Cbane Toska v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-4207
___________
CBANE TOSKA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order
of the Board of Immigration Appeals
Agency No. A98 694 556
Immigration Judge: Henry S. Dogin
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 27, 2009
Before: SLOVITER, JORDAN and GREENBERG, Circuit Judges
(Opinion Filed: December 14, 2009)
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OPINION
___________
PER CURIAM
Cbane Toska petitions for review of an order of the Board of Immigration Appeals
(“BIA”), which dismissed her appeal of the removal order of an Immigration Judge
(“IJ”). We will deny the petition for review.

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Cbane Toska is a native and citizen of Albania. She entered the United States in
December 2004 on a visitor’s visa and stayed longer than permitted. Toska applied for
asylum and related relief. Toska testified as follows.
Toska stated that she was persecuted in Albania due to her involvement with the
Democratic Party. She joined the party in January 1991 and was involved in putting up
posters, distributing literature, and she used the restaurant she and her husband owned for
meetings. A.R. 89-90. She also participated in elections. The Democratic Party came
into power in March 1992 and governed until 1997, when the Socialists took power. A.R.
113-14.
Toska testified that she was arrested on September 14, 1998 when she and her
husband were returning from the funeral of a Democratic Party leader. She was held
overnight and was beaten. The police threatened to kill her if she didn’t give up the
Democratic Party. A.R. 108-12. She was next arrested on June 6, 2001 along with a
friend during the electoral campaign. She was held for three hours, was threatened by the
police, and was beaten. A.R. 105-08. She was arrested for the last time on September 24,
2003. Her restaurant was full of supporters of the Democratic Party, and the police came,
shut down the restaurant, and arrested her. She was held for about five hours. They
threatened her life and beat her. A.R. 103-04. On September 3, 2004 she was going to
work when four people, who had made trouble at the restaurant the night before, came in
front of her car and broke the windshield. They took her out of the car, hit her and

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The affidavit simply states that Toska and her husband were originally from the1
North-East of the country, that they had been insulted by the “aborigines,” and that there
had been “events of bickering and arguments with residents.” A.R. 192.
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threatened to kill her. Her leg was hurt and she sought care from a nurse or doctor in her
home. A.R. 94-101. She and her husband consulted a lawyer who advised them to leave
Albania. A.R. 95. On October 13, 2004, her house was attacked with firearms and her
dog was poisoned. A.R. 92-94. Toska then left for the United States. Her husband
remains in Albania with the children. Toska testified that she was aware that the
Democratic Party won in the 2005 election, but she stated that it was only a weak
coalition that prevailed. She testified that she did not believe she would be safe if she
were to return to Albania. A.R. 117.
Toska presented an affidavit from an expert on conditions in Albania who
described conditions in Albania and who opined that Toska’s description of what
happened to her was consistent with those conditions. Toska also presented a
membership card for the Democratic Party and an affidavit from officials of the
Democratic Party. She also submitted a receipt noting she had received medical treatment
for 7 days in September 2004. The IJ found problems with some of her evidence. The
affidavit from the Party did not describe any problems that Toska had personally had due
to her membership, such as her arrests, even though she testified that she had informed
party officials each time she had a problem. The medical receipt simply said that she had1
been treated at home for seven days in September 2004, and does not say what her injury

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was. The receipt was not dated. A.R. 178-79.
The IJ believed that Toska was a member of the Democratic Party, that she owned
a restaurant, and that she may have been insulted and have gotten in debates over her
political activity. However, the IJ noted that there was no corroboration for her testimony
concerning her arrests and injuries. The IJ noted that although she was in frequent
contact with her husband, there was no affidavit or other corroboration from her husband.
The IJ also noted that the lawyer she consulted in Albania could have provided an
affidavit. The IJ also found that her testimony regarding the September 2003 arrest, that
she was beaten, was inconsistent with her application, which only said she was
threatened. The IJ did not believe that Toska had been persecuted in the past, and noted
that with the Democrats in power, she was not likely to be persecuted in the future. The
IJ also found no evidence that she would be tortured. The IJ denied relief, but granted
voluntary departure. A.R. 57-72.
The BIA adopted and affirmed the IJ’s decision. The BIA affirmed the IJ’s
adverse credibility finding, agreeing that Toska had failed to present reasonably available
corroborative evidence and agreeing that the finding was supported by unexplained
discrepancies. The BIA also found there was no evidence in the record that Toska would
be tortured, and noted specifically that the Democratic Party was in power in Albania.
The BIA extended Toska’s period for voluntary departure to 60 days from September 19,
2008. A.R. 3-4. Toska filed a timely, counseled petition for review.

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Because the BIA relied on the IJ’s reasoning, the decisions of the BIA and the IJ
both must be considered. See Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004).
Credibility determinations are reviewed under the substantial evidence standard. See Xie
v. Ashcroft, 359 F.3d 239, 243 (3d Cir. 2004). The Court must uphold the credibility
determination unless “any reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B). Adverse credibility determinations based on
speculation or conjecture, rather than on record evidence, are reversible. Gao v. Ashcroft,
299 F.3d 266, 272 (3d Cir. 2002).
Before denying asylum based on lack of corroboration, the agency must conduct a
three-part inquiry: “(1) an identification of facts for which it is reasonable to expect
corroboration; (2) the presence or absence of such corroboration in the record; and (3) the
adequacy of the applicant’s explanation for its absence.” Toure v. Att’y Gen., 443 F.3d
310, 323 (3d Cir. 2006) (citing Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir. 2001)).
Because the BIA did not conduct its own Abdulai inquiry and merely deferred to the
findings of the IJ, this Court directly reviews the decision of the IJ. See Abdulai, 239
F.3d at 549 n.2. The IJ’s findings are given considerable deference. The new language
of 8 U.S.C. § 1252(b)(4), added by the REAL ID Act of 2005 provides that “no court
shall reverse a determination made by a trier of fact with respect to availability of
corroborating evidence . . . unless the court finds . . . that a reasonable trier of fact is
compelled to conclude that such corroborating evidence is unavailable.”

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Toska argues that the IJ based his adverse credibility finding on one minor
perceived inconsistency–that her application simply said her life was threatened during
her 2003 detention whereas she testified that she was beaten during that detention.
Petitioner’s Brief at 10-11. One could argue that there is not really an inconsistency here;
she may have felt her life was threatened, in part, by means of the beating. However, the
IJ also based his adverse credibility finding in large part on the affidavit from the
Democratic Party, which failed to mention that Toska had been arrested or beaten because
of her political activities, even though she said she had informed them of all her troubles.
A.R. 65-66. The record does not compel us to find that Toska was credible.
Further, even assuming she was credible, the IJ did not err in requiring
corroboration for Toska’s claims. An alien’s credible testimony may satisfy the burden of
proof for a claim for relief from removal. See Dia v. Ashcroft, 353 F.3d 228, 247 (3d Cir.
2003). However, the BIA may require even “otherwise-credible applicants to supply
corroborating evidence in order to meet their burden of proof.” Abdulai, 239 F.3d at 554.
It is reasonable to expect corroboration about facts central to a claim and easily subject to
verification. Id. It also is reasonable to expect letters from family members remaining in
an applicant’s home country. See id. Toska did not provide any evidence from her
husband, and her only explanation was that her attorney did not tell her to provide such
evidence. The affidavit and medical receipt she did provide, while not contradictory, do
not lend much support to her claims.

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Although Toska’s testimony describes some significant instances of past
persecution–beatings and detentions for her political activities, and having her house fired
upon–we find that substantial evidence supports the IJ’s adverse credibility finding, and
his finding that Toska did not provide reasonably available corroborative evidence.
Because Toska failed to meet the burden of proof required for asylum, we agree
with the BIA that she necessarily failed to meet the higher burden of proof for statutory
withholding of removal. We further agree that because her claim for relief under the
Convention Against Torture is based on the same testimony that was found to be
incredible, she has not established that it is more likely than not that she will be tortured
upon her return to Albania. We will therefore deny the petition for review.
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