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Feto v. Gonzales

January 4, 2006


On Petition for Review of an Order of the Board of Immigration Appeals. Nos. A79-602-742, A79-602-741, A79-602-740 & A79-602-739.

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

ARGUED MAY 6, 2005

Before KANNE, ROVNER, and WOOD, Circuit Judges.

Nderim, Matilda, Endri, and Luljeta Feto, citizens of Albania, arrived in Detroit, Michigan, via Mexico sometime around December 17, 2000, where, as the immigration euphemism goes, they entered the United States "without inspection." About a year later, Nderim Feto filed a request for asylum on behalf of himself and his family, claiming that he was persecuted because he is a kulak (a prosperous farmer) and because of his participation with the Albanian Democratic Party, an opposition political party. His petition was denied and he received a Notice to Appear on December 26, 2001, charging him with removability. At the removal hearing held on January 16, 2002, Feto conceded removability and requested asylum or alternatively relief under the Convention Against Torture (CAT). The Immigration Judge (IJ) denied Feto's application because he found that Feto had not suffered past persecution. The IJ also made an adverse credibility finding based on conflicts between Feto's testimony at his asylum hearing and his prior written statement. The Board of Immigration Appeals (BIA) affirmed the IJ's decision.

In this petition for review, Feto challenges the denial of asylum and raises a due process claim in connection with the IJ's failure to advise him about his eligibility for voluntary departure and certain other rights. We conclude that the IJ's rulings were supported by substantial evidence and therefore deny the petition for review.


On August 28, 2002, at his asylum hearing, Feto testified that he was persecuted by the Albanian communist regime, which was in power from 1945 to 1990. The communists targeted Feto's family because they were prosperous, landowning farmers. The government confiscated his family's land and forced them to work as farmers on government tracts. At one point, the government forcibly relocated him and his mother to a remote village, in order to punish them after his uncle fled Albania. It prohibited Feto from joining youth organizations, knowing that this would stigmatize him. During his service in the Albanian army from 1979 to 1981, Feto was assigned to a low-level labor unit and was not entitled to have a gun issued to him.

After the collapse of the communist government in 1990, Feto joined the Democratic Party in the belief or hope that the party would return his family's land to them. He participated in several political protests in the late 1990s and early 2000s, some of which were related to the return of land. Feto provided detailed descriptions of several protests and his arrests in a lengthy written statement that he included with his asylum application; he also testified about them at his hearing. Notably, Feto stated that in 1998 he was arrested and held by the police from January 31 to March 15. In June of 2000, he said that he was one of about 30 individuals who were taken by the police from a Democratic Party rally and beaten in a van. The IJ denied Feto's application for two reasons: first, that the credible events did not amount to past persecution, and second, that his testimony "was generally vague, directly inconsistent with his written application, and . . . appears to have been either fabricated or exaggerated."

The IJ found that Feto's hardship under the communist regime, including his alleged one-month period of detention in 1978, did not amount to past persecution. As the IJ explained, "While it may be true that the respondent's family was forced to perform farming and their land was taken away, I do not find that this treatment rises to the level of persecution in the past." In addition, the IJ found that Feto's testimony was inconsistent with the State Department's Country Profile dated May 2001, which explains that "[w]ith the Socialist Party currently leading a coalition government, it is highly unlikely in today's circumstances that many applicants will have credible claims to political persecution."

With respect to credibility, the IJ made several specific findings. For example, he noted that Feto was unable to recall specific incidents mentioned in his written statement and that his testimony conflicted significantly with the earlier written submission. One discrepancy-perhaps minor standing alone-concerned the purpose of the rally that led to Feto's one-month detention in March 1998. In his written statement, Feto stated that the demonstration was intended to protest the detention of opposition political party members. At his hearing, Feto shifted ground and claimed that the protest was over human rights and the return of seized land.

Most damaging to Feto's credibility, from the IJ's standpoint, were several discrepancies between Feto's written statement and his hearing testimony describing various detentions. Feto presented two versions of an incident that occurred on June 13, 2000, when he and a small group of organizers for the Democratic Alternative organized a rally that was broken up by the Albanian National Intelligence Service (SHIK). In version one, recounted in the written statement, Feto claimed that he was arrested and taken to a police station in Tirana, where he was beaten on his head by one agent while another held his hand behind his back. He claimed that he was told by the police that he would not live to see the election if he continued to campaign against the Socialist Party. He was released the following day. Version two came out at the hearing after Feto was asked if he had participated in activities with the Democratic Party or the Democratic Alternative for the 2000 elections. It was not until the questioner prompted him with his written statement that he said anything about the June 13 incident. At that point, he testified that he was put in a van with a few other demonstrators and beaten for 30 minutes and then let go. The IJ could not believe that Feto would fail to recall an ordeal as serious as the one laid out in version one and on this basis discounted Feto's overall credibility.

In another example, the IJ referred to Feto's claim in his written application that on July 25, 2000, Feto and some friends organized volunteers to deliver flyers to raise campaign contributions. Feto claimed that after the rally "[m]y friend and I were the last to leave . . . as we started to walk away A [sic] voice called out: 'I told you that you would not live to see the election' when several gun shots were fired. Although neither my friend or I were hit we both fell to the ground." When asked about this incident at the hearing, Feto could not recall any incidents that occurred after June 2000. Asked specifically whether he recalled the shooting incident mentioned in his written statement, Feto responded: "These things actually, this happened pretty often, not only this time." When the question was repeated, he responded simply that he did not recall this specific incident.

These were the discrepancies that prompted the IJ to conclude that "there [were] meaningful evidentiary gaps in the respondent's testimony, in his written application and the claim in its entirety that impeach the overall veracity of the story." The BIA affirmed the IJ's decision, issuing a one-paragraph order finding that Feto had failed to meet his burden of establishing "past persecution or a well-founded fear of persecution on account of one of the statutorily protected grounds, or that it is more ...

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