2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-10-2010

Kucana v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-2119

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2010

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 2010 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

"Kucana v. Atty Gen USA" (2010). 2010 Decisions. Paper 1750.

http://digitalcommons.law.villanova.edu/thirdcircuit_2010/1750
1

 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 09-2119

 

FATMIR KUCANA,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

 

On Petition for Review of an Order of the 

Board of Immigration Appeals

(Agency No. A099-928-290)

Immigration Judge: Honorable Eugene Pugliese

 

Submitted Pursuant to Third Circuit LAR 34.1(a)

March 10, 2010

Before: BARRY, STAPLETON and NYGAARD, Circuit Judges

(Opinion filed: March 10, 2010)

 

OPINION

 

PER CURIAM

Fatmir Kucana petitions for review of the Board of Immigration Appeals’ (“BIA”)

final order affirming the Immigration Judge’s (“IJ”) denial of Kucana’s application for
1

Under the Visa Waiver Program (“VWP”), aliens from certain countries are

permitted to visit the United States for ninety days or less without a visa. See 8 U.S.C. 

§ 1187(a); 8 C.F.R. § 217.2. An alien who applies for admission under the VWP agrees

to waive any challenge to his removal, except on the basis of an application for asylum,

withholding of removal, and/or relief under the CAT. See 8 U.S.C. § 1187(b); Shehu v.

Att’y Gen. of the U.S., 482 F.3d 652, 655 (3d Cir. 2007). VWP applicants who apply for

such relief are placed in “asylum-only” proceedings. Shehu, 482 F.3d at 655.

2

asylum, withholding of removal, and relief under the Convention Against Torture

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

I.

Kucana, a 23-year-old native and citizen of Albania, entered the United States in

October 2006. Although he attempted to enter pursuant to the Visa Waiver Program,1

 he

violated that program by using a fraudulent Italian passport. Shortly after his arrival, he

applied for asylum, withholding of removal, and relief under the CAT. As a result, he

was placed in “asylum-only” proceedings and referred to an IJ.

In a January 2008 hearing before the IJ, Kucana testified that two unidentified men

killed his father in Albania in June 1997. Kucana believed that these men committed the

killing because of his father’s support for Albania’s Democratic Party, and Kucana’s

great uncle testified that the men were members of Albania’s Socialist Party. After his

father’s passing, Kucana and his family moved to another part of Albania. In September

2006, Kucana returned to his former hometown to visit his father’s grave. On his way to

the cemetery, the district chairman of Albania’s Democratic Party approached Kucana. 

During their conversation, the chairman stated that he was a friend of Kucana’s father,
3

and he requested that Kucana meet with him the next day. Kucana agreed to do so.

When Kucana arrived at the meeting place the following day, two other

individuals were present on the chairman’s behalf. They told Kucana to avenge his

father’s death by placing explosives at the home of the Socialist Party leader. They

explained that someone would train him in explosives, and that he needed to carry out the

act as soon as possible. At the end of the meeting, Kucana told them that he needed to

visit his mother for a few days. They asked for his phone number, and told him that if

anyone learned of their plans, “this will cause the heads, your head or someone’s life, but

they meant [Kucana’s] life.” (Admin. Rec. at 91.) After the meeting, Kucana told his

mother what had transpired. She feared that he might now suffer harm at the hands of the

Socialist Party and the Democratic Party, so she advised him to leave the country. 

Kucana testified that, a few weeks before the immigration hearing, his mother called him

from Albania, informing him that she had received threatening phone calls from people

looking for him.

At the close of the hearing, the IJ denied Kucana’s application. With respect to

Kucana’s fear of the Socialist Party, the IJ stated that it “does not see sufficient evidence

in [the record] to establish that [Kucana’s] father was killed for political reasons or that

any of those political reasons are being imputed to [Kucana].” (Decision of IJ at 14.) 

Moreover, the IJ concluded that Kucana had not suffered any harm on account of his

father’s political opinion and that, because the Socialist Party was no longer in power,

there was even less likelihood that he would suffer such harm in the future. As for
4

Kucana’s fear of the Democratic Party, the IJ made an adverse credibility finding,

concluding that Kucana’s story about the proposed bombing was “highly implausible.” 

(Id. at 9.)

On appeal, the BIA affirmed the IJ’s decision without an opinion. Kucana now

petitions for review of the BIA’s decision.

II.

We have jurisdiction over this petition pursuant to 8 U.S.C. § 1252(a)(1). See

Shehu, 482 F.3d at 656. Because the BIA affirmed the IJ’s decision without an opinion,

we review the IJ’s decision. See Pierre v. Att’y Gen. of the U.S., 528 F.3d 180, 184 (3d

Cir. 2008) (en banc). 

We, like the Government, have difficulty making sense of the argument Kucana

presents in his brief. It appears that he is challenging only the IJ’s adverse credibility

finding. We review that finding for substantial evidence. See Butt v. Gonzales, 429 F.3d

430, 433 (3d Cir. 2005). Under this deferential standard of review, we must uphold the

IJ’s finding “unless the evidence not only supports a contrary conclusion, but compels it.” 

Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001).

Kucana has not shown that the substantial evidence compels vacating the IJ’s

adverse credibility determination. “[A]n adverse credibility determination may properly

be based on implausibility or inherent improbability,” provided that the record supports,

and there are “specific, cogent reasons” for, that determination. Berishaj v. Ashcroft, 378

F.3d 314, 324 (3d Cir. 2004). In this case, the IJ cogently explained the reasons for his
5

skepticism of Kucana’s story:

[W]e have a rather strange situation, where [Kucana] is

approached by people, nine or ten years after the fact, and

then asked to perform a terrorist act that he apparently did not

have any training for and was not, as was pointed out on

cross-examination, was not within the inner circle, by any

means, of the Democratic Party, and therefore, was not

necessarily someone who could be seen logically as someone

who would be trusted with such an extreme exercise, namely

bombing someone he did not know and whom he had no

personal vendetta against.

(Decision of IJ at 10.)

Additionally, the IJ highlighted that the background materials on Albania further

undermine the plausibility of Kucana’s story. For example, the U.S. State Department’s

2007 Country Report on Human Rights Practices for Albania states that “[t]here were no

reports that the government or its agents committed arbitrary or unlawful killings,” and

that “[t]here were no reports of politically motivated disappearances.” (Admin. Rec. at

119-20.) Moreover, the State Department’s March 2006 Profile of Asylum Claims and

Country Conditions for Albania states that “there have been no outbreaks of political

violence since 1998, and the available evidence suggests that neither the Government nor

the major political parties engage in policies of abuse or coercion against their political

opponents.” (Id. at 139.) Kucana has not identified any record evidence to the contrary.

In light of the above, we will deny Kucana’s petition for review.