.C. § 1252(b)(6) .

D. Petitions for Review

Caushi’s petitions for review allege error on five

grounds. His first petition alleges that the BIA erred in finding

that substantial evidence supported the IJ’s determination that he

had not been persecuted or had a well-founded fear of

persecution, and that the BIA erred in not remanding his case to

the IJ in light of his sister’s subsequent success in gaining

asylum. His second petition (which largely subsumes the

second claim of error in his first petition) contends that the

BIA’s conclusion that he did not prove that Loreta’s asylum

claim was factually related to his own was error; that the BIA

further erred in holding that the evidence of Loreta’s rape was

available to Caushi prior to his hearing; and that, in any event,

the grant of asylum to Loreta and her post-traumatic stress
 Caushi has not appealed the IJ’s denial of his request 2

for relief under the CAT. 

12

disorder are newly available evidence that contradict the IJ’s

conclusion that she was not credible. For the reasons stated

below, we grant the first petition and deny the second.2

II. Jurisdiction and Standard of Review

We have jurisdiction over Caushi’s petitions under 8

U.S.C. § 1252, which grants federal courts of appeals

jurisdiction to review final orders of the BIA. We review the

BIA’s affirmance of an IJ’s factual findings, including its

determination of whether an alien was subject to persecution or

has a well-founded fear of persecution, under a substantial

evidence standard. See, e.g., Shardar v. Ashcroft, 382 F.3d 318,

323 (3d Cir. 2004). The BIA’s affirmance of the IJ’s credibility

determinations is also reviewed under this standard. See Cao v.

Att’y Gen., 407 F.3d 146, 152 (3d Cir. 2005) (“The credibility

determination, like all IJ factual findings, is subject to

substantial evidence review.”). In conducting this analysis we

consider the record as a whole and shall reverse only if “‘[a]

reasonable adjudicator would be compelled to conclude to the

contrary.’” Shardar, 382 F.3d at 323 (quoting 8 U.S.C.

§ 1252(b)(4)(B)). We review the BIA’s denial of a motion to

reopen for abuse of discretion, Lu v. Ashcroft, 259 F.3d 127,

131 (3d Cir. 2001), and review its underlying factual

conclusions related to the motion for substantial evidence.
 Insofar as Caushi’s first petition challenges the BIA’s 3

denial of his motion to reopen and remand, we address that issue

in Part IV below. 

13

Sevoian v. Ashcroft, 290 F.3d 166, 170 (3d Cir. 2002). The

BIA’s denial of a motion to reopen may only be reversed if it is

“arbitrary, irrational, or contrary to law.” Id. at 174 (internal

quotation marks omitted). 

III. First Petition for Review

We begin with Caushi’s first petition for review. In 3

deciding an alien’s asylum application, an IJ must consider the

complete record, analyzing the evidence both pro and con. See

Gao v. Ashcroft, 299 F.3d 266, 277 (3d Cir. 2002). Although

our review of an IJ’s credibility determinations is deferential,

“that deference is expressly conditioned on support in the

record, and [d]eference is not due where findings and

conclusions are based on inferences or presumptions that are not

reasonably grounded in the record.” Dia v. Ashcroft, 353 F.3d

228, 249 (3d Cir. 2003) (en banc) (citation and internal

quotation marks omitted; alteration in original). An IJ must

support his factual determinations with “specific, cogent”

reasons such that his conclusions “flow in a reasoned way from

the evidence of record and are [not] arbitrary and conjectural in

nature.” Id. at 250. Failure to do so “does not pass muster

under the substantial evidence rubric.” Id. at 254 (citing

Mulanga v. Ashcroft, 349 F.3d 123 (3d Cir. 2003)).
14

A. IJ’s Factual Conclusions Related to Persecution

We have several problems with the IJ’s factual

conclusions in this case. First, he found that the adverse

treatment Caushi claimed to have suffered did not amount to

past persecution and did not create a well-founded fear of future

persecution. In reaching this conclusion, the IJ did not even

mention the testimony that Caushi’s brother-in-law, with whom

Caushi was arrested at a DP rally in May 1998, was shot to

death in front of the police station minutes after being released

from custody, and the further testimony of Caushi and his sister

that police officers essentially claimed responsibility for the

murder when they raided the Caushis’ house looking for him.

The IJ also believed that Caushi had been beaten at the

September 1998 demonstration, but rejected his testimony that

he was also slashed because, despite the fact that Caushi’s arms

and torso are covered with scars, the report from the hospital in

Albania where he was taken following the beating did not

mention any cuts. The IJ did not address Caushi’s explanation

for this omission (i.e., that medical documents in Albania “are

not . . . very clear in what they state”) or his testimony that, in

any event, his cuts were treated by a private doctor at his sister’s

home and not at the hospital. See, e.g., Campos-Sanchez v.

INS, 164 F.3d 448, 450 (9th Cir. 1999) (requiring the BIA to

consider an alien’s explanations for any perceived

inconsistencies in his testimony before deciding upon the alien’s

credibility). The IJ also did not address the fact that Dr. Kerr

noted that Caushi had several “well healed” scars on his body
 Although we agree with the IJ’s decision to reject Dr. 4

Kerr’s inappropriate conclusions regarding Caushi’s factual

background, we do not believe this necessarily renders her

medical examination not credible, especially since Caushi

provided photographs of his scars so that the IJ could inspect the

physical evidence for himself. Also of concern is the great

weight the IJ gave to the fact that Dr. Kerr listed the date of the

September 1998 DP demonstration as September 14 rather than

September 13 in making his credibility determination. Dr.

Kerr’s error is, at most, a minor inconsistency that is irrelevant

to the substance of Caushi’s asylum claim, and therefore should

not form a basis for an adverse credibility determination. See

Berishaj v. Ashcroft, 378 F.3d 314, 323 (3d Cir. 2004). 

15

and prosthetic front teeth, even though both observations are

consistent with Caushi’s description of his injuries.4

We are also puzzled by the IJ’s finding that Caushi “did

nothing that would bring himself to the attention of the

authorities.” The IJ supported this conclusion by noting that

Caushi “was a member of the youth branch of the Democratic

Party, [and] was not a full-blown member.” The IJ’s finding is

at odds with his determination that Caushi’s father was an active

member of the DP and that Caushi was arrested in May 1998

because of his affiliation with that party. Moreover, the

conclusion is belied by the fact (unmentioned by the IJ) that

Caushi’s brother-in-law was a high-level DP member who was

murdered immediately after he was released from police

custody, and the unrebutted testimony of Caushi and his sister
16

that the police came to their house looking for him and assaulted

his family shortly after his participation in the September 1998

demonstration at which he was beaten. In short, the IJ’s

conclusion that Caushi was somehow unknown to the police

(despite the fact his family was well known and Caushi himself

had been arrested) is unsupported by the record. 

We believe these omissions from the IJ’s factual

discussion are significant because the omitted evidence tends to

establish past persecution. We have defined persecution as

“threats to life, confinement, torture, and economic restrictions

so severe that they constitute a threat to life or freedom.” See Li

v. Att’y Gen., 400 F.3d 157, 167 (3d Cir. 2005) (citation and

internal quotation marks omitted). The conduct Caushi alleges

— the murder of his brother-in-law, the beating and alleged

slashing at the hands of police, the threats against his family,

and the violence, intimidation, and assassinations directed at the

DP — tends to establish a threat to life and freedom. The IJ’s

failure to give specific, cogent reasons for rejecting these

allegations in light of all of the record evidence falls

significantly short of the requirement that his factual findings be

supported by substantial evidence.

B. IJ’s Determination That Loreta Caushi Was Not Credible

Next, we consider the IJ’s determination that Caushi’s

sister Loreta was “not . . . at all credible” when she testified in

support of her brother’s allegations of persecution. The IJ’s
17

entire analysis of her testimony is as follows: “I did not find her

testimony at all credible. I thought that she had a selective

memory. When she thought the answers to certain questions

would be helpful, she gave specific answers, and other times,

she did not answer questions accurately.” The IJ did not point

to any specific instances in which Loreta gave inaccurate or

selective testimony; indeed, he did not provide any explanation

of how he arrived at this conclusion. As we stated above, it is

well established that an IJ must support his credibility

determinations with record evidence and provide “specific,

cogent” reasons for his conclusions sufficient to demonstrate

that they are not “arbitrary and conjectural in nature.” Dia, 353

F.3d at 250. By not citing a single instance in which Loreta’s

testimony was inaccurate or selective, the IJ did not satisfy this

standard. 

Moreover, our review of Loreta’s testimony reveals very

few instances in which her statements were demonstrably

inaccurate, vague, or nonresponsive. For the most part, her

testimony was clear and consistent, and corroborated her

brother’s account. We note only three instances where the judge

expressed dissatisfaction with Loreta’s responsiveness:

[IJ, regarding the May 1998

demonstration:] Did you see Robert

and your brother-in-law being

arrested?
18

[Loreta:] No.

[IJ:] When Robert was

released, he told you he had been

arrested? Ms. Caushi, I’m sorry, I

just want you to answer the

questions as directly as possible.

When Robert was released, did he

tell you he had been arrested?

[Loreta:] Yes.

[IJ:] How long did he tell

you he had been detained?

[Loreta:] He told me he was

detained for like three hours. 

. . . 

[Loreta, regarding another

demonstration in July 1998:] I

remember that on the 4th of July,

my brother participated [i]n a rally

of the Democratic Party, and there

was an assassination from the

Socialist Party that day.

[IJ:] What year?
19

[Loreta:] ‘98. About 150

bullets were shot, and Azem

Hajdari [a DP leader] was there,

and the police shot over the people.

[IJ:] What was, what was the

date again?

[Loreta:] It was 4th of July.

[IJ:] July 4, 1998? Ms.

Caushi, you have to try to just

answer the question as directly as

possible. The incident you’re

talking about occurred on July 4,

1998, yes or no?

[Loreta:] Yes.

[IJ:] Was your brother hurt

on July 4, 1998, or arrested, your

brother, Robert?

[Loreta:] No, nothing

happened. 

. . . 

[IJ, regarding the police
20

search for Caushi at his family’s

house:] Did the police say why they

wanted to talk to your brother,

Robert? Yes or no.

[Loreta:] Yes.

[IJ:] What did they say?

Why did they say they wanted to

talk to Robert?

[Loreta:] Because the police

in Albania, they knew that my

brother was a member of the Youth

Forum for [the] Democratic Party,

and he support[ed] Azem Hajdari in

the Democratic Party, so they tried

the best they could to stop this, this

wave of new Democrats.

[IJ:] Is that what the police

said? Is that what they said when

they came to your house several

times?

[Loreta:] No, they didn’t say

that, but they said to my father that

we want your son.
21

[IJ:] Did they say, did they

say — listen to my words. Did they

say why they wanted to talk to your

brother?

[Loreta:] They never would

tell us the reason why they wanted

to talk to my brother, but I

remember them telling to my father

in front of me and my mother that if

you don’t tell us where your son is,

then we will find him and we will

kill him the same way we killed

your brother-in-law.

With respect to the exchanges related to the May and July

demonstrations, we are perplexed by the IJ’s apparent

displeasure with Loreta’s responses because the transcript

reveals that Loreta directly answered all of the IJ’s questions.

As for the exchange regarding the police officers’ search for

Caushi, we agree that Loreta did not directly answer the IJ’s

question, “Why did [the police] say they wanted to talk to

Robert?”, but rather gave her view of why the police were

interested in her brother. When the IJ repeated his question,

however, Loreta directly answered it and stated that the police

never said why they were looking for her brother. Especially

since Loreta was testifying via an interpreter, and therefore it is

unsurprising that some questions may have been misunderstood
22

and repetitions may have been necessary, we do not believe

Loreta’s failure to answer directly the IJ’s question on the first

try is sufficient for a reasonable adjudicator to conclude that she

was not credible.

The Government places particular reliance on another

exchange that occurred during cross-examination as evidence

that Loreta’s testimony was evasive and inaccurate:

[Government:] Do, do you

have an Albanian passport?

[Loreta:] Yes. That’s the

one I’ve traveled with.

[Government:] Okay. When

did you get it?

[Loreta:] It’s my passport.

[Government:] When did

you get it?

[Loreta:] My, my father

obtained the passport for me and

some, some relatives of my sister

managed to get the visa.
23

[Government:] One more

time. When did you get the

passport?

[Loreta:] The date I came

here, 9:00 in the morning, was the

day that I obtained the passport.

[Government:] How did you

get it?

[Loreta:] On June, June 5.

[Government, to the IJ:] I

don’t know how to ask these

questions any more simply.

[IJ, to Loreta:] Did you get

the Albanian passport while you

were here in the United States?

[Loreta:] In Albania.

[IJ:] Do you remember the

date that you got your Albanian

passport, what year?

[Loreta:] I don’t remember.
24

I’m sorry, I don’t remember.

[IJ:] You don’t remember —

[Loreta:] It’s [a] five-year

passport. It’s a five-year passport.

I don’t know when it expires. 

[IJ:] I’m asking you when it

was issued, what year it was issued

to you, ‘98, ‘99, 2000, 2001; what

year was the passport issued to

you?

[Loreta:] It’s difficult to

remember when it was issued, ‘93,

‘94. I’m not sure. 

We agree with the Government that Loreta’s responses

in this exchange were not initially responsive to the questions

asked. Nonetheless, Loreta answered the questions upon

rephrasing by the IJ. In any event, Loreta’s failure to recall the

precise date on which her passport was issued is, at best,

tangential to her brother’s asylum claim. We have stated that

“minor inconsistencies and minor admissions that reveal nothing

about an asylum applicant’s fear for his safety are not an

adequate basis for an adverse credibility finding. [Rather,] [t]he

discrepancies must involve the heart of the asylum claim.”
The REAL ID Act of 2005 changes the standards 5

governing credibility determinations, stating that such

determinations may be made “without regard to whether an

inconsistency, inaccuracy, or falsehood goes to the heart of the

applicant's claim.” Pub. L. 109-13, div. B, § 101(a)(3), 119 Stat.

231, 303 (to be codified at 8 U.S.C. § 1158(b)(1)(B)(iii)). We

note, however, that this provision only applies to aliens who

applied for asylum, withholding of removal, or other relief after

May 11, 2005, the effective date of the Act. See id. § 101(h)(2),

119 Stat. at 305. Since Caushi applied for asylum in January

2001, this provision is inapplicable to our review of his claim.

25

Berishaj v. Ashcroft, 378 F.3d 314, 323 (3d Cir. 2004) (citation

and internal quotation marks omitted). We are not persuaded 5

that Loreta’s failure to recall the date her passport was issued,

and her initial failure to answer directly the Government’s

questions regarding the passport, reveal anything about the

credibility of her testimony regarding her brother’s treatment. 

C. Summary 

We grant Caushi’s first petition for review, vacate the

BIA’s November 8, 2004 order insofar as it affirmed the IJ’s

oral decision, and remand this case to the BIA so that it can refer

the case to the IJ for further proceedings consistent with this

opinion. We base this decision on two sets of errors. First, the

IJ’s factual determinations related to Caushi’s eligibility for

asylum are not supported by substantial evidence. As noted, in
26

his oral decision the IJ never mentioned that Caushi’s brotherin-law, a fellow member of the DP with whom Caushi was

arrested in May 1998, was murdered immediately after he was

released from police custody. In addition, although the IJ

believed Caushi’s testimony that he had been beaten by police

at a rally in September 1998, the IJ rejected his testimony that he

had been slashed despite the fact that Caushi’s arms and torso

are covered with scars and he has prosthetic front teeth, which

are consistent with Caushi’s description of his injuries. The IJ

relied on the fact that the report from the hospital in Albania

where Caushi was taken following the beating did not mention

any cuts, but the IJ did not mention Caushi’s explanation for this

omission (i.e., that medical documents in Albania “are not

. . . very clear in what they state”) or his testimony that, in any

event, his cuts were treated by a private doctor at his sister’s

home and not at the hospital. Moreover, the IJ’s conclusion that

Caushi “did nothing that would bring himself to the attention of

the authorities” because he “was a member of the youth branch

of the Democratic Party, [and] was not a full-blown member” is

unsupported by the record and, indeed, is contradicted by the

fact that his family was well known to the police because of

Caushi’s father’s and brother-in-law’s activities in the DP and

the fact that Caushi himself had been arrested.

Second, the IJ’s conclusion that Loreta Caushi’s

testimony at her brother’s hearing was selective and inaccurate

(and therefore not credible) is unsupported by any explanation

or citation to specific instances where her testimony was
 The Government places particular reliance on the U.S. 6

State Department Profile of Asylum Claims for Albania,

produced in May 2001 for use by the Executive Office of

Immigration Review. This report makes several broad

statements, including that “[t]here is virtually no evidence that

individuals are targeted for mistreatment on political grounds,”

“[t]here is no post-Communist tradition of retribution against

political leaders and few instances thereof,” and “[t]he

Government has neither the means nor the will to carry out

systematic persecution.” We note, however, that these

conclusions are at odds with the State Department’s 2000 and

2001 Country Reports for Albania (which we have described as

“the ‘most appropriate’ and ‘perhaps best resource’ on country

conditions,” Ambartsoumian v. Ashcroft, 388 F.3d 85, 89 (3d

Cir. 2004) (quoting Lal v. INS, 255 F.3d 998, 1023 (9th Cir.

2001))), which cite numerous allegations of violence and

27

deficient. Moreover, we cannot identify a single instance where

Loreta’s testimony about events at the heart of her brother’s

asylum claim was demonstrably inaccurate, selective, or evasive.

Thus, we conclude that the IJ’s adverse credibility determination

is not supported by substantial evidence.

We acknowledge, of course, that the record contains

some evidence that weighs against Caushi’s credibility (such as

the fact his parents remain in Albania or the inconsistency

between his alleged flight to Bajram Curri and the visa stamps

in his passport indicating travel to Macedonia and Bulgaria

during that time). We express no opinion on how this evidence 6
intimidation directed at DP members that often went

uninvestigated and unpunished. We are not, therefore,

persuaded that the Asylum Profile is proof that Caushi’s claims

lack merit. 

 We also note that, although an IJ may introduce 7

evidence into the record, see Mulanga, 349 F.3d at 135 (quoting

In re S-M-J-, 21 I. & N. Dec. 722, 726 (B.I.A. 1997)), “[when]

the Immigration Judge relies on the country conditions in

adjudicating the alien’s case, the source of the Immigration

Judge's knowledge of the particular country must be made part

of the record,” S-M-J-, 21 I. & N. Dec. at 727. Here, the IJ

relied on Internet articles from CNN and the BBC as evidence

of the events that took place in Tirana on September 13, 1998.

Although the IJ may introduce evidence sua sponte, and

therefore the IJ’s reliance on these articles was not error, we

agree with Caushi that the IJ inappropriately neglected to place

the complete articles in the record. If, upon remand, the BIA

wishes to rely on these articles or any other evidence, such

evidence must be placed in the record.

28

should influence Caushi’s eligibility for asylum because such a

determination must be made by the immigration court in the first

instance. See INS v. Ventura, 537 U.S. 12, 16-17 (2002). On

remand, the IJ must carefully examine the complete record in a

manner consistent with this opinion and determine whether, on

balance, the evidence supports Caushi’s eligibility for asylum.7
29

IV. Second Petition for Review

We turn now to Caushi’s second petition for review, and

consider his first petition insofar as he contends that the BIA

erred in denying his motion to reopen and remand. A motion to

reopen may be denied if the BIA determines that: (1) the alien

has not established a prima facie case for the relief sought; (2)

the alien “has not introduced previously unavailable, material

evidence”; or (3) in the case of discretionary relief (such as

asylum), the alien would not be entitled to relief even if the

motion was granted. INS v. Abudu, 485 U.S. 94, 104-05

(1988); Sevoian, 290 F.3d at 169-70; see also 8 C.F.R.

§ 1003.2(c)(1) (“A motion to reopen proceedings shall not be

granted unless it appears to the Board that evidence sought to be

offered is material and was not available and could not have

been discovered or presented at the former hearing . . . .”). The

BIA denied Caushi’s motions to reopen because he did not

prove a nexus between his claim and Loreta’s. The BIA also

denied the first motion because Caushi did not address the

reasons why the IJ in his case found Loreta not credible, and

denied the second motion because it did not present any

evidence that was not available to him at the time of his hearing.

We do not believe the BIA abused its discretion in

denying these motions. In his first motion to reopen, which

sought a remand to the IJ in light of Loreta’s subsequent success

in obtaining asylum, Caushi did not discuss any of the reasons

why Loreta was granted asylum and therefore failed to establish
30

that her subsequent case had any bearing on the IJ’s conclusion

in Caushi’s case that Loreta lacked credibility. Indeed, the only

evidence accompanying Caushi’s motion was an affidavit from

his attorney stating conclusorily that Loreta’s grant of asylum

“clearly contradicts the finding of the other Immigration Judge

who did not find her to be credible.” The motion offered no

evidence that Loreta obtained asylum based on the same

testimony she gave before the IJ in Caushi’s case; indeed, there

was no indication whatever that Loreta gained asylum for

reasons that were at all related to her brother’s claim. The BIA

rightly concluded that the mere fact Loreta was granted asylum

after testifying at her brother’s hearing was not, without more,

evidence that the IJ’s adverse credibility determination in her

brother’s case was erroneous. 

Caushi attempted to remedy these defects in his second

motion to reopen. He attached several exhibits, including his

sister’s asylum application; an affidavit from his sister’s doctor

stating that Loreta has post-traumatic stress disorder; and an

affidavit from Loreta stating that she did not tell her brother

about the rape because she was “ashamed and traumatized,” and

did not testify about it at his hearing because she was not asked,

but was able to testify about it at her own asylum hearing and

was “now able to tell the entire story” and “would be more than

willing to testify on Robert’s behalf” if he was granted a new

hearing.
31

A. The Rape

First, Caushi contends that the police officers who came

to his family’s home looking for him raped Loreta, and this

tends to establish that he and his family have suffered past

persecution and have a well-founded fear of future persecution.

We note, however, that Caushi certainly knew about the rape

well in advance of his April 2002 hearing before the IJ. His

elder sister, Andoneta Zherka, submitted an affidavit in support

of his asylum application in December 2001 stating that Loreta

had been raped by a police officer who came looking for Caushi,

and Caushi himself mentioned in his testimony before the IJ that

he heard “from my youngest sister who got raped . . . that a lot

of things happened with my family.” The rape was therefore

known to Caushi at the time of his hearing and the BIA correctly

determined that the evidence “could . . . have been discovered

or presented at the former hearing,” 8 C.F.R. § 1003.2(c)(1), and

was therefore not properly raised in a motion to reopen. 

B. Post-Traumatic Stress Disorder

Petitioner also contends that the diagnosis of Loreta’s

post-traumatic stress disorder is newly available evidence that

bears on the credibility of her testimony before the IJ in his case

— specifically, her “selective memory” — and therefore seeks

reopening so that the IJ may consider this new evidence. The

BIA rejected this argument, holding that Loreta’s doctor was

treating her for post-traumatic stress disorder at the time of her
32

brother’s hearing and therefore she could have discussed it in

her testimony. While we are skeptical of this reasoning

(primarily because there is no evidence that Caushi had any

reason to know of the private conversations between his sister

and her doctor), we have no cause to reach this issue. We have

already held that the IJ’s adverse credibility determination with

respect to Loreta’s testimony is not supported by substantial

evidence, and therefore Caushi has no need to introduce the

post-traumatic stress disorder diagnosis as an explanation for

Loreta’s supposed selective memory.

C. Subsequent Grant of Asylum

We also find it unnecessary to consider whether Caushi’s

case should be reopened so that Loreta’s asylum grant can be

considered by the IJ in assessing her credibility. Again, since

we have found that the IJ’s adverse credibility determination is

not supported by substantial evidence, we decline to address this

issue.

V. Conclusion

For the reasons stated above, we grant Caushi’s first

petition for review, vacate the BIA’s November 8, 2004 order

insofar as it affirmed the IJ’s oral decision, and remand this case

to the BIA with instructions to refer the case to the IJ for further

proceedings consistent with this opinion. We deny the second

petition for review.