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

In this case, Gjoke Shqutaj, an Al b anian national, appealed to the Third Circuit Court of Appeals an exclusion order handed down b y the Board of Immigration Appeals affi rm ing 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 Al b ania '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 la b or for fifteen years from 1975 to 1990. His b rother died in 1990 and Mr. Shqutaj b elieves that the police were lying when they stated that his b rother was killed in a work accident.

Mr. Shqutaj claims that during the 1990s he was an active mem b er of the Democratic Party and the Association of the Fo rm erly Politically Persecuted. He claims he was arrested twice in 1996 for participating in a road b lock that was part of a political demonstration and that while in custody of the police he was interrogated, threatened, gra b b ed b y the throat and detained for three days in jail. After he was re lea sed, he was again arrested and suffered further a b use. After the second re lea se, Shqutaj was convinced that he would soon b e imprisoned or killed and he then fled the country. His wife remains in Al b ania and claims that the police have since inquired a b out his wherea b outs.

Upon arriving in the US in 1996, Shqutaj was detained and charged with attempting to come into the US b y fraud and for b eing 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 affi rm ed the ruling.

In its ruling, the Third Circuit noted the b urden 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 reasona b le person in the same circumstances would similarly fear persecution if returned to the native country in question. An applicant who esta b lishes past persecution, however, b enefits 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 dete rm ina tions has b een delegated to the BIA, the appellate court's review is circumscri b ed, limited to ensuring that any findings are supported b y su b stantial 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 dete rm ined that the arrest for participating in the road b lock was proper and that while the police's b ehavior may have b een 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 re lea sed from custody for the second time, there is no evidence to lend any o b jective credence to Shqutaj’s fears. An applicant ’s su b jective fear of persecution must b e “‘supported b y o b jective evidence that persecution is a reasona b le possi b ility’”

The court also found that Shqutaj had not esta b lished any prior harassing or persecuting treatment against him b ecause of his father’s political activities or otherwise. Shqutaj’s argument with regard to the supposed persecution against him b ecause of his family was b ased 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 plausi b ly require the granting of asylum; Shqutaj has presented a b solutely no evidence of any unique mistreatment or hardship prior to b eing properly arrested for his participation in the illegal road b lock.

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