Marku v. Ashcroft ( 2004 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Marku v. Ashcroft No. 02-4366
ELECTRONIC CITATION: 2004 FED App. 0272P (6th Cir.)
File Name: 04a0272p.06 D. Jentzer, Linda S. Wernery, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for
UNITED STATES COURT OF APPEALS Respondents.
FOR THE SIXTH CIRCUIT _________________
_________________
OPINION
_________________
LIRI NOREK MARKU , X
Petitioner, - RICHARD D. CUDAHY, Circuit Judge. In this appeal,
- Petitioner Liri Norek Marku seeks review of a Board of
- No. 02-4366 Immigration Appeals (BIA) order denying her application for
v. -
> asylum and withholding of deportation under sections 208
, and 241(b)(3) of the Immigration and Nationality Act (INA),
JOHN ASHCROFT , Attorney - 8 U.S.C. §§ 1158, 1231(b)(3). Because the BIA properly
General; IMMIGRATION AND - found that Marku failed to demonstrate past persecution or the
NATURALIZATION SERVICE, - likelihood of future persecution on account of a political
Respondents. - opinion or membership in a particular social group, we
- AFFIRM.
N
On Appeal from the Board of Immigration Appeals. I. BACKGROUND
No. A73 415 870. Marku, a citizen of Albania had lived in Fier, Albania, all
of her life, before fleeing to the United States in 1995. App.
Submitted: March 12, 2004 at 86-87.1 While in Albania, Marku was the Chief Finance
Officer (also called the top economist) of the government-
Decided and Filed: August 20, 2004 owned National Government Tobacco Company of Albania
(NGTCA) from 1975 until 1994. Id. at 59, 108. In 1994, part
Before: MOORE, CLAY, and CUDAHY, Circuit Judges.* of NGTCA merged with a private Greek tobacco company
_________________ known as Costa. Id. at 58, 93. After the merger, the NGTCA
continued to exist as a separate entity but the newly-formed
COUNSEL joint venture became known as National United Kavax
ON BRIEF: Ira J. Kurzban, KURZBAN, KURZBAN,
WEINGER & TETZELI, Miami, Florida, for Petitioner. Lyle
* 1
The Honorab le Richard D. Cudahy, Circuit Judge of the United The appen dix annexed to Pe titioner’s brief in this case will be
States Court of Appeals for the Seventh Circuit, sitting by designation. designated as “Ap p.”
1
No. 02-4366 Marku v. Ashcroft 3 4 Marku v. Ashcroft No. 02-4366
Industry (KAVAX).2 Technically, after the merger, Marku Therefore, in January of 1995, Sota called Marku into the
worked for both KAVAX and the NGTCA. Id. at 93. One of director’s office and tried to persuade her to manipulate
her responsibilities was to prepare and file KAVAK’s public KAVAX’s balance sheet in order to disguise the company’s
financial disclosures. Id. at 108-09. losses. Id. at 59-60, 117. Specifically, Sota asked Marku to
shift the loss from KAVAX to NGTCA. Id. at 17, 60, 95,
KAVAX ended its first fiscal year with a deficit of 117. He promised Marku that he would protect her from the
approximately $280,000.3 Id. at 11, 17, 94. Marku blamed law in case the auditors discovered the manipulation. Id. at
these losses, in part, on Spiro Sota, Marku’s direct supervisor, 117. Despite Sota’s promise, Marku feared that she would be
who was in charge of KAVAX and was also a Vice Minister sent to jail and refused to comply. Id. at 95, 117. In response
in the Ministry of Agriculture, appointed by the Prime to her refusal, Sota placed a revolver on the desk, presumably
Minister of Albania. Id. at 17-18, 113, 116, 128. Albanian as a not-so-veiled threat. Id. When Marku again refused to
law HR 83 requires the dissolution of companies with annual doctor the books, Sota raised his voice, hit his hand on the
losses exceeding certain thresholds.4 Id. at 94, 103, 118-119. desk and then placed it on the revolver. Id. at 117. The
Apparently, if Marku were to file accurate public financial meeting was interrupted by the unannounced arrival of Sota’s
disclosures, correctly reflecting the company’s significant secretary. Id.
losses, KAVAX would have to be dissolved under the
Albanian law. Id. A week after the meeting, Sota, giving no advance notice,
sent Marku on a business trip with a colleague to the city of
Vlore. Id. at 12, 60, 117. On their way back, a car drove
straight at them, causing their car to veer off the road and flip
over three or four times. Id. at 60, 118. Both Marku and her
2
colleague suffered injuries. Id. Marku’s colleague reported
Marku was unclear in her testimony as to what extent KAV AX was the incident to the police, and the police revealed, after an
considered a priva te or public entity. Compa re App. at 93 (testifying that investigation, that the driver who caused the accident was a
KAVAX was “governmental but . . . [it] was more or less . . . a company
that was privately owned .”); and id. at 100 (“It was a privately-owned former chauffeur of Sota. Id. at 98, 118, 124. Marku did not
firm that was cooperating with the government.”); with id. at 113 (“As far know whether the government ever pressed criminal charges
as the joint venture Kavax was concerned, the state was in charge.”); and against the driver. Id. at 124.
id. at 130 (describing KAV AX as “public and state o wned ”).
3
Marku testified that she did not report Sota’s conduct and
There is discrepancy in the record as to exact amount of the deficit. threats to anyone because she believed it would be futile, as
Marku’s affidavit indicates that the deficit was $1,862,532 , and her the entire government was corrupt. Id. at 132 (“I had no
testimony consistently rounds that to $1,800,000. App. at 59, 94, 117,
141. The IJ’s opinion, however, indicates that the deficit was $280,000,
place to go and complain because corruption was
which is the do llar equivalent o f 1,80 0,00 0 leke. Id. at 11. everywhere. . . . I was aware that there was no constitution in
place where I could . . . have my own rights protected by
4 law.”). Fearing for her life, Marku made an early and
Marku’s testimony suggests that the Albanian law a pplies only to
private entities or to joint ventures between p ublic and p rivate entities. accurate submission of the corporate filings report. Id. at 13,
App. at 118-19 (suggesting that Sota wanted Marku to transfer the loss 61, 120, 123. After obtaining a visa in someone else’s name,
from KA VA X to the NG TCA because as a wholly public entity, the she immediately fled to the United States, leaving her
NGTCA did not have to comply with the law); id. at 17 (noting that the
state owned com pany was exempt from dissolution in the event of loss).
No. 02-4366 Marku v. Ashcroft 5 6 Marku v. Ashcroft No. 02-4366
daughters behind because she could not get a visa for them.5 33. The State Department report states further that
Id. at 13, 61, 88, 120, 125. It appears that Marku left without “[a]ccusations of corruption among public officials have been
alerting anyone in the government about Sota’s attempts at raised during each of the three governments.” Id. at 33.
corruption or threats of violence. At some point after she fled Marku also cites to an Amnesty International report which
the country, Marku’s friends back in Albania told her that mentions that a journalist had been detained after he wrote
KAVAX had been dissolved and Sota fired. Id. at 13, 61, that “corruption [and] ‘degraded politics’ might ‘explode’ in
142. However, according to these unidentified friends, after Albania.” Id. at 71.
a new government came to power in 1997, he was appointed
‘Primary Expert’ at the Ministry of Finance or the Ministry of Marku arrived in the United States on or about February 28,
Agriculture, a position similar to the one he had previously 1995, filed a timely application for asylum on November 6,
held. Id. at 13, 61, 97, 120-21, 125, 142.6 1995, and a renewed application for asylum and withholding
of removal on August 13, 1998. Pet. Br. at 3; App. at 50, 73,
Meanwhile, Marku continues to fear persecution were she 81. Marku was issued a Notice to Appear before an
to return to Albania. She writes, “It can be eas[ily] Immigration Judge (IJ) on December 11, 1997, and was
understood that many persons, [A]lbanian and Greeks, whose charged with failure to possess a “valid nonimmigrant visa or
interests were hurt, can not forgive me.” Id. at 80. She border crossing identification card at the time of application
testified that there was extensive corruption in Albania, and for admission.” App. at 81. On August 14, 1998, Marku
that she saw Sota’s corrupt activities as part of a general appeared telephonically before an IJ in Detroit. Id. at 83. She
trend. Id. at 119-20, 123. However, other than the incidents requested asylum, withholding of removal, or in the
described supra, Marku does not detail any specific instances alternative, voluntary departure. Pet. Br. at 9. On September
of corruption. To support her contentions, she cites to a State 14, 1998 and November 16, 1998, Marku appeared before the
Department report, which indicates that the judicial system in IJ to present evidence and testimony in support of her asylum
Albania is inefficient, corrupt, and subject to executive application. Pet. Br. at 9; App. at 85, 102.
pressure even when the political situation is stable. Id. at 32-
In an oral opinion on November 16, 1998, the IJ found
Marku credible but concluded:
5
According to the State De partment Repo rt upon which she relies,
shortly after Marku fled to the United States, the Office of the Interior
[T]here is insufficient evidence to establish that the
Ministry established an Internal Affairs Office to deal with citizen persecutor imputed any political claim whatsoever to the
com plaints and to uncover public corruption. App. at 33. We mention respondent. Rather, the individual directly responsible
this not because of its potential bearing on the reaso nableness o f Ma rku’s for taking action against this respondent did so as a result
fear of future p rosec ution, but so that Marku will be aware of this of his fear that she would expose his criminal and corrupt
resource, in the unlikely event that she ever finds herself in a similar
situation.
activities.
6
W hile Marku was in the United S tates, her sister also informed her
App. at 14, 18, 19. Accordingly, the IJ denied Marku’s
that someone had unsuccessfully attempted to kidnap Marku’s daughters application for asylum and withholding of removal, but did
while they were walking home from school. App. at 68. However, there grant her the privilege of voluntary departure. Id. at 21. The
is no evidence to suggest that this alleged attempt was related to the BIA dismissed the appeal on October 9, 2002, agreeing that
incidents at KAVAX . In fact, M arku testified that kidnaping of young there was “no nexus between the harm directed towards the
girls for export was a persistent p roblem in A lbania. Id. at 126.
No. 02-4366 Marku v. Ashcroft 7 8 Marku v. Ashcroft No. 02-4366
respondent and a protected ground.” Id. at 2. The BIA found Marku argues that she was and will be persecuted based on
that Sota’s attempts to harm Marku were motivated by his her political opinion, which she describes generally as an
fear that she would disclose his illegal activities and not by opposition to government corruption. Similarly, Marku
any of the statutorily protected grounds. Id. Marku appeals argues that she was and will be persecuted on account of her
the BIA’s decision, arguing that the BIA erred as a matter of membership in a “class comprised of former government
law in holding that she was not persecuted on account of her employees who directly contested government corruption.”
political opinion or membership in a particular social group. Reply Br. at 20. It is true that a number of courts have held
that opposition to government corruption can constitute a
II. DISCUSSION political opinion under particular circumstances. See, e.g., Li
Wu Lin v. INS, 238 F.3d 239, 244 (3d. Cir. 2001); Gonahasa
We must determine whether the BIA erred in holding that v. INS, 181 F.3d 538, 543 (4th Cir. 1999); Reyes-Guerrero v.
Marku is not eligible for asylum because she did not prove INS, 192 F.3d 1241, 1245 (9th Cir. 1999); Marquez v. INS,
she fears persecution on account of a ground protected by the 105 F.3d 374, 381 (7th Cir. 1997); Gonzales-Neyra v. INS,
INA. We review the BIA’s factual determinations using the 133 F.3d 726 (9th Cir. 1997); In re Desir, 840 F.2d 723, 727
substantial evidence standard, in which we uphold a BIA (9th Cir.1988). Substantial evidence, however, supports the
determination as long as it is “supported by reasonable, BIA’s finding that, in this case, Marku’s actions did not
substantial, and probative evidence on the record considered constitute an expression of political opinion and that no
as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481 political opinion was imputed to her.
(1992); Klawitter v. INS, 970 F.2d 149, 151-52 (6th Cir.
1992). Reversal of a factual determination of the BIA is only In order to demonstrate that an applicant has been
warranted when the reviewing court finds that the evidence persecuted on account of a political opinion or membership in
not only supports a contrary conclusion, but compels it. See a particular social group, it is not enough to present evidence
Klawitter, 970 F.2d at 152. We review the BIA’s conclusions that the applicant had a political opinion or was a member of
of law de novo. See Ali v. Ashcroft, 366 F.3d 407, 409 (6th that social group. See 8 U.S.C. § 1101(a)(42)(A). Evidence
Cir. 2004); Amadou v. INS, 226 F.3d 724, 726 (6th Cir. must be presented which suggests that the applicant was
2000); Adhiyappa v. INS, 58 F.3d 261, 265 (6th Cir. 1995). persecuted on account of or because of the political opinion.
Id.; see also Elias-Zacarias, 502 U.S. at 479; Klawitter, 970
An applicant for asylum must demonstrate that she is a F.2d at 152; Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 349
refugee as defined by the INA. See 8 U.S.C. (5th Cir. 2002); Ochave v. INS., 254 F.3d 859, 862 (9th Cir.
§ 1101(a)(42)(A); 8 U.S.C. § 1158(a); see also Perkovic v. 2001); Zayas-Marini v. INS, 785 F.2d 801, 805-06 (9th Cir.
INS, 33 F.3d 615, 620 (6th Cir. 1994). To establish refugee 1986). In this case, Marku’s testimony may suggest that, as
status, an alien has the burden of proving that she is unable or an ideological matter, she was opposed to government
unwilling to return to her home country “because of corruption, but she presents no evidence that any of her
persecution or a well-founded fear of persecution on account actions were ideologically motivated or that Sota, her alleged
of race, religion, nationality, membership in a particular social persecutor, perceived them as such.
group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A)
(emphasis added); see also Koliada v. INS, 259 F.3d 482, 487
(6th Cir. 2001).
No. 02-4366 Marku v. Ashcroft 9 10 Marku v. Ashcroft No. 02-4366
To start with, Marku does not claim that she ever publicly submission of accurate balance sheets, under the facts of this
opposed corruption.7 Cf. Marquez, 105 F.3d at 381 case, is not an expression of political opinion.9
(indicating that if the applicant “had spoken out repeatedly as
a public gadfly about reforming a corruption-ridden Even if Marku had demonstrated that she acted based on a
government,” this would be more likely to result in a finding political opinion, she presented no evidence that Sota
of persecution on account of political opinion). Instead, the interpreted her refusal as such. See Adhiyappa, 58 F.3d at
only evidence Marku presents (beyond her own testimony) to 267 (“[T]he motives of the asylum seeker are relevant only to
suggest that she was even opposed in principle to government the extent that they illuminate the motives of the alleged
corruption, is the fact that she refused to doctor KAVAX’s persecutors.”). Marku is not expected to provide direct proof
books. No evidence in the record, however, compels the of Sota’s motive, but must show “some evidence of it, direct
conclusion that Marku’s refusal was based on a political or circumstantial.” Elias-Zacarias, 502 U.S. at 483. Because
opinion. To the contrary, she testified that her motive for she is asking this court to reverse the determination of the
refusing to submit doctored balance sheets was her desire not BIA, the evidence must be “so compelling that no reasonable
to go to jail. App. at 117 (“I couldn’t do this personally, factfinder could fail to find the requisite fear of persecution.”
because I could be sent to jail.”); see also App. at 95 (“I Id.
couldn’t believe [Sota] that he was going to protect me . . .
[M]ost likely I was going to wind up in jail.”). Marku never As noted above, Marku presented no evidence that she ever
counseled Sota against engaging in corrupt activity, nor did denounced corruption in public or at work. She presented no
she attempt to directly expose his corruption at any time evidence that Sota believed her reason for refusing to commit
before or after leaving the country. Her actions and fraud was anything other than her desire not to go to jail.
statements suggest that she simply did not want to be Therefore, there is no evidence that Sota imputed a political
personally involved in criminal activity.8 Without more, opinion to Marku. Far from compelling the conclusion that
Sota was reacting to any political opinion, Marku’s testimony
suggests that Sota’s motives were also purely personal. App.
at 118 (suggesting that Sota was acting out of fear of losing
his job); see also Klawitter, 970 F.2d at 152 (“However
7
W hen asked whether she ever expressed a political opinion, she
distasteful his apparent treatment of the respondent may have
replied, “Of co urse, . . . I made m y criticism to certain levels of the been, such harm or threats arising from a personal dispute of
society when something went wrong, but my words went to the deaf ear this nature, even one taking place with an individual in a high
. . . .” App. at 137. M arku, however, never specified to whom she spoke governmental position, is not a ground for asylum.”); Tarubac
or the nature of her criticism. Such testimony is not “sufficiently detailed
to provide a plausible and coherent account of the basis” for her fear of
perse cution on account of po litical opinion. Perkovic, 33 F.3d at 621.
9
8
Although some courts have held that when the government
Marku may well fit into the particular social group of “former persecutes an individual who has not committed a crime, the persecution
government employees” or “former government employees who refused is presumab ly ‘on acc ount o f political opinio n,’ Hernandez-Ortiz v. INS,
to comply with their employer’s demands,” however, Marku has 777 F.2d 509, 517 (9th Cir. 1985), the presumption is rebutted when, as
presented no evidence which compels the conclusion that this makes her here, there is evidence indicating that political opinion was not the reason
particularly likely to be perse cuted in Albania. Therefore, the BIA could for the persecution. In any case, it is not clear that it would even make
not be compe lled to find that Marku had a reaso nable fear of future sense to apply this presumption where the “government” is limited to one
persecution on such a b asis. director of a quasi-public com pany.
No. 02-4366 Marku v. Ashcroft 11 12 Marku v. Ashcroft No. 02-4366
v. INS, 182 F.3d 1114, 1999 (9th Cir. 1999) (suggesting that, It is true that in these cases, the court found persecution on
although largely irrelevant in a mixed motive case, evidence account of political opinion because of the petitioners’
of a nonpolitical motivation is clearly relevant where the BIA opposition to corruption. The cases are distinguishable,
finds substantial evidence that the only motivation for the however, because unlike here, it was clear that the other
persecution was nonpolitical).10 petitioners were being persecuted because of an imputed
political opinion.
Moreover, given (a) the largely private nature of KAVAX
(it was, in part, privately owned and its mission was more In each of these cases, the petitioners were on relatively
commercial than governmental); (b) the fact that the public campaigns against wide-spread corruption. For
attempted corruption related solely to avoiding financial instance, in Reyes-Guerrero, the petitioner was investigating
disclosure obligations; and (c) the fact that the subject and prosecuting the corruption of 18 members of the Liberal
misconduct was an attempt to thwart a law which applied party, on behalf of the opposing political party. See Reyes-
only to private entities, it is unlikely that Sota believed he was Guerrero, 192 F.3d at 1243. Other than being in retaliation
even asking Marku to be a part of political or governmental for this investigation and prosecution, which, on its face, was
corruption. This makes it even less likely that Sota would inherently political, there was no other plausible explanation
interpret Marku’s refusal as being politically motivated. for the persecution which followed. See id. at 1245. The
court noted that “[t]he BIA was precisely right that [the
Marku relies on three Ninth Circuit cases for the petitioner] was ‘perceived to be “playing politics” or seeking
proposition that her actions amounted to an expression of to embarrass the Liberal Party in his attempt to obtain
political opinion. See Reyes-Guerrero, 192 F.3d at 1245; convictions of the defendants.’” Id. at 1245.
Grava v. INS, 205 F.3d 1177 (9th Cir. 2000); Desir, 840 F.2d
at 727. Of course, these cases from outside the circuit are not Similarly, in Desir, the petitioner repeatedly refused to pay
binding on us, but they do have some persuasive value. See an extortionate tax, despite each refusal’s resulting in his
Duffy v. Ford Motor Co., 218 F.3d 623, 629 (6th Cir. 2000). arrest. See Desir, 840 F.2d at 724. In so doing, he “expressly
refused to affiliate himself with a particular faction.” Id. at
729. Further, the petitioner in Desir, presented evidence that
10 he regularly met in a small group to discuss his opposition to
Marku argues that the BIA failed to properly apply a mixed motive the government “kleptocracy.” Id. at 724-25. The court
analysis. It is true that when an asylum applicant demonstrates that she
was persecuted on the basis of more than one factor, she is eligible for
concluded that it “must view [the petitioner] as possessing a
asylum so long as one of those factors is a protected ground under the political opinion because his persecutors . . . both attributed
INA. See Girma v. INS, 283 F.3d 664, 667 (5th Cir. 2002). Here, subversive views to [him] and treated him as a subversive.”
however, substantial evidence supports the BIA’s conclusion that Marku Id. at 729.11
was not pe rsecuted on the basis of any protected ground. The BIA stated
for explanatory purp oses the mo tive behind S ota’s persecution of Marku,
i.e., Sota’s fear that M arku would expo se him. The BIA did not conclude 11
that the presence of this motivation precluded it from finding that Marku In Grava, the petitioner was a custom s agent who re peatedly
was also persecuted o n the basis of a p rotected gro und. The BIA merely uncovered and reported corruption in a number of customs offices, despite
found no evidence that Marku was persecuted on any protected ground. the fact that every time he blew the whistle, he was transferred to a new
Therefore, a mixed mo tive analysis would not be appropriate in this case office. See Grava, 205 F.3d at 1179-80 . The court in Grava did not find
although it might well be under other circumstances. See Amanfi v. that there was a nexus between the petitioner’s persecution and his
Ash croft, 328 F.3d 71 9, 727 (3d C ir. 2003). asserted political opin ion. Id. at 1181. The co urt merely found that the
No. 02-4366 Marku v. Ashcroft 13
In contrast, here Marku has presented no evidence to compel
the conclusion that Sota or anyone else knew or should have
known that she was even opposed to government corruption
or had any other political opinion. Because the BIA properly
found that Marku did not demonstrate past persecution or the
likelihood of future persecution on account of a political
opinion or membership in the class of government employees
who opposed corruption, asylum is not an appropriate
remedy. Therefore, we AFFIRM the decision of the BIA and
DENY the petition for review.12
BIA erred in finding that Grava's whistleblow ing could no t, as a matter of
law, constitute an e xpression o f political opinio n. Id.
12
To qualify for withholding of deportation, an applicant must show
a “clear probability of persecution,” which is a stricter standard than the
“well-founded fear” standard that applies with respect to applications for
asylum. See INS v. Stevic, 467 U .S. 407, 430 (1984 ); see also 8 C.F.R.
§ 208.16(b)(1). Because Marku has failed to demonstrate a well-founded
fear of persecution on account of a political opinion or membership in a
particular social group, her request for withholding of deportation m ust
likewise fail. See Ali, 366 F.3d at 411-12 ; Daneshvar v. Ashcroft, 355
F.3d 615 , 625 (6th Cir. 2004).