Sokol Kroi v. U.S. Attorney General, (11th Cir. 2006)

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[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

F O R THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

AUG 24, 2006

THOMAS K. KAHN

N o . 06-10098

CLERK

N o n - A r g u m e n t Calendar

A g en cy No. A96-018-073

S O K O L KROI,

Petitioner-Appellant,

versus

U.S. ATTORNEY GENERAL,

Respondent-Appellee.

P etitio n for Review of a Decision of the

B o ard of Immigration Appeals

(A u g u st 24, 2006)

B efo re TJOFLAT, BARKETT and KRAVITCH, Circuit Judges.

P E R CURIAM:

S o k o l Kroi, a native and citizen of Albania, petitions this court for review of

th e final order of the Board of Immigration Appeals ("BIA"), affirming the im m ig ratio n judge's ("IJ") order of removal and denial of asylum relief based on an adverse credibility determination.1 Because we find that the IJ gave specific and co g en t reasons for the adverse credibility determination and the decision to deny relief is supported by substantial evidence, we deny the petition.

I. Background K ro i sought to enter the United States using false documents, and the I m m ig r a tio n and Naturalization Service ("INS")2 issued him a Notice to Appear, ch arg in g him with removability under INA §§ 212(a)(6)(C)(i) and (7)(A)(i)(I), 8 U .S .C . § 1182(a)(6)(C)(i) and (a)(7)(A)(i)(I). Upon Kroi's arrival in the United S ta te s, INS officials conducted a credible fear interview; they noted that Kroi had u s e d false documents in an attempt to gain admission but found credible fear based o n political opinion. Kroi refused to sign the interview forms, though he stated th at he understood the process and questions.

In his application for asylum and withholding of removal, Kroi stated that he h ad been persecuted based on his political opinion and involvement with the D e m o c r atic Party in Albania. He further stated that he had been arrested three tim e s and that members of the governing Socialist Party had burned down his store an d threatened to kidnap his son. Finally, Kroi indicated that he had been a party m em b er since 1994.

A t his hearing before the IJ, Kroi submitted several documents, including his b irth certificate, a Democratic Party membership card and a letter attesting to his m e m b e r sh ip , a document indicating that Kroi's grandfather had been a political p riso n er, newspaper articles and reports on conditions in Albania. The government su b m itted copies of the State Department Country Reports for 2002 and 2003.

K r o i then testified as follows: He lived with his wife and son in Albania, w h e r e he had been a member of the Democratic Party since 1992. He had been th r e ate n e d and persecuted by members of the Socialist Party since 1997, at which tim e members of the Party burned down his store. He was arrested three times by th e Secret Police, in 1998, 1999 and 2001. The 1998 arrest occurred while he was p articip atin g in a Democratic Party rally; he was detained for 24 hours, denied food an d water and beaten. In 1999, he was again arrested during a Democratic Party rally; this time he was beaten and warned to change his views. During the 2001 electio n s, he was arrested at a polling place while he was monitoring an election.

The men who arrested him showed their badges and then detained him for six or sev en hours, releasing him when the election was over. Additionally, prior to the 2 0 0 1 election, Kroi was again threatened, and when he refused to change his v iew s, he was beaten and left unconscious. Socialist Party members also th reaten ed to kidnap his son.

K r o i further testified that he left the Albania in December 2002. He had w an ted to leave earlier but did not have the means to do so. He traveled to the U n ited States via Greece and France. He did not seek asylum in France because he h a d no support system there; he has an aunt in the United States. Kroi testified that h e was afraid to return to Albania because the Socialists remain in power and, even if he relocated, the Socialists would find him, and his life would be in danger.

B e fo r e questioning Kroi, the government submitted a forensic report co n cern in g the documents Kroi had submitted. The report indicated that the d o c u m e n ts could not be authenticated and that two of the documents were not what th ey purported to be. On cross-examination, Kroi admitted that his wife and son, w h o remained behind in Albania, had not experienced any trouble since he left. He a ls o acknowledged that he had submitted false entry documents and that he had r ef u s ed to sign documents provided by customs officials, though he explained that h is refusal was based on a lack of understanding of the process and the interpreter.

He testified that he had not asked for a different interpreter because he feared that s u c h a request would make things worse.

T h e government asked Kroi why he had indicated in his application that he h ad joined the Democratic Party in 1994 and then testified that he had joined the P arty in 1992. Kroi explained that he had become more active in 1994. He also ex p lain ed that he continued to fear for his life because, although the current p resid en t was a member of the Democratic Party, the president has little power in A lb an ia because the prime minister controls the government.

T h e IJ denied relief, making an adverse credibility determination based on th e false documents, the confusion over dates and Kroi's lack of cooperation with au th o rities upon arrival. The IJ also found that Kroi had not established past p ersecu tio n or a well-founded fear of future persecution.

Kroi appealed to the BIA, challenging the IJ's reliance on the forensic rep o rt and the adverse credibility finding as well as the decision on the merits. The B IA summarily affirmed.

II. Discussion K ro i argues that the IJ erred in making an adverse credibility determination b e c au s e any inconsistency regarding the date he joined the Democratic Party was m in o r and not relevant. He further notes that the hearing transcript contains much in d e cip h e ra b le testimony, which he contends makes appellate review impossible.

K ro i asserts that the IJ improperly relied on the forensic report to discredit his testim o n y because the report failed to offer any conclusions about the validity of th e documents or explain how they were suspect, but rather indicated that the d o cu m en ts could not be verified. Kroi next argues that the IJ erred by requiring a u th e n tic atio n of his documents because unauthenticated documents may be used to support an asylum application. He notes that he received the forensic report on th e day of the hearing even though the report was completed some fifteen months earlier. He claims that, as a result, Kroi did not have sufficient time to challenge th e report, and the IJ's determination was made based on an incomplete record.

Finally, Kroi argues that he satisfied his burden of showing his eligibility for a sy lu m relief because he established past persecution based on his political o p in io n . Kroi contends that the government failed to rebut the presumption of f u tu r e persecution and that the IJ erred by considering whether he had safe haven in France. W h er e, as here, "a single member of the BIA summarily affirms the IJ's d e c is io n without an opinion, . . . the IJ's decision becomes the final removal order s u b je ct to review." Ruiz v. U.S. Attorney Gen., 440 F.3d 1247, 1254 (11th Cir. 2 0 0 6 ). "To the extent that the IJ's decision was based on a legal determination, our rev iew is de novo." Id. We review the IJ's factual determinations under the s u b s ta n tia l evidence test, and we "must affirm the [IJ's] decision if it is supported b y reasonable, substantial, and probative evidence on the record considered as a w h o le." Id. at 1254-55.

"U n d er the substantial evidence test, we review the record evidence in the lig h t most favorable to the agency's decision and draw all reasonable inferences in f av o r of that decision." Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2 0 0 4 ) (en banc). Thus, a finding of fact will be reversed "only when the record co m p els a reversal; the mere fact that the record may support a contrary conclusion is not enough to justify a reversal of the administrative findings." Id. A credibility d e te rm in a tio n is a factual finding and is reviewed under the substantial evidence test. Ruiz, 440 F.3d at 1255.

The Attorney General has discretion to grant asylum if an alien meets the IN A 's definition of "refugee," which covers: an y person who is outside any country of such person's nationality o r, in the case of a person having no nationality, is outside any co u n try in which such person last habitually resided, and who is u n ab le or unwilling to return to, and is unable or unwilling to avail h im self or herself of the protection of, that country because of p e r se cu tio n or a well-founded fear of persecution on account of race, relig io n , nationality, membership in a particular social group, or p o litical opinion. . . .

I N A § 101(a)(42)(A), 8U.S.C. § 1101(a)(42)(A). "The asylum applicant carries th e burden of proving statutory `refugee' status." D-Muhumed v. U.S. Attorney G en ., 388 F.3d 814, 818 (11th Cir. 2004). To meet this burden, the alien must e sta b lis h , with specific and credible evidence: (1) past persecution on account of a statu to rily listed factor or (2) a "well-founded fear" that a statutorily listed factor w ill cause future persecution. 8 C.F.R. § 208.13(a), (b); Al Najjar, 257 F.3d 1262, 1 2 8 7 (11th Cir. 2001).

If the alien establishes past persecution, the burden shifts to the government to prove by a preponderance of the evidence that (1) "[t]here has been a fu n d am en tal change in circumstances such that the [alien] no longer has a w ell-fo u n d ed fear of persecution [or (2) the alien] could avoid future persecution b y relocating to another part of the country. . . ." 8 C.F.R. § 208.13(b)(1)(i), (ii).

An adverse credibility determination may alone support the denial of asylum relief. Forgue v. U.S. Attorney Gen., 401 F.3d 1282, 1287 (11th Cir. 2005). If the IJ determines that the alien lacks credibility, the IJ must offer specific, cogent re as o n s for the finding; the burden then shifts to the alien to show that the IJ's cred ib ility determination was not based by "specific, cogent" reasons or was not su p p o rted by substantial evidence. Id.

H ere, the IJ determined that Kroi lacked credibility because: (a) his te stim o n y about when he joined the party was inconsistent; (b) he was u n c o o p e ra tiv e with officials upon arrival in the United States; and (c) he submitted n o corroborating evidence of his party membership because he did not confirm the au th en ticity of the documents he supplied to the IJ.

K ro i discusses the authenticity of the documents he submitted to the IJ in d etail. Even assuming that the documents Kroi supplied were valid, however, the reco rd does not compel the conclusion that Kroi's testimony was credible. First, K r o i provided no supporting evidence regarding his arrests in Albania or the fact th a t his business was burned down. Second, the country reports submitted to the IJ d o not dictate the conclusion that members of the Democratic Party in Albania are su b ject to persecution. Third, Kroi gave inconsistent answers on his asylum ap p lica tio n and in testimony regarding when he joined the Party. Finally, Kroi's lack of cooperation with officials upon arrival supports the IJ's adverse credibility fin d in g s. All of this, taken together, supports the IJ's conclusion that Kroi's testim o n y lacked credibility. F in ally, we note that portions of the hearing transcript before the IJ indicate th a t testimony was indiscernible. This does not, however, justify remand. Even w ith portions of the transcript missing, the record contains ample evidence ju stifyin g the IJ's adverse credibility determination.

A cco rd in g ly we DENY Kroi's petition for review.

1 Although Kroi sought withholding of removal before the IJ, he did not address the denial of that claim in his appeal to the BIA. Accordingly, we lack jurisdiction to consider the claim.

8 U.S.C. 1252(d)(1) ("A court may review a final order of removal only if . . . the alien has exhausted all administrative remedies available to the alien as of right. . . ."); FernandezBernal v. U.S. Att'y Gen., 257 F.3d 1304, 1317 n.13 (11th Cir. 2001) (holding that because the petitioner failed to raise an issue before the BIA, "we do not have jurisdiction to consider it here"). In addition, Kroi has not raised any argument on appeal challenging the denial of relief under the Convention Against Torture, and, therefore, he has abandoned that issue. Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226, 1228 (11th Cir. 2005).

2 The Homeland Security Act ("HSA"), effective November 25, 2002, created the Department of Homeland Security ("DHS") and abolished the INS. Pub. L. No. 107-296, 116 Stat. 2135. The HSA transferred INS functions to the DHS. Because this case was initiated by the INS while still in existence, we refer to the INS rather than the DHS as the relevant agency.

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