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Caushi v. Attorney General of the United States

January 23, 2006; as amended March 22, 2006


On Appeal from an Order entered by The Board of Immigration Appeals No. A78-821-176.

The opinion of the court was delivered by: Ambro, Circuit Judge


Submitted Under Third Circuit LAR 34.1(a) November 15, 2005

Before: BARRY and AMBRO, Circuit Judges. POLLAK,*fn1 District 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.

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")*fn2 served him with a notice to 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 hehad 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, 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 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 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 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 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 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 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.

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."

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 to8 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 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.*fn3

II. Jurisdiction and Standard of Review

We have jurisdiction over Caushi's petitions under8 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.

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." ...

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