Volaj v. Gonzales , 158 F. App'x 683 ( 2005 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0937n.06
Filed: November 29, 2005
No. 04-3900
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MIRASH VOLAJ, et. al., )
)
Petitioners-Appellants, )
) ON APPEAL FROM THE
v. ) BOARD OF IMMIGRATION
) APPEALS
ALBERTO R. GONZALES, )
)
Respondent-Appellant. )
)
BEFORE: KEITH, SUHRHEINRICH, and CLAY
DAMON J. KEITH, Circuit Judge. Mirash Volaj (“Mr. Volaj”), his wife, Pranvera, and
their son Ardit (collectively “the Volajs” or “petitioners”) petition for review of the denial of their
claim for asylum. For the reasons set forth below, we DENY the petition for review.
I. BACKGROUND AND STATEMENT OF CASE
Mr. Volaj was born in Broje, Albania on June 10, 1961. (Joint Appendix (“J.A.”) at 59).
Mr. Volaj is an Albanian citizen. On November 14, 2000, Mr. Volaj and his family entered the
United States in Orlando, Florida on false documents from Slovenia. (J.A. at 68-73). At the airport,
the Immigration and Naturalization Service (“INS”)1 conducted credible fear interviews with Mr.
and Mrs. Volaj. Mrs. Volaj testified that she came to the United States for a better life and freedom.
She did not express any fear about the Albanian government or police. She simply stated that she
1
Pursuant to the implementing regulations of the Homeland Security Act of 2002, the
functions of the Immigration and Naturalization Service have been transferred to the Department
of Homeland Security. 68 F.R. § 9824 (Feb. 28, 2003).
Volaj v. Gonzales
Case No. 04-3900
Page 2 of 11
wanted to be in the United States because she had a poor life in Albania. While interviewing Mr.
Volaj, he attested that he left Albania because of a land dispute with his neighbor.
On June 28, 2002, Mr. Volaj filed an application for asylum. (J.A at 86-99). Mr. Volaj’s
story in his application for asylum differed from the story he and his wife gave to the immigration
officials at the airport. In his asylum application, he stated that he was seeking asylum based on his
membership in a particular social group (J.A. at 90), and he alleged that he was afraid of being
beaten or murdered by the Albanian government if he returned and attempted to retrieve his land
(J.A.at 91).
On April 18, 2003, an immigration judge in Detroit, Michigan held a hearing on Volaj’s
petition for asylum.2 The immigration judge consolidated Volajs’ asylum petitions into one case.
(J.A. at 47). During the hearing Mr. Volaj testified that he came from a large, wealthy family that
owned half of the land in his village before the Communist Party took over. He testified further that
when the communist party took over, it confiscated his family’s land and converted it into a
commune. At the end of the communist regime, Mr. Volaj’s family members recouped their land.
Mr. Volaj, however, did not obtain any of his land. In attempting to reacquire his land, Mr. Volaj
alleges that the Albanian police beat and harassed him. Id.
Mr. Volaj recounted three incidents where the police beat and harassed him. On September
14, 1998, when he attempted to retrieve his land the police allegedly beat him with rubber sticks on
the back of his head and fingers. (J.A. at 62). He was hospitalized from the beating. (J.A. at 62-64).
Mr. Volaj submitted medical records to support his injury from the police beating. On June 20, 1999
2
On July 11, 2001, venue was changed from Orlando, Florida to Detroit, Michigan.
Volaj v. Gonzales
Case No. 04-3900
Page 3 of 11
and September 18, 2000, Mr. Volaj also made attempts to have his land returned. On both occasions
the police beat him. (J.A. at 66-67). In addition to the beatings, he was threatened by civilians
working as secret police. (J.A. at 68). Over the course of three years, Mr. Volaj apparently made
seven attempts to get his land back.
In an attempt to corroborate his testimony, Mr. Volaj proffered three exhibits. The first
exhibits were affidavits and certificates verifying the Volajs’ membership in the Society of Ex-
Politically Persecuted Persons. The second exhibit explained the medical treatment he received after
the September 14, 1998 incident. The third exhibit was an affidavit attesting that someone has been
occupying his land for ten years and has a large amount of weapons stored on the property. (J.A.
at 27-28).
After hearing the evidence, the immigration judge found that the Volajs’ claims amounted
to a well-founded fear of a neighbor who was threatening Mr. Volaj regarding his attempts to
recover his land and did not amount to a claim for asylum. (J.A. at 40). The immigration judge
found that there were too many inconsistencies in the evidence. In particular, the immigration judge
found that Mr. Volaj’s testimony was not credible because it directly contradicted his wife’s
testimony in her credible fear interview at the airport. The immigration judge denied the Volajs’
petitions for asylum.
On April 28, 2003, the Volajs filed a motion to appeal the immigration judge’s decision. On
June 15, 2004, the Board of Immigration Appeals (“BIA”) summarily affirmed the immigration
judge’s decision without an opinion. On July 12, 2004, the Volajs petitioned this Court for review
of the BIA’s denial of his petition for asylum.
Volaj v. Gonzales
Case No. 04-3900
Page 4 of 11
II. JURISDICTION
This Court has jurisdiction pursuant to the Immigration and Nationality Act (“I.N.A.”) §
1252(a)(1) to review final orders of removal. 8 U.S.C. § 1252(a)(1). The BIA’s decision affirming
the immigration judge’s decision without an opinion is considered a final agency determination. See
Hasan v. Ashcroft, 397 F.3d 417, 419 (6th Cir. 2005) (citing 8 C.F.R. § 1003.1(e)(4)(ii)).
II. ANALYSIS
This Court reviews the decision of the immigration judge directly when the BIA affirms the
immigration judge’s decision without an opinion. Singh v. Ashcroft, 398 F.3d 396, 401 (6th Cir.
2005); Hasan v. Ashcroft, 397 F.3d 417. The denial of a petition for asylum is reviewed to
determine whether the immigration judge’s decision is supported by substantial evidence.
Daneshvar v. Ashcroft, 355 F.3d 615, 624 (6th Cir. 2004). Under this standard, this Court must
uphold the immigration judge’s findings as long as they are “supported by reasonable, substantial,
probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992). Reversal of a factual determination is only warranted when the reviewing court finds that
the evidence not only supports a contrary conclusion, but compels it. Dorosh v. Ashcroft, 398 F.3d
397, 381 (6th Cir. 2004); Mullai v. Ashcroft, 385 F.3d 635, 638 (6th Cir. 2004); Klawitter v. INS,
970 F.3d 149, 152 (6th Cir. 1992).
Petitioners appeal the denial of their asylum application on three grounds: (1) there was
credible evidence to support their petition for asylum; (2) they did not receive a fair review of their
case; and (3) the BIA improperly affirmed the immigration judge’s decision without an opinion.
A. Petition for Asylum
Volaj v. Gonzales
Case No. 04-3900
Page 5 of 11
The Attorney General has discretion under the INA to grant asylum to a “refugee.” INA §
208(b), 8 U.S.C. § 1158(b). A refugee is defined as a person who is unable or unwilling to return
to his home country “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). “Disposition of an application for asylum requires a two-step inquiry: first,
whether the petitioner is a ‘refugee’ within the meaning of the statute, and second, whether the
petitioner merits a favorable exercise of discretion by the Attorney General.” Perkovic v. INS, 33
F.3d 615, 620 (6th Cir. 1994) (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 428 n.5 (1987)).
In order to demonstrate that the Volajs qualify as refugees, they must establish either that
they have suffered actual past persecution or that they have a well-founded fear of future
persecution. Mikhailevitch v. INS, 146 F.3d 384, 389 (6th Cir. 1998); 8 C.F.R. § 208.13(b) (2004).
This Court has held that “persecution” within the meaning of § 1101(a)(42)(A) “requires more than
a few isolated incidents of verbal harassment or intimidation, unaccompanied by any physical
punishment, infliction of harm, or significant deprivation of liberty.” Mikhailevitch, 146 F.3d at
390. An applicant who establishes past persecution is presumed to have a well-founded fear of
future persecution. Id. at 389; 8 C.F.R. § 208.13(b)(1)(i).
An alien may establish a well-founded fear of future persecution by demonstrating: (1) that
he has a fear of persecution in his home country on account of race, religion, nationality,
membership in a particular social group, or political opinion; (2) that there is a reasonable possibility
of suffering such persecution if he were to return to that country; and (3) that he is unable or
unwilling to return to that country because of such fear. Mikhailevitch, 146 F.3d at 389; 8 C.F.R.
Volaj v. Gonzales
Case No. 04-3900
Page 6 of 11
§ 208.13(b)(2)(i). A well-founded fear of persecution thus has both a subjective and an objective
component: an alien must actually fear that he will be persecuted upon return to his country, and he
must present evidence establishing an “objective situation” under which his fear can be deemed
reasonable. Perkovic, 33 F.3d at 620-21. “A well-founded fear of persecution does not require the
applicant to show that he probably will be persecuted if he is deported.” Id.There is substantial evidence to support the immigration judge’s determination that the
Volajs did not present credible evidence in support of their petition for asylum and failed to meet
their burden to establish a well-founded fear of past or future persecution.
1. Substantial Evidence Supported the Adverse Credibility Determination.
The immigration judge found that the Volajs did not present credible evidence in support of
their claim for asylum. Credibility determinations are considered findings of fact and are reviewed
under the substantial evidence standard. Yu v. Ashcroft, 364 F.3d 700, 703 (6th Cir. 2004). The
substantial evidence standard is deferential, and the decision must be upheld if it is “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)). This Court must affirm the
immigration judge's determination unless “the evidence not only supports a contrary conclusion, but
indeed compels it.” Csekinek v. INS, 391 F.3d 819, 822 (6th Cir.2004). The credibility
determination “must be supported by specific reasons,” and “[a]n adverse credibility finding must
be based on issues that goes to the heart of the applicant's claim.” Sylla v. INS, 388 F.3d 924, 926
(6th Cir. 2004); 8 U.S.C. § 1252(b)(4)(B) (stating that a credibility determination is conclusive
unless any reasonable factfinder would be compelled to conclude to the contrary).
Volaj v. Gonzales
Case No. 04-3900
Page 7 of 11
The immigration judge found that there were many inconsistencies in the evidence presented
in support of the Volajs’ asylum claim. The main inconsistency was between the testimony that
Mrs. Volaj gave at her credible fear interview at the airport and in the Volajs’ petition for asylum
and Mr. Volaj’s testimony at the asylum hearing.
In her credible fear interview, Mrs. Volaj testified that she was attempting to enter the United
States for a better life and freedom. (J.A. at 140). She indicated that she was afraid to go back
because they had a very poor life in Albania. Further, she admitted that her family did not have any
problems with the Albanian government. (J.A. at 144). In Mr. Volaj’s credible fear interview, he
stated that his old neighbors would kill him if he went back to Albania because he had a fight about
the farmland. (J.A. at 137). The immigration judge found the prior testimony of his wife to be
entirely credible. (J.A. at 42).
Two years after the credible fear interview, in the petition for asylum Mr. Volaj stated that
he was seeking asylum based on his membership in a particular social group. He indicated that he
was afraid that the Albanian authorities would beat or murder him. He alleged that his fear was
based on the last three times he made contact with the Albanian authorities and they threatened to
kill him. (J.A. at 91).
In his testimony at the asylum hearing, he testified about three incidents where the police
beat him. The Volajs attribute the inconsistencies in their testimony to their fear of retaliation if they
were sent back to Albania and problems with the interpreter. The immigration judge found no
evidence or testimony to substantiate why the Albanian authorities would beat Mr. Volaj. (J.A. at
Volaj v. Gonzales
Case No. 04-3900
Page 8 of 11
40). After hearing all of the evidence, the immigration judge found that at best Mr. Volaj testified
credibly that he was involved in a land dispute with his neighbor. (J.A. at 39).
Overall, Volaj’s testimony could be viewed as inconsistent and not credible. The credibility
issues go to the heart of their claim for asylum. Sylla v. INS, 388 F.3d 924, 926 (6th Cir. 2004)
(stating that an adverse credibility finding must be based on issues that goes to the heart of the
applicant’s claim). Thus, there was substantial evidence to support the immigration judge’s denial
of asylum.
2. Eligibility for Asylum
Assuming that the Volajs proffered credible evidence, there was substantial evidence to
support the denial of their petition for asylum. The Volajs could not prove either that they suffered
actual past persecution or that they have a well-founded fear of future persecution.
First, the Volajs cannot establish that they were a part of a protected group. The immigration
judge did not discuss this in the deportation order. The Volajs alleged that they were members of
the Society of Ex-Politically Persecuted Persons. The immigration judge consulted the publication,
Albania: Profile of Asylum Claims3 (“the Profile”), which was proffered by the government at the
asylum hearing. (J.A. at 127). The Profile indicates that asylum seekers cite this nonprofit
organization often in support of asylum claims. This organization provides benefits such as
education, employment, and financial assistance to its members. This does not conclusively
establish membership in a persecuted social group. See In the Matter of Acosta, 19 I. & N. Dec. 211,
3
This publication is produced by the Department of State’s Office of Country Reports and
Asylum Affairs for use by the Executive Office of Immigration Review and the Immigration and
Naturalization Service in assessing asylum claims. (J.A. at 125).
Volaj v. Gonzales
Case No. 04-3900
Page 9 of 11
233, 1985 WL 56042 (B.I.A. Mar. 1, 1985) (stating that a particular social group is a group of
persons all of whom share a common immutable characteristic).
Second, the immigration judge found that the Volajs could not establish a well-founded fear
of persecution because their main claim “center[ed] around his fear of a neighbor who [was]
threatening regarding [sic] him trying to recover his land which were [sic] confiscated by the
Communist.” (J.A. at 40). The immigration judge found that this was a case of economic refugees
coming to the United States. He stated that asylum claims are not for economic refugees.
Accordingly, he could not authorize the Volajs to stay in the United States under the asylum laws
simply because they are looking for a better life. (J.A. at 44). The immigration judge found that
even if the Albanian government has failed to recoup the Volajs land back for them, this would not
be a well-founded fear of persecution.
C. Fair Review of Asylum Claim
For the first time on appeal, the Volajs raise the claim that the immigration judge was
prejudiced and unfair. On appeal to the BIA, the Volajs only argued that there was credible
evidence to support the immigration judge granting his petition for asylum. (J.A. at 9-10). This
Court does not have jurisdiction to review claims where the petitioner failed to exhaust
administrative remedies. Perkovic, 33 F.3d at 619; Harchenko, 379 F.3d 405, 407 (6th Cir. 2004)
(citing Harchenko v. INS, 22 Fed. Appx 540, 543 (6th Cir. 2001)).
Even if this Court had jurisdiction, the immigration judge has broad discretion to control the
administration of deportation proceedings, as long as the alien receives a full and fair hearing under
the Fifth Amendment. Scorteanu v. INS, 339 F.3d 407, 413 (6th Cir. 2003) (citations omitted). See
Volaj v. Gonzales
Case No. 04-3900
Page 10 of 11
also Aguilar-Solis v. INS, 168 F.3d 565, 568 (1st Cir. 1999) (stating that immigration judges, like
other judicial officers, possess broad discretion over the conduct of trial proceedings.”). A review
of the record shows no evidence that the Volajs were prejudiced or that the immigration judge did
not give them a full and fair hearing.
D. The BIA properly Streamlined the Decision of the Immigration Judge
The Volajs contend that the BIA erred when it summarily affirmed the immigration judge’s
decision denying their petition for asylum without an opinion. They state that the use of
streamlining in this case was inappropriate because the immigration judge’s decision was incorrect,
his errors were not harmless, and that this case raised substantial issues that warranted a written
opinion.
8 C.F.R. § 1003.1(e)(4) provides that a single member of the BIA may affirm an immigration
judge’s decision without stating the basis for affirmance. In Denko v. INS, 351 F.3d 717, 721 (6th
Cir. 2003), this Court fully addressed due process violations and upheld the streamlining process as
constitutional.
More recently, in Rreshpja v. Gonzales, 420 F.3d 551, 558 (6th Cir. 2005), this Court
declined to decide whether the decision to streamline the petitioner’s case was reviewable where no
novel factual or legal questions were presented. Id. at 558 (citing Chen v. Ashcroft, 378 F.3d 1081,
1086-87 (9th Cir. 2004) (holding that the BIA lacked the authority to streamline a petitioner’s appeal
because no BIA or federal court precedent squarely controlled the legal issue presented and the
issues raised on appeal were substantial)). See also Smirko v. Ashcroft, 387 F.3d 279 (3d Cir. 2004)
(holding that the BIA’s summary affirmance without opinion was erroneous where a novel issue of
Volaj v. Gonzales
Case No. 04-3900
Page 11 of 11
statutory construction was presented); Hauod v. Ashcroft, 350 F.3d 201 (1st Cir. 2003) (holding that
the BIA summary affirmance without opinion was erroneous where the BIA did not provide a reason
for departing from its own precedent).
Like Rreshpja, this case does not present a novel fact or legal question, nor is there any
deviation from regulatory requirements that would affect the requirements for establishing asylum.
This case presents a straightforward asylum claim, which the BIA properly streamlined.
III. CONCLUSION
For the reasons stated above, we DENY the petition for review.