Shqutaj v. INS, No. 02-1909 (3rd Cir. Feb. 4, 2003)

In this case, Gjoke Shqutaj, an Albanian national, appealed to the Third Circuit Court of Appeals an exclusion order handed down by the Board of Immigration Appeals affirming an Immigration Judge's denial of Mr. Shqutaj's application for asylum and withholding of deportation.

Mr. Shqutaj's father was imprisoned years ago for assisting those attempting to flee Albania's communist government. Mr. Shqutaj claims that during that period he was prevented from continuing his education past the eighth grade and that he was forced to do physical labor for fifteen years from 1975 to 1990. His brother died in 1990 and Mr. Shqutaj believes that the police were lying when they stated that his brother was killed in a work accident.

Mr. Shqutaj claims that during the 1990s he was an active member of the Democratic Party and the Association of the Formerly Politically Persecuted. He claims he was arrested twice in 1996 for participating in a roadblock that was part of a political demonstration and that while in custody of the police he was interrogated, threatened, grabbed by the throat and detained for three days in jail. After he was released, he was again arrested and suffered further abuse. After the second release, Shqutaj was convinced that he would soon be imprisoned or killed and he then fled the country. His wife remains in Albania and claims that the police have since inquired about his whereabouts.

Upon arriving in the US in 1996, Shqutaj was detained and charged with attempting to come into the US by fraud and for being an immigrant not in possession of a valid entry document. The Immigration Judge through out the fraud charge and Shqutaj conceded the latter one. He then presented an application for asylum and withholding of deportation.

The Immigration Judge ruled that Shqutaj did not prove his asylum claim and the BIA affirmed the ruling.

In its ruling, the Third Circuit noted the burden to prove a well-founded fear of persecution lies with the applicant who must demonstrate that he or she has a genuine fear of persecution, and that a reasonable person in the same circumstances would similarly fear persecution if returned to the native country in question. An applicant who establishes past persecution, however, benefits from a presumption that he or she has a well-founded fear of future persecution.

According to the court, as the resolution of these factual determinations has been delegated to the BIA, the appellate court's review is circumscribed, limited to ensuring that any findings are supported by substantial evidence. The court may reverse only where the evidence compels a conclusion contrary to that of the BIA.

The Third Circuit noted in its decision here that the applicant essentially restated the arguments presented in its appeal to the BIA.

In this case, the Immigration Judge determined that the arrest for participating in the road block was proper and that while the police's behavior may have been harsh and excessive, it did not amount to enough to justify an asylum claim.

The Third Circuit further noted that although Shqutaj claims that he feared that the police were going to kill him after he was released from custody for the second time, there is no evidence to lend any objective credence to Shqutaj’s fears. An applicant’s subjective fear of persecution must be “‘supported by objective evidence that persecution is a reasonable possibility’”

The court also found that Shqutaj had not established any prior harassing or persecuting treatment against him because of his father’s political activities or otherwise. Shqutaj’s argument with regard to the supposed persecution against him because of his family was based on two claims: (1) that he and his family were denied economic and educational opportunities under the previous communist regime, and (2) that the police officers who arrested him made threatening references to his father’s incarceration decades earlier. The court agreed with the Immigration Judge that neither of these claims could plausibly require the granting of asylum; Shqutaj has presented absolutely no evidence of any unique mistreatment or hardship prior to being properly arrested for his participation in the illegal roadblock.

The appeal was denied. The case can be found online at the ILW.com web site at http://www.ilw.com/lawyers/immigdaily/cases/2003,0206-Shqutaj.pdf.