Albana Muca v. JOHN ASHCROFT, Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-4729
ALBANA MUCA,
Petitioner
v.
JOHN ASHCROFT, Attorney General of the United States;
BUREAU OF CITIZENSHIP AND IMMIGRATION SERVICES
On Petition for Review from the Board of Immigration Appeals
Agency No. A76-140-773
Submitted Under Third Circuit L.A.R. 34.1(a): November 19, 2004
Before: SCIRICA, Chief Judge, and McKEE and CHERTOFF, Circuit Judges.
(Filed: December 3, 2004)
OPINION OF THE COURT

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1 The IJ found that Muca was not credible, but the BIA did not adopt that finding. The
government therefore concedes that we must consider Muca a credible witness. (Resp’t Br. at 17 n.4.)
2
CHERTOFF, Circuit Judge.
Petitioner Albana Muca seeks review of the Board of Immigration Appeals’ (BIA)
final order of removal, in which the BIA denied her claims for asylum and withholding
of removal, and her claim under the Convention Against Torture. For the reasons that
follow, we will affirm the BIA’s decision in part and remand Muca’s petition for further
consideration.
I
Muca, a native and citizen of Albania, was stopped trying to enter the United
States using a fraudulent passport. Muca said that she feared returning to Albania, a
claim the INS credited after interviewing her. The INS therefore placed Muca in
removal proceedings to allow an Immigration Judge (IJ) to consider her asylum claim.
In her application for asylum and withholding of removal, Muca claimed that her
family had been persecuted when Communists controlled Albania.1 Among other
allegations, Muca claimed that her father had been active in Albania’s Democratic Party
and had attended anti-Communist demonstrations. Muca herself later joined the
Democratic Party and helped it draft a referendum on a new Albanian constitution.
According to Muca, when the Communist Party regained power in early 1997, it

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3
systematically targeted members of the Democratic Party and their families through
political revenge, violence, and intimidation.
On April 7, 1998, Muca was accosted by three men in a car, one of whom told her
that they were going to send her to Italy. Muca believes that these men were part of a
group that illegally traffics girls and women to Italy and forces them into prostitution.
Men, including Eraldo, the son of the local police chief, tried to abduct Muca on
subsequent occasions, though Muca was able to escape. On one of those occasions,
before Muca fled, one of the would-be abductors said, “We think we should send you to
Italy. What do you think about that?” (App. 137 (quotation marks omitted).) On
another occasion, Muca was pulled into a car by Eraldo and another man. They took her
to an abandoned building where Eraldo told her, “Now you better be quiet. Shut up and
listen to what we say and tell you to do because we know that you are perfect case [sic]
for Italy.” (App. 143 (quotation marks omitted).)
The IJ concluded that Muca was subject to removal and denied her application for
asylum and withholding of removal. The IJ found that there was no nexus between the
victimization and Muca’s political opinion. The IJ also refused to find that “victims of
the sex trade” were a particular social group for purposes of 8 U.S.C. § 1101(a)(42)(A).
Finally, the IJ concluded that Muca had not established a link between Albanian gangs
forcing women into the sex trade and the Albanian government’s use of such gangs to
target its political opponents. The BIA adopted and affirmed the IJ’s finding that Muca

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had not established a nexus between her victimization in Albania and her political
opinion. The BIA also rejected Muca’s claim that she was eligible for protection under
the Convention Against Torture, 8 C.F.R. §§ 1208.16, 1208.18, holding that she had
failed to establish that Albanian government officials acquiesced in or consented to the
nongovernmental actors’ conduct towards her. The BIA therefore dismissed Muca’s
appeal.
II
BIA determinations are upheld if they are “‘supported by reasonable, substantial,
and probative evidence on the record considered as a whole.’” INS v. Elias-Zacarias,
502 U.S. 478, 481 (1992) (quoting 8 U.S.C. § 1105a(a)(4)). “We will reverse only if the
evidence not only supports a contrary conclusion, but compels it.” Guo v. Ashcroft, 386
F.3d 556, 561 (3d Cir. 2004) (quotation marks and alteration omitted).
The Immigration and Nationality Act provides that aliens physically present in the
United States may apply for asylum. 8 U.S.C. § 1158(a)(1). To qualify for asylum, an
alien must be, inter alia,
unable or unwilling to return to, . . . and unable or unwilling to avail
himself or herself of the protection of, [the country of his or her nationality]
because of persecution or a well-founded fear of persecution on account of
race, religion, nationality, membership in a particular social group, or
political opinion.
8 U.S.C. § 1101(a)(42)(A); see also id. § 1158(b)(1). The statutes at issue here “make[]
motive critical.” Elias-Zacarias, 502 U.S. at 483. That is, Muca must present some

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evidence to show that the men who sought to persecute her did so “because of” one of
the protected grounds. Id.
A
Muca failed to offer any substantial evidence to support her claim that she was
persecuted based on her political opinion. Rather, her testimony supports only the
conclusion that her abductors sought to force her into an Italian prostitution ring. Absent
from Muca’s testimony is any indication that Eraldo or his gang was even aware of
Muca’s political opinions, much less motivated by them. Speculation aside, Muca did
not testify to anything her persecutors said that could allow a reasonable factfinder to
conclude that they sought to punish Muca for her political opinions. For these reasons,
nothing in the record would support, much less compel, a contrary conclusion. The
denial of asylum and withholding was proper.
B
Less clear, however, is the absence of a link between the alleged persecution and
Muca’s membership in a particular social group, specifically, women who are potential
victims of the sex trade. Muca’s testimony, which we must credit, see supra note 1, may
support a finding that she was targeted based on her membership in that group. But the
BIA simply failed to address the issue. We believe that the BIA should have the first
opportunity to pass on the question of whether women who are potential victims of the
sex trade constitute a particular social group for purposes of § 1101(a)(42)(A). If so, the

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2 The regulations implementing the Convention Against Torture define “torture” as any act by
which severe physical or mental pain or suffering is intentionally inflicted on a person “by or at the
instigation of or with the consent or acquiescence of a public official or other person acting in an official
capacity.” 8 C.F.R. § 1208.18(a)(1). There is no evidence in the record to support the quoted element.
Muca points to her allegation that Eraldo was the son of the local police chief. Even crediting this
allegation, however, there is no evidence that the police chief consented to or acquiesced in his son’s
conduct, or that he even knew of that conduct. Muca’s Convention Against Torture claim fails.
6
BIA must also (or alternatively) decide whether the conduct of Eraldo and his associates
rises to the level of persecution, another question the BIA did not reach in the prior
proceedings. We therefore remand this case to the BIA for consideration of these issues.2
For the foregoing reasons, we will affirm the BIA’s decision in part, and remand
Muca’s petition for further consideration.

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