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Musollari v. Mukasey

September 19, 2008


Petition for Review of an Order of the Board of Immigration Appeals. Nos. A95-395-303 & A95-395-304.

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


Before EVANS, WILLIAMS, and SYKES,Circuit Judges.

Albert Musollari and his wife, Vergjinush, are natives and citizens of Albania who entered the United States in 2001 on visitor's visas. They overstayed and then sought asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). An Immigration Judge ("IJ") denied their application, finding Musollari's testimony incredible, and the Board of Immigration Appeals ("BIA") affirmed. Because the decisions by the IJ and the BIA are supported by substantial evidence and the record does not compel a contrary conclusion, we deny the Musollaris' petitions for review.

I. Background

The Musollaris came to the United States from Albania in January 2001 on visas that permitted them to stay for six months. They have two children: Kevin, who was born in Albania, was left behind and remains there; and David, who was born in the United States. The Musollaris did not return to Albania by their departure date and subsequently filed an application seeking asylum, with-holding of removal, and protection under the CAT. The*fn1 petition was rejected by an asylum officer, and the Musollaris appeared before an IJ for removal proceedings. At the hearing Musollari recounted a history of hardships he said he and his family had suffered as a result of his involvement in Albanian politics. What follows is a summary of his testimony.

Musollari served in the Albanian military during the final days of communist control in the early 1990s. In 1991 Musollari disobeyed a direct order from his superior officer to fire on a group of civilians who were attempting to flee the country by boat. Fearing reprisal for his disobedience, Musollari boarded the boat with the civilians; it was bound for Italy. Italian officials, however, returned Musollari and other soldiers to Albania, and upon their return he and the others were arrested and beaten by Albanian officials.

In 1992 the communist government fell and the Democratic Party, of which Musollari is a member, took power. That party's electoral superiority lasted until 1997 when the Socialist Party swept the elections. Musollari, however, claimed that the Socialists seized the reins of power "by force of arms," through violence and intimidation. He testified that he became a target of these tactics after he gave a speech at a protest rally in his hometown of Korcë. Musollari was forced to flee, and his home was ransacked during his absence. His neighbors told him the police, not random intruders, were the culprits.

Musollari was arrested in October 1997 and again in September 1998. He testified that he was beaten during these detentions and interrogated about his activities in the Democratic Party; he also said the police tried to force him to spy on other members of the party. The police arrested Musollari again in November of 2000, after he served as an election observer for the Democratic Party during elections the previous month. He claimed that in the course of his duties as an election observer, he witnessed voting irregularities that enabled the Socialist Party to win the election. He testified that he was again interrogated about the Democratic Party's activities and threatened with violence against his family.

After this last incident, the Musollaris decided to flee Albania. They obtained nonimmigrant visas permitting them to come to the United States for six months, but were forced to leave their son, Kevin, behind. They arrived in the United States in 2001, overstayed, and sought asylum in 2002.

The Musollaris went before an IJ in the fall of 2003. The IJ denied their claims for asylum, withholding of removal, and protection under the CAT because he found Musollari's testimony incredible and lacking corroboration. Further, the IJ denied voluntary departure because he believed that Musollari was not of good moral character. The Musollaris appealed, and the BIA affirmed the IJ's decision except as to voluntary departure. The case was remanded to the IJ on that issue.

At the subsequent hearing before the IJ, the Musollaris withdrew their application for voluntary departure and instead sought to present new evidence on their claims. They did not state what the new evidence was, however. So the IJ denied the request and entered an order of removal. The Musollaris again appealed, and the BIA affirmed.

II. Discussion

The BIA adopted the IJ's opinion, so we base our review on the IJ's analysis. Balogun v. Ashcroft, 374 F.3d 492, 498 (7th Cir. 2004). Our review of an order denying asylum based on a failure to prove eligibility is extremely deferential; "the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 18 U.S.C. § 1252(b)(4)(B); Sina v. Gonzales, 476 F.3d 459, 461 (7th Cir. 2007); Balogun, 374 F.3d at 498 (holding that the IJ's findings may be overturned only if "the evidence compels a different result"). If an alien demonstrates eligibility, the Attorney General has discretion to grant or deny asylum. Ghebremedhin v. Ashcroft, 392 F.3d 241, 244 (7th Cir. 2004). "[T]he Attorney General's ...

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