Olsi Shkembi v. Atty Gen USA

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MANDATE ISSUED, filed.

Olsi Shkembi v. Atty Gen USA

Doc. 0 Att. 2

Case: 09-2912

Document: 003110213417

Page: 1

Date Filed: 07/12/2010

NOT PRECEDENTIAL U N IT E D STATES COURT OF APPEALS F O R THE THIRD CIRCUIT ___________ N o . 09-2912 ___________ O L S I SHKEMBI A/K/A ANDREA RUDISI, P e titio n e r v. A T T O R N E Y GENERAL OF THE UNITED STATES, R espondent ____________________________________ O n Petition for Review of an Order of the B o a rd of Immigration Appeals (A g e n c y No. A97-669-336) Im m ig ra tio n Judge: Honorable Roxanne C. Hladylowycz ____________________________________ S u b m itte d Pursuant to Third Circuit LAR 34.1(a) A p ril 7, 2010 B e f o re : AMBRO, CHAGARES and ALDISERT, Circuit Judges (O p in io n filed : May 20, 2010) ___________ O P IN IO N ___________ P E R CURIAM P e titio n e r Olsi Shkembi is a native and citizen of Albania who petitions for review

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Case: 09-2912

Document: 003110213417

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Date Filed: 07/12/2010

o f the Board of Immigration Appeals's ("BIA") final order of removal. For the following re a s o n s , we will deny the petition for review. I. S h k e m b i entered the United States in 2003. He later filed an application for a s ylu m , withholding of removal and relief under the United Nations Convention Against T o rtu re ("CAT"), predicated on his claim that he had been persecuted for his involvement in the Albanian Democratic Party ("the Party"). Shkembi joined the Youth Forum of the Party in 1996 and became a full member in 1998. As a member of the Youth Forum, Shkembi distributed literature and recruited s tu d e n ts to join the Party. In February 1998, police removed him and several other s tu d e n ts from their classroom. Shkembi was detained at the police station for several h o u rs , during which the police interrogated, hit, and shoved him, resulting in bruising on h is neck. Shkembi was released after Party members inquired about the detention. S h k e m b i's next confrontation with the police occurred a couple years later while h e served as an election monitor.1 The police took Shkembi and his uncle (who was a P a rty leader in their village and chair of the region's election committee) to the police s ta tio n and detained them for two days. Shkembi was interrogated, threatened, and

Shkembi testified that this event occurred in June 2000. His brief and the sta tem e n t attached to his asylum application refer to a similar incident that occurred in J u n e 2001. It is unclear whether these are two separate events or whether Shkembi m is s ta te d the date in his testimony. 2

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b e a ten , resulting in an injury to his shoulder which he treated with over-the-counter pain m e d ic a tio n . In 2002 and 2003 Shkembi worked on a camera crew for the Party's media o u trea ch program to help prepare for the 2003 local election. In June 2003, his uncle's sh o p was bulldozed by the tax police due to pressure from the Socialist Party. Despite th re a ts from the police, Shkembi filmed the bulldozing of the shop, which he asserted was b ro a d c as t on television.2 B e f o re and after the 2003 election, Shkembi continued to be pressured and h a ra s s e d by members of the Socialist Party, and he left Albania for the United States. Shkembi's uncle also left Albania and relocated to Greece. He has a brother who is a L e g a l Permanent Resident of the United States, and another relative (described alternately a s an uncle, grand-uncle, and great-uncle) who has been in the United States since 1968 a n d is a United States citizen.3 Shkembi's two sisters remain in Albania, and his older s is te r's affiliation with the Party has kept her from obtaining a scholarship and attending

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Shkembi submitted the DVD of the shop's destruction to the IJ.

S h k e m b i's great-uncle testified at the 2007 merits hearing. He visited A lb a n ia in 2002 and testified to an incident where Shkembi was driving him around and th e y were stopped by police and questioned. He stated that the Police made reference to S h k e m b i's Party membership. He also asserted that he did not believe that Shkembi w o u ld be safe in Albania. Shkembi's brother, who came to the United States in 1990, w as available to testify as to Shkembi's identity, but he did not do so because the IJ d e te rm in e d that identity was not an issue in this case. 3

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c o l l e g e .4 S h k e m b i fears returning to Albania because he believes that those who oppose the P a rty will kill him. Although the Party is now in control of the Albanian parliament, S h k e m b i asserted that the Socialist Party continues to exert regional influence and c o n tr o l. Despite some inconsistencies between Shkembi's testimony and his asylum ap p lica tio n , the IJ determined that he was credible. She nevertheless denied Shkembi's re q u e sts for relief because the incidents that he described did not rise to the level of p e rs e c u tio n . The IJ also concluded that Shkembi's fear of future persecution was u n re a so n a b le because, as described by the 2007 United States Department of State C o u n try Condition Report, conditions in Albania have changed significantly. The Party is n o w in control, and the Country Report states that political parties are operating without re stric tio n and that there have been no reports of the detention of political prisoners or p o litic a l disappearances. Further, the 2007 election was held by the international c o m m u n ity to be fair and organized. The IJ also stated that to the extent that Shkembi m a y be faced with regional harassment, there is nothing precluding him from moving to a n o th e r area of Albania.5
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Shkembi appeared to testify that his parents are United States citizens, but h is asylum application and his brief to this Court state that they remain in Albania. The B IA also noted that Shkembi's parents and sisters still reside in Albania. Shkembi's first merits hearing occurred in April 2007. Upon appeal, the B IA remanded the case to the IJ due to defective and missing tapes of the hearing and the 4
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T h e BIA affirmed, agreeing that Shkembi's "evidence regarding the arrests, th r e a ts , and minor physical abuse did not rise to the level of persecution." The BIA also n o te d that the Country Report "describes significant political change in Albania," and that th e continued presence of Shkembi's family members in Albania demonstrates that his " su b je c tiv e fear of returning to Albania is not objectively reasonable." Through counsel, Shkembi now petitions for review of the BIA's final order of re m o v a l. II We have jurisdiction to review the BIA's final order of removal under 8 U.S.C. § 1 2 5 2 (a ). The BIA's decision is reviewed under the substantial evidence standard and will b e upheld "unless the evidence not only supports a contrary conclusion, but compels it." Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir. 2003) (internal citation omitted). Shkembi asserts that his due process rights were violated because: (1) the IJ did n o t allow his brother to testify at his removal proceeding, and (2) the record of the p ro c e ed in g was deficient. Shkembi did not, however, raise these arguments before the B IA . Due process claims involving constitutional issues are generally not subject to the

IJ's oral decision. The BIA instructed the IJ to take the necessary steps to complete the tran script, including conducting a new hearing, if necessary. On May 7, 2008, the IJ c o n d u c te d a second hearing at which Shkembi testified. The IJ also incorporated the a v a ila b le transcripts from the first hearing into the record. Shkembi's great-uncle was a v a ilab le to testify, but Shkembi's attorney and the government stipulated that he would tes tify in accordance with his previous testimony and that it was unnecessary for him to te s tif y again. 5

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e x h a u stio n requirement, 8 U.S.C. § 1252(d)(1), because the BIA does not have authority to adjudicate such issues, Marrero v. I.N.S., 990 F.2d 772, 778 (3d Cir. 1993). Nevertheless, not all claims brought under the guise of due process fall outside the BIA's ju ris d ic tio n . See id.; Bonhometre v. Gonzales, 414 F.3d 442, 448 (3d Cir. 2005). As the G o v e rn m e n t argues, Shkembi's due process claims are, in actuality, claims of procedural e rro r that could have been raised before and adjudicated by the BIA. See Bonhometre, 4 1 4 F.3d at 448. Accordingly, the claims are unexhausted and this Court does not have th e authority to consider them. See Wu v. Att'y Gen., 571 F.3d 314, 317 (3d Cir. 2009). Substantial evidence also supports the BIA's decision that Shkembi failed to su sta in the burden of proof required for asylum eligibility. The police harassment, d e te n tio n s , and accompanying mistreatment and threats suffered by Shkembi--which o c c u rre d over the course of several years--do not rise to the level of persecution. See F a tin v. I.N.S., 12 F.3d 1233, 1240 (3d Cir. 1993) (defining persecution as "threats to life, c o n f in e m e n t, torture, and economic restrictions so severe that they constitute a threat to lif e or freedom"); cf. Toure v. Attorney Gen., 443 F.3d 310, 317-19 (3d Cir. 2006); Voci v . Gonzales, 409 F.3d 607, 615-16 (3d Cir. 2005).6 Further, as the BIA properly c o n c lu d e d , even if Shkembi had established past persecution, the record is sufficient to

We note that even if the destruction of Shkembi's uncle's store (which S h k e m b i witnessed) could be deemed to be persecution of the uncle, it does not constitute p ast persecution of Shkembi. See Wang v. Gonzales, 405 F.3d 134, 142-44 (3d Cir. 2 0 0 5 ).

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rebut the presumption that his life or freedom would be threatened in the future. See 8 C .F .R . § 208.13(b)(1). The 2007 Country Report indicates that the Party is now the m a jo rity party, that there have been no recent outbreaks of political violence, and that p o litica l parties are unrestricted. Despite Shkembi's argument to the contrary, this c o n stitu tes substantial evidence that supports the BIA's determination that Shkembi did n o t show that it was more likely than not that he would be persecuted upon returning to A lb a n ia . See Cuko v. Mukasey, 522 F.3d 32, 40 (1st Cir. 2008) (holding that reliance on co u n try reports was sufficient to rebut the presumption of well-founded fear of future p erse cu tio n based on support for Democratic Party of Albania). F in a lly, because the threshold for asylum is lower than those for withholding of re m o v a l, Shkembi cannot successfully challenge the dismissal of that claim. See Yu v. A tto rn e y Gen., 513 F.3d 346, 349 (3d Cir. 2008). To the extent that Shkembi challenges th e denial of his application for CAT relief, he fails to allege any incidents or likelihood o f torture as is required for protection under the CAT. See 8 C.F.R. 208.16 (c)(2). For the foregoing reasons, we deny Shkembi's petition for review.

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