Salaudin Makelara v. Atty Gen USA

Filing

MANDATE ISSUED, filed.

Salaudin Makelara v. Atty Gen USA

Doc. 0 Att. 1

Case: 09-1866

Document: 003110225174

Page: 1

Date Filed: 07/22/2010

NOT PRECEDENTIAL U N IT E D STATES COURT OF APPEALS F O R THE THIRD CIRCUIT ___________ N o . 09-1866 ___________ S A L A U D IN MAKELARA, P e titio n e r v. A T T O R N E Y GENERAL OF THE UNITED STATES, Respondent ____________________________________ O n Petition for Review of an Order of the B o a rd of Immigration Appeals (A g e n c y No. A99 836 635) Im m ig ratio n Judge: Honorable Margaret Reichenberg ____________________________________ S u b m itte d Pursuant to Third Circuit LAR 34.1(a) M a y 12, 2010 B e f o re : AMBRO, CHAGARES and ALDISERT, Circuit Judges (O p in io n filed: May 25, 2010) ___________ O P IN IO N ___________ P E R CURIAM S a lau d in Makelara petitions for review of a Board of Immigration Appeals (" B IA " ) decision dismissing his appeal of an Immigration Judge's ("IJ") decision denying h is applications for relief from removal. We will deny the petition for review.

Dockets.Justia.com

Case: 09-1866

Document: 003110225174

Page: 2

Date Filed: 07/22/2010

M a k e lar a is a native and citizen of Macedonia. He arrived in the United States in Jan u ary 2007. Shortly thereafter, a notice to appear was issued charging that Makelara w a s subject to removal because he entered the United States without having been a d m itte d or paroled. Through counsel, Makelara conceded that he was removable as c h a rg e d . He applied for asylum, withholding of removal, and protection under the C o n v en tio n Against Torture ("CAT"). M a k e la ra , who is Albanian, testified that he left Macedonia for political and e c o n o m ic reasons. He explained that he first had problems in Macedonia in 1994, when h e was a member of the Democratic Party of Prosperity ("PPD"). Makelara attended a P P D rally to protest discrimination against Albanians, which was broken up by police. W h e n Makelara returned home to the city of Dibar, he received a notice to report to the p o lice . Makelara stated that he went to the police station but refused to identify his f rie n d s, who were depicted in photographs shown to him by police. The police beat him w ith a rubber club on the ribs and back, held him overnight, and told him not to p a rtic ip a te in the party. Makelara received treatment from a private doctor and recovered in approximately two weeks. Makelara further testified that the police arrested and beat him on account of his p o litica l activities in 1997, 2002, 2003, and 2006. He stated that the police arrested him in 1997 at a PPD demonstration for the legalization of the University of Tetova. He was h e ld for one night, beaten with a rubber club, and needed almost two weeks to recover.

2

Case: 09-1866

Document: 003110225174

Page: 3

Date Filed: 07/22/2010

M a k e la ra stated that he was arrested three times in 2002 because he participated in PPD m e e tin g s and rallies seeking to officially register the University of Tetova. He stated that h e was detained for one night and beaten each time. Makelara also testified that he was arrested in March 2003 while leaving the h e a d q u arte rs for the Democratic Union for Integration, which he joined in 2003. During th is arrest, Makelara refused to answer questions and he was detained for 24 hours and b e a te n two or three times. Lastly, Makelara testified that the police arrested him, detained h im for one night, and beat him in August and September of 2006 in Dibar. Makelara a ls o stated that police stopped him sometimes two times a day because he was a member o f a political party and Albanian. Makelara believes that he will be imprisoned and p e rh a p s killed if he returns to Macedonia because he left the country and he has talked a b o u t the conditions there. Makelara stated that authorities questioned his wife on one o cc asio n after he left Dibar. M a k e la ra also testified to the difficulties he had finding employment. He stated th a t he worked for a company as an agronomist from 1979 until August of 1994 or 1995, w h e n the Macedonian government pressured his boss to lay him off. Makelara stated he w a s unable to find another full-time job because he is Albanian and that he worked in p a rt-tim e labor positions. The IJ found Makelara not credible based on inconsistencies between his written s ta te m e n t and testimony and the fact that his testimony changed during the course of the

3

Case: 09-1866

Document: 003110225174

Page: 4

Date Filed: 07/22/2010

h e a rin g . The IJ explained that Makelara initially testified that the 1994 demonstration w a s in the town of Goseivar, but his statement provided that the demonstration was in T e to v a . On cross-examination, Makelara stated that the demonstration in fact occurred in T e to v a . The IJ also noted inconsistencies between Makelara's accounts of the q u e stio n in g by police in 1994. The IJ explained that Makelara testified that the police h a d pictures of him with five friends and they wanted the names of his friends. Makerela's written statement, however, provides that the police showed him pictures of d o z e n s of groups of Albanians, that the police had written his name and the names of five o t h e r demonstrators on a photograph, and that the police asked him the names of the rest o f the demonstrators. T h e IJ also found inconsistent evidence concerning Makelara's job termination. The IJ explained that Makelara's statement provides he was fired two weeks after he was release d from detention in October 1994 due to pressure from the police. Makelara te stif ie d , however, that he worked until August 1995. Although Makelara later stated that h e may have been fired in August 1994, the IJ noted that would have been before he was a rre ste d . The IJ further noted that Makelara testified that he feared seeking medical tre a tm e n t after his 1997 arrest, but he could not explain why he had such a fear given that h e sought medical treatment after his 1994 arrest. T h e IJ also stated that Makelara testified that he was arrested three times in 2002, b u t his statement was best interpreted as providing that he was arrested three times after

4

Case: 09-1866

Document: 003110225174

Page: 5

Date Filed: 07/22/2010

th e year 2002 ­ in March 2003, August 2006, and September 2006. When his attorney a s k e d him about his 2002 arrests, Makelara was unable to provide any dates or details. The IJ concluded that Makelara did not establish that he was arrested in 2002. The IJ f u rth e r stated that, even if Makelara's statement could be construed as referring to three a rre sts in 2002, contrary to his testimony, he did not mention that he was beaten. T h e IJ also noted that Makelara testified that he became a member of the D e m o c r a tic Union for Integration in 2003, but when he was confronted with a m e m b e rsh ip card reflecting the year 2002, he stated he might have been a member in 2 0 0 2 . The IJ also found that Makelara did not provide reasonably available corroborating e v id e n c e or adequately explain the absence of such evidence. B ase d on the adverse credibility finding and lack of corroborative material, the IJ c o n c lu d e d that Makelara failed to meet his burden of proof on his applications for relief f ro m removal. The IJ recognized that the background materials reflected discrimination a g a in s t Albanians and that Makelara may have better economic opportunities here, but s h e stated that relief could not be granted on that basis. T h e BIA affirmed the IJ's adverse credibility finding and dismissed Makelara's a p p e al. The BIA stated that the IJ relied upon valid material inconsistencies and d iscrep an cies for which Makelara had not provided sufficient explanations. The BIA n o ted the IJ's reliance on the evidence regarding Makelara's arrests in 2002, including his o m iss io n in his statement that he was beaten during these arrests and his inability to recall

5

Case: 09-1866

Document: 003110225174

Page: 6

Date Filed: 07/22/2010

th e dates of these arrests on direct examination. The BIA also noted inconsistencies in th e evidence as to when Makelara's job was terminated, the inadequate explanation as to w h y he feared seeking medical treatment in 1997, and his failure to submit sufficient s u p p o rtin g documentation in light of the problems with his credibility. The BIA rejected Makelara's argument that the inconsistencies cited by the IJ were m in o r, explaining that, under the REAL ID Act, the IJ was permitted to rely on in c o n sis te n c ie s that did not go to the heart of the claim. The BIA further found that the inco n sisten cies in this case were central to Makelara's claim of mistreatment. The BIA c o n c lu d e d that Makelara had not satisfied his burden of proof for asylum, withholding of re m o v a l, or protection under the CAT. Finally, the BIA noted that Makelara's wife and th re e children still live in Macedonia and have not suffered any harm. This petition for re v ie w followed. W e review the agency's factual findings, including adverse credibility findings, for su b sta n tial evidence. Chen v. Att'y Gen., 434 F.3d 212, 216 (3d Cir. 2005). Under this s ta n d a rd of review, we will uphold the agency's findings unless a reasonable adjudicator w o u ld be compelled to conclude to the contrary. Id. When the BIA substantially relies o n an IJ's adverse credibility finding, we have jurisdiction to review both the BIA's and IJ's opinions. Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004). Makelara's a p p lica tio n s for relief are governed by the REAL ID Act, under which a credibility d e ter m in a tio n may be based on an alien's demeanor and responsiveness, the plausibility

6

Case: 09-1866

Document: 003110225174

Page: 7

Date Filed: 07/22/2010

o f the alien's account, and inconsistencies in the evidence, regardless of whether the inco n sisten cies go to the heart of the alien's claim. 8 U.S.C. § 1158(b)(1)(B)(iii). M a k e la ra first argues that his omission from his statement of the fact that he was b e a te n during his 2002 arrests is a trivial error and insufficient for the BIA to uphold an a d v e rs e credibility finding. The BIA's reliance on this omission, however, was just one o f several bases for upholding the adverse credibility finding. In addition, harm suffered b y Makelara on account of his political opinion is central to his claim of persecution. The B IA also noted that the IJ did not find convincing Makelara's explanation that he did not m en tio n the beatings because it is assumed that a person is beaten when arrested. The IJ e x p la in e d that Makelara had noted that he was beaten during his other arrests. Although M a k e la ra further stated that his beatings in 2002 were less severe than those in other ye a rs , the BIA did not err in relying on this omission where, as discussed below, he was a ls o unable to provide detailed testimony about his 2002 arrests. Makelara also challenges the BIA's reliance on the fact that he was unable to re c a ll the dates of his three arrests in 2002 on direct examination, but that he was able to p ro v id e specific months on cross-examination. Makelara argues that there is no in c o n sis te n c y and that his testimony is consistent with his written statement that he was a rre ste d three times in 2002. In referring to Makelara's inability to recall the dates of his a rre sts in 2002, the BIA cited pages eight to ten of the IJ's opinion, which reflects that the IJ found Makelara evasive and unable to provide details about the 2002 arrests. The IJ

7

Case: 09-1866

Document: 003110225174

Page: 8

Date Filed: 07/22/2010

u ltim ately concluded that Makelara was arrested three times after 2002, not in 2002. IJ D e c . at 18-19. The record reflects Makelara's inability to provide detailed testimony a b o u t arrests in 2002 and the BIA did not err in relying on this testimony to support an a d v e rs e credibility determination. M a k e la ra also challenges the BIA's reliance on his inability to explain why he f e a re d seeking medical treatment in 1997 when he had sought such treatment in 1994. Makelara argues that he explained that he did not want to be questioned about the cause o f his injuries like he was in 1994, that the BIA did not state why this explanation was im p la u sib le , and that the BIA did not state the significance of the implausibility. The re c o rd reflects that the IJ was probing the reasonableness of Makelara's testimony that he d id not to go to a doctor after his 1997 arrest because he was afraid. A.R. at 179-81. The IJ asked whether something had happened to him as a result of the doctor learning the c a u se of his injuries in 1994. Makelara's reply was non-responsive and he was unable to e x p la in why he did not want a doctor to know the cause of his injuries in 1997. We find n o error in the BIA's reliance on this line of questioning in assessing his credibility.1 F in a lly, Makelara argues that the BIA erred in affirming the denial of protection u n d e r the CAT based on the adverse credibility finding. Makelara is correct. See Zubeda

Makelara also challenges the IJ's reliance on inconsistencies between his testimony a n d written statement as to where the 1994 demonstration occurred and his accounts of q u e s tio n in g by police in 1994. These inconsistencies further support the adverse c re d ib ility finding. 8

1

Case: 09-1866

Document: 003110225174

Page: 9

Date Filed: 07/22/2010

v. Ashcroft, 333 F.3d 463, 476 (3d Cir. 2003) (stating alien's credibility for purposes of a sylu m and withholding of removal does not defeat the alien's ability to meet the burden o f proof under the CAT). However, unlike in Zubeda, Makelara has not pointed to any o b jec tiv e evidence suggesting that he would more likely than not be subjected to torture if re m o v e d to Macedonia. Makelara only points to parts of the record that might support an in f e re n c e that he will experience ethnic discrimination in Macedonia. Thus, relief is not w a rr a n te d . A c c o rd in g ly, we will deny the petition for review.

9