Matilda Shehaj v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-3812
MATILDA SHEHAJ,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
Petition for Review of an Order
of the Board of Immigration Appeals
Immigration Judge: Honorable Frederic G. Leeds
(No. A079-336-518)
Submitted Under Third Circuit LAR 34.1(a)
November 16, 2009
Before: AMBRO, ALDISERT and ROTH, Circuit Judges
(Opinion filed: December 22, 2009)
OPINION
AMBRO, Circuit Judge
Matilda Shehaj petitions for review of an August 2008 decision of the Board of
Immigration Appeals dismissing her appeal of the Immigration Judge’s order of removal.

-- 1 of 12 --

The BIA had jurisdiction under 8 C.F.R. § 1003.1(b). We have jurisdiction under1
8 U.S.C § 1252(a).
2
We grant her petition.1
I.
Shehaj, a native and citizen of Albania, entered the United States in September
2004 by way of Toronto, Canada. She applied for asylum in the United States in
September 2005 based on her fear that she would be forced into prostitution if she
returned to Albania. In November 2005, the Department of Homeland Security charged
Shehaj with being removable as an alien present in the United States without having been
admitted or paroled. 8 U.S.C. § 1182(a)(6)(A)(i). During an April 2006 hearing, Shehaj
conceded removability and elected to proceed with her asylum application and also to
seek withholding of removal and protection under the Convention Against Torture.
The IJ held a hearing on Shehaj’s application in July 2006. Shehaj testified that, at
the age of 15, she began a romantic relationship with a 24-year old man named Albert
Meli. Meli was the first man Shehaj was romantically involved with, and Shehaj kept her
relationship with Meli a secret from her family. When Shehaj’s cousin, Edmond Shehaj,
found out about the relationship, he warned Shehaj that Meli’s family trafficked women
for prostitution. Edmond believed that Meli’s uncle, Sokol Meli, was a trafficker who
lived in Italy, where Edmond also lived. Shehaj testified that she believed Edmond’s
story because Meli refused to talk with Shehaj about his family.
After learning this information, Shehaj told Meli what she had learned about his

-- 2 of 12 --

3
family and attempted to end the relationship. According to Shehaj, Meli admitted to her
that he was a trafficker, professed his love for her, and told her, “I will take you, [and]
there is no way and no one [who] could do anything to me.” Shehaj testified that she and
her family did not tell the police their fears about Meli because they believed the police
were connected with prostitution traffickers, which she learned from the news in Albania.
Shehaj testified that she knew of other girls from her village, including a classmate, who
were kidnapped and never found by the police.
According to Shehaj, Meli’s threatening phone calls persisted, and Edmond finally
recommended to Shehaj’s mother that it would be “best if [Shehaj] doesn’t have a
phone.” Edmond later met with Meli, and, following this meeting, recommended to
Shehaj’s mother and brothers that Shehaj leave Albania so that Meli could no longer
threaten her. Shehaj’s family agreed, and her brothers living in Greece raised $20,000 to
send her to the United States. Shehaj submitted affidavits from her mother, brother, and
sister-in-law that corroborated her story about Meli and the decision to raise money to pay
for Shehaj to flee the country.
Shehaj testified that in May 2005, after she entered the United States but before
she filed for asylum, her cousin Edmond was murdered in Florence, Italy. Shehaj and her
family believed that Sokol Meli killed Edmond because he had urged Shehaj to flee
Albania. During the July 2006 hearing, Shehaj submitted Edmond’s Albanian death
certificate (which did not list the cause or location of death) and an Italian newspaper
article concerning Edmond’s death, which, although poorly translated, reported that Sokol

-- 3 of 12 --

Shehaj stated in an affidavit submitted to the IJ that her grandfather had been a2
“high-ranking law enforcement official under the [regime] of former King Zogu of
Albania,” and that, following the Communist takeover of Albania, her family was
“severely mistreated . . . and . . . labeled an enemy of the state.”
4
Meli was a focus of the inquiry.
During the hearing, the Government introduced a two-page record of an airport
interview conducted by Canadian border officials who detained Shehaj when she arrived
in Toronto. This record (entitled “Examining Officer Notes”) reflects that Shehaj told the
officials that there was a “blood war” between her family and another Albanian family,
that someone from that family was “bothering” her, and that she feared they would try to
smuggle her into Italy. Shehaj also told Canadian officials that her uncle and two of her
cousins were killed by the other family. When the IJ confronted Shehaj with the record
from the airport interview, Shehaj admitted that her story about the “blood war” was not
completely truthful. Although Shehaj maintained that there was, in fact, a feud between
her family and another Albanian family, and that her uncle and two cousins had been
killed in the feud, Shehaj admitted that the feud was political in nature and had nothing to
do with her. When asked why she had lied to the Canadian officials, Shehaj explained2
that the “snakehead” who accompanied her to Canada told her that she should say
anything, “even stupid things,” so that the officials would release her.
The IJ stated that he was “unfortunately compelled” to find Shehaj incredible
because of her admission that she had lied to the Canadian officials. The IJ accordingly
denied Shehaj’s claims for asylum, withholding of removal, and CAT protection on that

-- 4 of 12 --

The 2005 State Department Country Report on Human Rights Practices in3
Albania, which Shehaj submitted in support of her asylum application, notes that Albania
“remain[s] a source country for trafficking of women and children for the purposes of
sexual exploitation and forced labor.” The main form of recruitment was “marriage under
false pretenses or false promises of marriage.” The State Department Country Report
also states that “police were often involved directly or indirectly in trafficking,” but few
were investigated or charged with crimes, as traffickers frequently were able to
“manipulate[] lawyers and judges and bribe[] their way out of punishment.”
In October 2008, we granted Shehaj’s motion for a stay of removal.4
5
basis. The IJ noted that, aside from Shehaj’s untruthful statements during her airport
interview, she had “a very strong case” for asylum, as her testimony was “consistent with
country reports about problems that exist in Albania.” Although the IJ denied Shehaj’s3
claims, he granted Shehaj’s request for voluntary departure.
On appeal, the BIA held that the IJ’s adverse credibility determination was not
clearly erroneous and dismissed Shehaj’s appeal. The BIA agreed that “the crucial fact
[was] that [Shehaj] admitted that she lied to Canadian officials and fabricated a story so
that she would be released.” The BIA also stated that Shehaj “made no mention, as she
now claims, of a fear of being trafficked and forced into prostitution.”
Shehaj filed a timely petition for review of the BIA’s decision.4
II.
Where “the BIA both adopts the findings of the IJ and discusses some of the bases
for the IJ’s decision, we have authority to review the decisions of both the IJ and the
BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004); see also Xie v. Ashcroft, 359
F.3d 239, 242 (3d Cir. 2004). Adverse credibility determinations are factual findings that

-- 5 of 12 --

The REAL ID Act applies to Shehaj’s claims because her application was filed5
after the Act’s effective date (May 11, 2005). Pub. L. No. 109-13 § 101(h)(2), 119 Stat.
at 305.
6
we review under the substantial evidence standard, Xie, 359 F.3d at 243; we must uphold
a credibility determination unless “any reasonable adjudicator would be compelled to
conclude to the contrary.” 8 U.S.C. §1252(b)(4)(B); Xie, 359 F.3d at 243. However, the
IJ must provide “specific, cogent reasons” for his or her findings, and adverse credibility
determinations based on “speculation or conjecture, rather than on evidence in the record,
are reversible.” Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003) (en banc) (quoting Gao
v. Ashcroft, 299 F.3d 266, 272, 276 (3d Cir. 2002)).
Under the REAL ID Act of 2005, credibility determinations may be made “without
regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the
applicant’s claim.” Pub. L. No. 109-13, § 101(a)(3)(B)(iii), 119 Stat. 231, 303 (2005)
(codified at 8 U.S.C. § 1158(b)(1)(B)(iii)). However, an adverse credibility5
determination may only be made after “[c]onsidering the totality of the circumstances,
and all relevant factors,” which may include “the consistency between the applicant’s . . .
written and oral statements . . . and . . . the circumstances under which the statements
were made.” Id. See also Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (holding
that, under the REAL ID Act, “an IJ may rely on any inconsistency or omission in making
an adverse credibility determination as long as the ‘totality of the circumstances’
establishes that an asylum applicant is not credible”) (emphasis in original).
III.

-- 6 of 12 --

7
In his oral decision, the IJ identified three grounds for his adverse credibility
determination: (1) Shehaj’s testimony that Meli never physically abused her; (2) Shehaj’s
failure to submit a police report concerning her cousin’s death; and (3) Shehaj’s
inconsistent statement to Canadian authorities at the Toronto airport. Understandably,
neither of these first two grounds was discussed by the BIA, as each relates to whether
Shehaj presented sufficient evidence in support of her claims, not her credibility. See
Chen v. Gonzales, 434 F.3d 212, 221 (3d Cir. 2005) (“[I]t is clear that the BIA’s own rule
requires a credibility determination to be independent of an analysis of the sufficiency of
an applicant’s evidence.”); Abdulai v. Ashcroft, 239 F.3d 542, 551 n.6 (3d Cir. 2001) (“A
failure of proof is not a proper ground per se for an adverse credibility determination.
The latter finding is more appropriately based upon inconsistent statements, contradictory
evidence, and inherently improbable testimony.”) (emphasis in original).
That leaves the inconsistency between Shehaj’s airport interview and her
testimony before the IJ as the sole basis for the IJ’s adverse credibility determination.
Importantly, the IJ appears to have found Shehaj credible during the hearing, noting that
Shehaj had been “candid and honest” during her testimony, and had “readily admitted”
that she had lied to Canadian border officials. The IJ nonetheless determined that he
“ha[d] to [make] a negative credibility finding” in light of Shehaj’s admission that she
had not been truthful with Canadian authorities. In so reasoning, the IJ failed to consider
whether “the totality of the circumstances[] and all relevant factors” supported the
adverse credibility determination. 8 U.S.C. § 1158(b)(1)(B)(iii). In particular, the IJ did

-- 7 of 12 --

8
not address (much less discredit) Shehaj’s explanation for her false statements during the
airport interview, or explain why that explanation was inadequate. See, e.g., Singh v.
Gonzales, 439 F.3d 1100, 1106 (9th Cir. 2006) (“Because ‘an adverse credibility finding
is improper where an IJ fails to address a petitioner’s explanation for a discrepancy or
inconsistency,’ this testimony does not provide substantial evidence to support an adverse
credibility determination.” ) (quoting Kaur v. Ashcroft, 379 F.3d 876, 887 (9th Cir.
2004)); Diallo v. Gonzales, 445 F.3d 624, 629 (2d Cir. 2006) (“[A] petition for review
may be granted in the face of an adverse credibility decision by the IJ when she fails to
‘engage or evaluate’ an asylum applicant’s explanations for apparent inconsistencies in
the record.”) (quoting Latifi v. Gonzales, 430 F.3d 103, 105 (2d Cir. 2005)).
The IJ’s adverse credibility determination is particularly problematic because he
relied solely on inconsistent statements made during Shehaj’s airport interview. “It is
established in this Circuit that inconsistencies between an airport statement and an asylum
seeker’s testimony before an IJ is not sufficient, standing alone, to support a BIA finding
that the petitioner was not credible.” Fiadjoe v. Att’y Gen., 411 F.3d 135, 159 (3d Cir.
2005) (citing Balasubramanrim v. INS, 143 F.3d 157, 164 (3d Cir. 1998)). We have
disfavored reliance on statements made during an airport interview because “[s]uch an
interview is likely to be hurried; language difficulties arise; the results may be
inaccurately recorded[;] and an arriving alien who has suffered abuse in his home country
may be reluctant to reveal full information in his or her first meeting with the
government.” Id.

-- 8 of 12 --

The record from the airport interview bears the words “signed by phone” under6
“interpreter.”
Neither the IJ nor the Government asked Shehaj whether she mentioned her fear7
of being forced into prostitution during the airport interview. During his closing
statement, Shehaj’s counsel highlighted the incomplete nature of the airport interview
record, and argued that it was “very possible that there was a discussion off the record
about the problem that [Shehaj] discusse[d] today before the court.”
The IJ rejected Shehaj’s argument, noting that Shehaj could have requested
additional records from Canadian officials if she believed the record was incomplete. The
examining officer notes, however, appear to confirm that they are the complete record of
9
Many of the problems with airport interviews that we identified in Fiadjoe apply
to Shehaj’s airport interview. First, Shehaj—who was only 17 years old at the time
—testified that she was “disoriented” during the interview and could not understand all
the questions. Shehaj did not have counsel during the interview, and, although an
interpreter was present, he or she apparently participated over the phone.6
Second, it is apparent that the record of the airport interview is incomplete.
Although Shehaj testified that the interview lasted approximately two hours, the record is
only one-and-a-half pages long, and lists only 22 total questions and answers. Moreover,
the sequence of questions reflected in the officer notes confirms that the entire interview
was not recorded. For example, immediately following a question regarding who Shehaj
wished to be her legal guardian, the border official asked Shehaj to identify the people
who wanted to “smuggle[] [her] into Italy.” This is the first reference to “smuggling” in
the officer notes, which strongly suggests that a substantial portion of the interview was
not recorded. On the basis of this record, it is impossible to know whether Shehaj also
mentioned her fear of being forced into prostitution during the interview. Accordingly,7

-- 9 of 12 --

the interview: the bottom of the first page says “page 1 of 2,” and the bottom of the
second page says “page 2 of 2.” The IJ did not address Shehaj’s argument that, in light of
the apparent completeness of the record, it was unlikely there was any other record
available. Cf. Abdulai, 239 F.3d at 554 (in analyzing whether an asylum applicant has
failed to present sufficient corroborating evidence, the IJ must engage in an “analysis of
whether the applicant has adequately explained” the absence of a particular corroborating
record). In this context, it does not appear that the IJ conducted any independent analysis
of whether the record of the airport interview was sufficiently reliable. See
Ramsameachire v. Ashcroft, 357 F.3d 169, 179 (2d Cir. 2004) (“[T]he BIA and reviewing
courts must closely examine each airport interview before concluding that it represents a
sufficiently accurate record of the alien’s statements to merit consideration in determining
whether the alien is credible.”).
10
to the extent the IJ and the BIA relied on the fact that Shehaj had not told Canadian
authorities about her fear of being forced into prostitution, that finding is not supported by
the record. See Dia, 353 F.3d at 249.
Finally, even assuming that Shehaj omitted her fear of being forced into
prostitution during her airport interview, we do not believe that omission, by itself,
required the IJ to find Shehaj incredible. In this context, it is quite possible that a 17-year
old female might be hesitant to disclose to border officials in a foreign country her fears
of being forced into prostitution. See, e.g., Fiadjoe, 411 F.3d at 159 (“Finding herself in a
strange place before a male officer it is not surprising that Ms. Fiadjoe would be unable to
discuss the shameful and taboo incidents of incestuous rape.”); see also Ramsameachire
v. Ashcroft, 357 F.3d 169, 179 (2d Cir. 2004) (“[B]ecause those most in need of asylum
may be the most wary of governmental authorities, the BIA and reviewing court must
recognize, in evaluating the statements made in an interview, that an alien may not be
entirely forthcoming in the initial interview.”). Accordingly, the inconsistency between

-- 10 of 12 --

In September 2008, Shehaj’s brother, Artur Shehaj, was granted asylum based on8
his fear that, should he return to Albania, he would be persecuted for helping Shehaj flee
the country. In November 2009, Shehaj filed a motion to remand on this ground, or in the
alternative, to hold our decision in abeyance pending a possible stipulation between the
parties regarding a remand. Because we grant Shehaj’s petition for review, we deny her
motion to remand as moot.
The Government argues that we should affirm the denial of Shehaj’s claim under9
the CAT because “both the Board and the immigration judge considered Shehaj’s CAT
protection claim apart from her asylum and withholding of removal claims.” See Zubeda
v. Ashcroft, 333 F.3d 463, 476 (3d Cir. 2003) (“[C]laims for relief under the [CAT] are
11
Shehaj’s statements to Canadian officials and her testimony before the IJ, which included
her “honest and candid” admission that she had not been truthful during her airport
interview, hardly required a finding that Shehaj was not credible.
* * * * *
In sum, we conclude that the IJ’s and BIA’s adverse credibility determination is
not supported by substantial evidence. In so holding, we are not finding Shehaj credible.
Dia, 353 F.3d at 260. Rather, we conclude that “because of the lack of substantial
evidence to support the adverse credibility determination, we [must] remand in order for
the [BIA] to further explain or supplement the record.” Id.; see also Senathirajah v. INS,
157 F.3d 210, 222 (3d Cir. 1998) (remanding to BIA with instructions to remand to IJ for
decision on asylum and withholding of removal, but without consideration of prior
erroneous adverse credibility findings). Accordingly, we grant Shehaj’s petition for
review, vacate the BIA’s decision, and remand for further proceedings consistent with8
this opinion on Shehaj’s claims for asylum, withholding of removal, and relief under the
CAT.9

-- 11 of 12 --

analytically separate from claims for asylum . . . and for withholding of removal under
[the INA].” ) (quoting Kamalthas v. INS, 251 F.3d 1279, 1283 (9th Cir. 2001)). Although
the IJ separately addressed Shehaj’s CAT claim in his oral decision, he simply stated that,
“[f]or the reasons detailed above, [Shehaj’s] claims are not credible,” and that Shehaj had
“failed to present any additional evidence to indicate she is more likely than not to be
tortured if removed to Albania.” The BIA merely restated the IJ’s conclusion in its
opinion. In these circumstances, we cannot help but conclude that the IJ’s erroneous
adverse credibility determination impermissibly “ble[d] through to the BIA’s [and the
IJ’s] consideration of [Shehaj’s] claim under the [CAT] without further explanation.” Id.
Accordingly, we also vacate the BIA’s denial of Shehaj’s claim for CAT relief.
12

-- 12 of 12 --