Ramani v. Ashcroft ( 2004 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Ramani, et al. v. Ashcroft, et al. No. 02-4362
ELECTRONIC CITATION: 2004 FED App. 0260P (6th Cir.)
File Name: 04a0260p.06 _________________
COUNSEL
UNITED STATES COURT OF APPEALS
ARGUED: Richard A. Kulics, IMMIGRATION LAW
FOR THE SIXTH CIRCUIT CENTER, Birmingham, Michigan, for Petitioners. Daniel E.
_________________ Goldman, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondents. ON BRIEF: Richard
SEFIT RAMANI; LINDITA X A. Kulics, IMMIGRATION LAW CENTER, Birmingham,
RAMANI; and ARDIT RAMANI, - Michigan, for Petitioners. Alison Marie Igoe, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
Petitioners, - for Respondents.
- No. 02-4362
-
v. > _________________
,
- OPINION
JOHN ASHCROFT , Attorney - _________________
General of the United States; -
IMMIGRATION AND - DANNY C. REEVES, District Judge. Petitioners Sefit
NATURALIZATION SERVICE, - Ramani (“Ramani”), Lindita Ramani, and Ardit Ramani seek
Respondents. - review of the Board of Immigration’s (“BIA”) decision
- affirming the denial of their requests for asylum, withholding
N of removal, and protection under the Convention Against
On Appeal from the Board of Immigration Appeals. Torture. For the reasons that follow, we AFFIRM the BIA’s
Nos. A77 621 623; A77 621 624; A77 621 625. decision.
Argued: June 9, 2004 BACKGROUND
The Ramanis are ethnic Albanians and citizens of
Decided and Filed: August 4, 2004 Macedonia who entered the United States without inspection
on or about October 19, 1999. Subsequently, on October 21,
Before: SILER and GIBBONS, Circuit Judges; REEVES, 1999, the Immigration and Naturalization Service (“INS”)
District Judge.* charged Ramani with being an alien present in the United
States without having been admitted or paroled into the
country and instituted removal proceedings against him. At
the initial removal hearing, Ramani requested permission to
file a written application for asylum, which was submitted
September 19, 2000. The court set a hearing date on the
*
The Hono rable Danny C. Reeves, United States District Judge for merits of Ramani’s application for April 13, 2001.
the Eastern District of Kentucky, sitting by designation.
1
No. 02-4362 Ramani, et al. v. Ashcroft, et al. 3 4 Ramani, et al. v. Ashcroft, et al. No. 02-4362
Approximately two weeks before the merits hearing, that he was supposed to appear in court on October 12, 1999,
Ramani sought to offer two documents for admission into but he was afraid to do so. Specifically, he testified that he
evidence to support his request for asylum. The first was fearful of being “torture[d] while in the custody of the
document was represented to be a copy of a legal summons police.”
from a Macedonian court directing Ramani to appear on
October 12, 1999. The second document was a purported Lindita Ramani testified that the police came to her house
copy of an extract from the Macedonian penal code. At the and arrested her husband on two occasions. While she could
April 13, 2001 hearing, the INS objected to the introduction not remember the dates of those arrests, she estimated that it
of these documents. After the Immigration Judge (“IJ”) asked was from “1997 and on.” She indicated that the last
about the location of the originals of the documents, Ramani demonstration she recalled her husband attending was in
testified that he had given the summons to his attorney who 1999. However, she could not recall how long after this
claimed to have misplaced it. Ramani further testified that his demonstration they came to the United States.
uncle mailed a copy of the penal code extract to him after
obtaining it from an attorney in Macedonia. He stated that he After evaluating the testimony presented at the hearing, the
had torn off the portion of the document that he felt was IJ denied Ramani’s request for asylum, withholding of
irrelevant. Ramani’s attorney admitted that he had made no removal, and protection under the Convention Against
attempt to obtain a copy of the Macedonian law from a source Torture. Specifically, the IJ found that Ramani was not a
from which the IJ could have taken judicial notice. credible witness. He noted that Ramani could not remember
any of the organizers of the July 1997 demonstration other
During the hearing Ramani testified that he is a citizen of than Rufi Osmani. Also, he pointed out that Ramani’s
Macedonia but that he is an ethnic Albanian. He stated that references to his arrests were very general and that his
prior to arriving in the United States he lived in Tateshposto, testimony was vague, in that he could not specifically
Struga, which is approximately twenty kilometers from the remember the dates of his alleged arrests.
Albanian border. Ramani testified that his association with
the police began in 1997 when he began to participate in The IJ also concluded that Ramani’s story was not
demonstrations that promoted rights for ethnic Albanians. He corroborated by the Country Report for Macedonia, which
indicated that the group that typically organized the was offered into evidence by the INS. Although the IJ
demonstrations was “some kind of a party, VDSH, acknowledged that this report related to incidents occurring
Democratic Party of Albania.” Although Ramani testified in 2000, not 1999 (the general period when Ramani claimed
that he was a member of this group, he claimed that he had his problems arose), he found that the report did not
left his membership card at his mother’s house in Macedonia. corroborate Ramani’s claim that ethnic Albanian minorities
He stated that the group conducted several additional were tortured by police for participating in demonstrations.
gatherings in 1998. He further claimed that his problems with The IJ noted that the Country Report indicated that the
the police resurfaced in 1999 after a group of Albanian Macedonian government generally respected its citizens’ right
refugees arrived from Kosovo. Ramani stated that, in to freedom of assembly and that demonstrations regularly
September 1999, following a demonstration in Valesht, he occurred there without incident.
was stopped by the police as he was returning home.
According to Ramani, the officers beat him several times over The IJ declined to admit into evidence the purported copy
a thirty minute period. As a result of this incident, he stated of the legal summons and the alleged extract of the
No. 02-4362 Ramani, et al. v. Ashcroft, et al. 5 6 Ramani, et al. v. Ashcroft, et al. No. 02-4362
Macedonian penal code because the translation of these of the current proceedings may not constitute a basis for
documents did not comply with 8 C.F.R. § 3.33. In addition, a finding of bias in the absence of a display of a deep-
the IJ found that the document purporting to be a copy of a seated favoritism or antagonism that would make fair
legal summons was not the original and had not been properly judgment impossible.
authenticated. The IJ also refused to take judicial notice of
the document purported to be an extract from the Macedonian The Board further concluded that Ramani received a full and
penal code. He noted that Ramani’s attorney had made no fair hearing and agreed with the IJ that he had not met his
attempt to produce the law from available, admissible burden of proving eligibility for asylum, withholding of
sources. removal, or relief under the Convention Against Torture.
Ramani filed a notice of appeal of the IJ’s decision with the JURISDICTION AND STANDARD OF REVIEW
BIA and objected on two grounds. Specifically, he stated that
This court has jurisdiction over Ramani’s request for
[t]he Immigration Judge erred in finding that Respondent asylum pursuant to the Immigration and Nationality Act
did not qualify as a refugee and that [he] did not show § 242(a)(1). See 8 U.S.C. § 1252 (a)(1). However, to the
that he had a well founded fear of persecution, despite extent that Ramani has failed to exhaust his administrative
the fact that Respondent presented substantial testimony remedies with respect to certain claims, this court does not
that [he] did qualify as a refugee and had a well founded have jurisdiction to address those claims, as discussed infra.
fear of persecution. Perkovic v. INS, 33 F.3d 615, 619 (6th Cir. 1994); Dokic v.
INS, 899 F.2d 530, 532 (6th Cir. 1990). Upon review of the
The Immigration Judge erred in finding that claims that are properly before the court, the panel must
Respondent’s testimony, and demeanor was of consider whether the BIA correctly determined that Ramani
questionable credibility even though at trial failed to sustain his burden of establishing eligibility for
Respondent’s testimony, and demeanor was credibile asylum. See 8 C.F.R. § 208.13(a) (an alien applying for
[sic], and that it was believable, consistant [sic] and asylum bears the burden of demonstrating that he or she is a
sufficiently detailed to be found credible. refugee). In reviewing decisions rendered by the BIA that an
alien is not eligible for asylum, this court reviews
In his BIA brief, however, Ramani simply alleged that the IJ administrative findings of fact concerning whether the alien
was biased. Notably, Ramani did not object in his BIA qualifies as a refugee under a substantial evidence test. Yu v.
appeal brief to the IJ’s refusal to admit the two documents Ashcroft, 364 F.3d 700, 702-703 (6th Cir. 2004) (“findings of
that were at issue at the merits hearing. In addition, Ramani fact are [reviewed under 8 U.S.C. § 1252(b)(4)(B), which]
did not challenge the IJ’s finding that he was not a credible basically codifies the Supreme Court’s substantial evidence
witness in his brief to the BIA. standard”). Thus, an IJ’s factual determinations will be
reversed only if “any reasonable adjudicator would be
Ultimately, the BIA rejected Ramani’s claim of prejudice compelled to conclude to the contrary.” 8 U.S.C.
stating that § 1252(b)(4)(B).
any opinion formed by the Immigration Judge on the
basis of facts introduced or events occurring in the course
No. 02-4362 Ramani, et al. v. Ashcroft, et al. 7 8 Ramani, et al. v. Ashcroft, et al. No. 02-4362
THE USE OF A SUMMARY AFFIRMANCE None of Ramani’s arguments concerning the consideration
of evidence was properly presented to the BIA. It is proper
Ramani argues that the BIA’s brief dismissal of his appeal for an appellate court to consider waived all issues not raised
constituted a violation of due process. He concedes, however, in an appellant’s briefs, even if the issue has been raised in the
that the BIA “certainly has the authority to affirm, without notice of appeal. Farm Labor Organizing Comm. v. Ohio
opinion, or issue a brief opinion, in any case in which the State Highway Patrol, 308 F.3d 523, 528 n.1, 544 n.8 (6th
Board member concludes that there is no legal or factual basis Cir. 2002); Ahlers v. Schebil, 188 F.3d 365, 374 (6th Cir.
for reversal of the decision by the Service or the [IJ],” citing 1999). Neither Ramani’s notice of appeal to the BIA, nor his
8 C.F.R. § 1003.1, which provides for summary affirmance. BIA appeal brief, advanced his current argument that the IJ
This provision permits the BIA to issue summary misused certain evidence. While his BIA appeal brief did
affirmances, with little or no discussion, as well as decisions discuss the use of the Country Report for Macedonia, noting
without opinion in immigration appeal cases meeting certain that “[t]hese reports are infamous for providing an overly rosy
criteria. Ramani suggests that the use of these affirmances picture of most countries,” it did not make his current
can violate due process in certain circumstances. This court, argument that “State Department Opinions are not always
however, has recently examined the use of summary reliable,” it provided no legal basis for this argument, and it
affirmances, concluding that their use does not violate due was mentioned only in the context of Ramani’s claim that the
process. Denko v. INS, 351 F.3d 717, 726-30 (6th Cir. 2003). IJ was biased. By failing to properly present these claims to
the BIA, Ramani failed to exhaust his administrative remedies
IMPROPER CONSIDERATION OF EVIDENCE on these issues.
Before a federal court may assert jurisdiction over an alien The purpose of Section 1252(d)(1)’s exhaustion
removal appeal, the alien must have exhausted all requirement is (1) to “ensure that the INS, as the agency
administrative remedies. 8 U.S.C. § 1252(d)(1). The United responsible for construing and applying the immigration laws
States argues that Ramani’s claim that the IJ improperly and implementing regulations, has had a full opportunity to
considered and disregarded certain evidence was not properly consider a petitioner’s claims,” Theodoropoulos v. INS, 358
presented to the BIA and, therefore, is not subject to review F.3d 162, 171 (2d Cir. 2004); (2) to “avoid premature
by this court. interference with the agency’s processes,” Sun v. Ashcroft,
370 F.3d 932, 940 (9th Cir. 2004); and (3) to “allow the BIA
Ramani argues that the IJ improperly relied “on evidence to compile a record which is adequate for judicial review.”
which was not admitted[] in order to reach his decision” and Dokic, 899 F.2d at 532. In this case, these goals would be
misused “the evidence which had been admitted.” Regarding subverted by considering an issue that was not properly
his first argument, he complains that the IJ did not receive the presented to the BIA. Had Ramani presented his current
Macedonian summons into evidence, yet used that exhibit to arguments to the BIA, this matter could have been properly
impugn Ramani’s credibility. He next argues that the IJ dealt with by immigration judges whose experience in these
should not have relied upon the Country Report for matters is useful. In addition, the record on these issues could
Macedonia, a political and social analysis of Macedonia have been more fully developed if they had been presented
produced by the State Department. Ramani has numerous below.
complaints both about the State Department’s reliability as
well as the IJ’s “selective quotations” from the report.
No. 02-4362 Ramani, et al. v. Ashcroft, et al. 9 10 Ramani, et al. v. Ashcroft, et al. No. 02-4362
Unlike many contexts in which exhaustion of exhausted); Harchenko v. INS, No. 00-3789, 22 Fed. Appx.
administrative remedies is a court-created doctrine, Section 540, 543 (6th Cir. 2001) (“[w]e shall only consider the
1252(d)(1) provides that federal courts are without sufficiency of the IJ’s decision and the BIA’s affirmance of
jurisdiction to hear an immigration appeal when that decision. Petitioner’s other arguments are precluded as
administrative remedies have not been exhausted. Perkovic, unexhausted issues, which this court has no jurisdiction to
33 F.3d at 619. In Chung Young Chew v. Boyd, the Ninth review”).
Circuit held that
In Perkovic, this court recognized that if an alien presents
[f]ailure to take an available appeal to the Board from an both exhausted and unexhausted claims, only those claims
order of deportation constitutes a failure to exhaust that are properly exhausted may be considered. 33 F.3d at
administrative remedies, thereby depriving a court of 619. The Perkovic court also noted that in Dokic the court
appeals of jurisdiction to review any aspect of such order. had concluded that the alien’s claims were unexhausted
It follows that failure to raise, on such an appeal, a because the alien had not presented his present claims during
particular question concerning the validity of the order the course of administrative proceedings. Id. at 620 n.4; see
constitutes a failure to exhaust administrative remedies Ivezaj v. INS, 84 F.3d 215, 219 (6th Cir. 1996), superceded by
with regard to that question, thereby depriving a court of statute on other grounds as stated in Visha v. INS, No. 00-
appeals of jurisdiction to consider that question. 3446, 51 Fed. Appx. 547, 551 (6th Cir. 2002), (“Perkovic
distinguished Dokic on the grounds that exhaustion was not
309 F.2d 857, 861 (9th Cir. 1962); accord Marrero v. INS, found in Dokic because Dokic was making a due process
990 F.2d 772, 779 (3d Cir. 1993); Alvarez-Flores v. INS, 909 argument not previously raised with the BIA, and so, by
F.2d 1, 8 (1st Cir. 1990); Farrokhi v. INS, 900 F.2d 697, 700 holding Dokic’s appeal was barred by the exhaustion
(4th Cir. 1990); Youssefinia v. INS, 784 F.2d 1254, 1258 (5th doctrine, the Dokic court was really insisting that appellate
Cir. 1986); Bajwa v. Cobb, 727 F. Supp. 53, 56 (D. Mass. issues must be raised below.”).
1989). These cases provide a stricter requirement than merely
requiring an alien to exhaust all avenues of appeal; they Having considered these authorities, we hold that only
further require the alien to preserve each claim by presenting claims properly presented to the BIA and considered on their
it to the BIA. merits can be reviewed by this court in an immigration
appeal. Because the arguments currently presented by
In this circuit, several cases have suggested that Section Ramani were not presented to the BIA, they are not subject to
1252(d)(1)’s exhaustion requirement mandates that only those review by this court.
claims presented to the BIA may be appealed to this court.
Cf. Perkovic, 33 F.3d at 619 (finding that claims had been REVIEW OF IMMIGRATION JUDGE’S OPINION
exhausted because “they were presented to the immigration
judge and then to the [BIA], which definitively resolved the Ramani also argues that the court should not review the
claims on their merits”); Dokic, 899 F.2d at 532 (“[a]t no time BIA’s decision, but should review the IJ’s decision directly
during the course of these administrative proceedings did since it was much more thorough than the BIA’s. When the
petitioners present their claims that counsel was ineffective BIA utilizes a summary affirmance, it is proper to review the
and that the record was inadequate” and thus the claims were IJ’s decision directly. Denko, 351 F.3d at 730. In this case,
unreviewable because they had not been administratively however, the BIA did not utilize a summary affirmance.
No. 02-4362 Ramani, et al. v. Ashcroft, et al. 11
Rather, it issued a decision disposing of the single issue
presented in Ramani’s BIA appeal brief, i.e., whether the IJ
was biased. In his BIA appeal brief Ramani simply claimed
that the “major stumbling block for this claim is the Court’s
overwhelming prejudice. . . . The result is a fundamental
denial of due process. . . . The aims of Justice, in this
administrative Court which is a part of the U.S. Department
of Justice, have been completely perverted in this matter.”
Ramani’s five-page BIA appellate brief was little more than
an attack on the IJ’s impartiality. While his BIA appeal brief
does briefly discuss the use of the Country Report for
Macedonia (an issue he now raises on appeal), this issue was
not discussed as a basis for his BIA appeal, as it was
mentioned only in passing, in reference to the IJ’s supposed
“biased rendition” of the Country Report. The thrust of the
BIA brief was that the IJ was biased. It was the only issue
clearly advanced by Ramani, and discussion of this issue
continued throughout the entire brief.
Ramani did briefly argue that he had a reasonable fear of
persecution in his BIA appeal brief. Perhaps because Ramani
provided little support for this argument, relying only on
conclusory statements, the BIA did not discuss this argument
in affirming the IJ. It is not necessary to directly review the
IJ’s decision on this issue, however, because Ramani did not
advance this argument in his current appeal to this court.
Regarding the issues the Petitioner did present to this court,
i.e., whether the IJ misused certain evidence, this court will
not review the IJ’s decision directly on these issues because
they were not presented to the BIA, and thus Ramani did not
exhaust his administrative remedies for these claims.
Therefore, in this case, review of the BIA’s opinion is
sufficient to resolve those issues properly before this court.
The petition for review of the Board of Immigration
Appeals is DENIED.