Cesk Palokaj v. Eric Holder, Jr. , 510 F. App'x 464 ( 2013 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0043n.06
No. 11-4338
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jan 08, 2013
DEBORAH S. HUNT, Clerk
CESK PALOKAJ,
Petitioner,
v. ON PETITION FOR REVIEW FROM AN
OR D E R O F T H E B O ARD O F
ERIC H. HOLDER, JR., Attorney General IMMIGRATION APPEALS
Respondent.
/
BEFORE: KEITH, CLAY, and ROGERS, Circuit Judges
CLAY, Circuit Judge. Petitioner Cesk Palokaj is an Albanian national who seeks review
of a decision of the Board of Immigration Appeals denying his application for asylum under Section
208 of the Immigration and Nationality Act, and withholding of removal under the United Nations
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A.
Res. 39/46 (“CAT”). For the following reasons, we DENY the petition for review of the order of the
Board of Immigration Appeals.
BACKGROUND
Cesk Palokaj, an Albanian national, entered the United States illegally on June 14, 2005.
(Gov’t Br. at 5.) On June 16, 2005, he was given a Notice to Appear (“NTA”) by Border Patrol
agents. The NTA charged Mr. Palokaj with removability as an alien who had been neither paroled
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nor admitted, under Immigration and Nationality Act (“INA”) § 212(a)(6)(A)(i), 8 U.S.C.
1182(a)(6)(A)(i). Mr. Palokaj did not appear before the Immigration Judge, (“IJ”) and he was
ordered removed in absentia on September 25, 2005. Almost immediately afterwards, Mr. Palokaj
did appear, and accordingly, the judgment in absentia was set aside on September 27, 2005. On
September 26, 2005, Petitioner was granted a change of venue from the Immigration Court in Dallas
to the Immigration Court in Detroit. At his hearing,1 Petitioner conceded removability, but requested
asylum and protection from removal, arguing that he would be subject to persecution on the basis
of his social status were he returned to Albania. He further argued that he was entitled to protection
under the Convention Against Torture (“CAT”) because the Albanian government would not protect
him from persecution were he sent back to Albania.
Petitioner testified before the IJ that his father runs one of the largest commercial fishing
boats in Lezhe, Albania. Because of his father’s wealth, Petitioner “lived in one of the best houses
in the city of Lezhe.” Petitioner claims that his relative wealth, given the typical standard of living
in Albania, exposed him to dangerous attacks, including a kidnapping in which he was ransomed for
the equivalent of $10,000.00, perpetuated by two men who had previously attacked Petitioner at his
job.
1
Petitioner had a hearing before the IJ on December 1, 2008. The IJ found against him, and
he appealed; but the recording of the hearing was defective, so the BIA remanded the case to the IJ
for further proceedings. (Certified Administrative Record at 111, BIA Decision, Feb. 26, 2009.) The
IJ then issued a ruling which memorialized the un-recorded findings and the December 2008
decision. (See id. at 80–81, Decision and Order, July 26, 2010.) All references are to the later
proceedings unless otherwise noted.
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The IJ denied the petition on July 26, 2010. (Certified Administrative Record at 92, Opinion
and Order of United States Immigration Judge, July 26, 2010.) The IJ found that Petitioner was not
credible because his testimony was inconsistent. The IJ further found that the past incidents did not
rise to the level of “persecution,” and that they were not a result of Petitioner’s membership in a
particular social group protected under the INA. The IJ also found that Petitioner’s claim under the
CAT was without merit, because there was no credible evidence of government torture to which
Petitioner was likely to be exposed were he to be returned to Albania. Petitioner filed a timely
appeal on August 16, 2010, and the Board of Immigration Appeals (“BIA”) issued an order on
November 18, 2011, affirming the decision of the IJ. (BIA Decision, Nov. 18, 2011.) The BIA
found that “perceived wealth is insufficient to meet [Petitioner]’s burden of proof,” and that “he
ha[d] failed to establish that the Albanian government is likely to acquiesce in treatment rising to the
level of torture . . . .” Id. Mr. Palokaj now petitions this Court to overturn the decision of the BIA.
DISCUSSION
A. Standard of Review
Where the BIA has provided an explanation of its reasoning, rather than summarily affirming
or reversing the IJ’s ruling, we treat the BIA’s decision as the final agency determination. Ilic-Lee
v. Mukasey, 507 F.3d 1044, 1047 (6th Cir. 2007). Accordingly, we review the findings of the BIA
on a record that includes the decision of the IJ. Abdallahi v. Holder, 690 F.3d 467, 470–72 (6th Cir.
2012). “Questions of law are reviewed de novo, but substantial deference is given to the BIA’s
interpretation of the INA and accompanying regulations. The BIA’s interpretation of the statute and
regulations will be upheld unless the interpretation is ‘arbitrary, capricious, or manifestly contrary
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to the statute.” Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009) (internal quotation marks and
citations omitted). We review factual determinations by the BIA under the substantial evidence
standard, and will reverse only if “we find ‘that the evidence not only supports a contrary conclusion,
but compels it.’” Ceraj v. Mukasey, 511 F.3d 583, 588 (6th Cir. 2007) (quoting Marku v. Ashcroft,
380 F.3d 982, 986 (6th Cir. 2004)).
B. The Immigration and Naturalization Act
Section 208 of the INA, 8 U.S.C. § 1158(b)(1)(A), states that “[t]he Secretary of Homeland
Security or the Attorney General may grant asylum to an alien . . . if the Secretary of Homeland
Security or the Attorney General determines that such alien is a refugee within the meaning of
section 1101(a)(42)(A) of this title.” A “refugee” is defined as
[A]ny person who is outside any country of such person’s nationality or, in the case
of a person having no nationality, is outside any country in which such person last
habitually resided, and who is unable or unwilling to return to, and is unable or
unwilling to avail himself or herself of the protection of, that 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).
Therefore, in order to demonstrate that one is a refugee, and hence eligible for asylum, a
petitioner must show that he is part of one of the protected classes given in the statute, and that he
has, at the very least, “a well-founded fear of persecution” on the basis of his membership in that
group. As other circuits have phrased it, without a nexus between the purported attacks and
membership in a protected group, there can be no persecution upon which to predicate asylum. See
Handono v. Attorney General, 226 F. App’x 237, 238 (3d Cir. 2007).
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Petitioner’s claim for asylum fails at every stage of this analysis. As a general rule, perceived
wealth is not considered a social group within the meaning of the INA. See Khozhaynova v. Holder,
641 F.3d 187, 195 (6th Cir. 2011) (“A social group is a group of persons all of whom share a
common, immutable . . . [and] fundamental characteristic that either cannot be changed or should
not be required to be changed because it is fundamental to the members’ individual identities or
consciences.” (quoting Lugovyj v. Holder, 353 F. App’x 8, 10 (6th Cir. 2009) (quotation marks
omitted)). Accordingly, even if this Court accepted all of Petitioner’s representations regarding
incidents in Albania as true, and even were this Court to assume that he had a well-founded fear of
future attacks, there would still be no basis upon which to afford him asylum. And this Court should
not assume that these representations are true; the BIA affirmed the IJ’s finding that Petitioner was
not credible, a factual determination supported by substantial evidence in the record, and for which
no contrary evidence compells an alternative finding.
Petitioner also cannot claim that the facts justify a claim of persecution. Assuming that
Petitioner’s representations regarding the past incidents in Albania were true, persecution is defined
as “the infliction of harm or suffering by the government, or persons the government is unwilling
or unable to control, to overcome a characteristic of the victim.” Urbina-Mejia v. Holder, 597 F.3d
360, 365 (6th Cir. 2010) (quoting Khalili v. Holder, 557 F.3d 429, 436 (6th Cir. 2009)) (quotation
marks omitted). Petitioner may have been the victim of a crime, but he was not persecuted within
the meaning of the statute.
Petitioner also seeks withholding of removal, but to obtain a withholding, Petitioner would
have to meet an even higher burden of proof than he would in order to obtain asylum. See Pablo-
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Sanchez v. Holder, 600 F.3d 592, 594 (6th Cir. 2010); Singh v. Ashcroft, 398 F.3d 396, 401 (6th Cir.
2005) (“An alien seeking withholding of removal must demonstrate that there is a clear probability
that he will be subject to persecution if forced to return to the country of removal.” (internal
quotation marks and citations omitted)). Therefore, it is unnecessary for this Court to address his
claim for withholding of removal under the INA. See Lin v. Holder, 565 F.3d 971, 979 (6th Cir.
2009) (“Thus, an applicant who fails to establish his eligibility for asylum necessarily fails to
establish his eligibility for withholding of removal.”).
C. The United Nations Convention Against Torture
Petitioner also seeks withholding of removal under the Convention Against Torture.
Petitioners seeking protection under the Convention Against Torture must show that it is “more
likely than not that he or she would be tortured if removed . . . .” 8 C.F.R. § 1028.16(c)(1) and (2);
see, e.g., Bonilla-Morales v. Holder, 607 F.3d 1132, 1139 (6th Cir. 2010). Such torture involves
“pain or suffering . . . inflicted by, or at the instigation of, with consent or acquiescence of, a public
official or any other person acting in official capacity.” 8 C.F.R. § 1208.18(a)(1). Petitioner has not
asserted any direct conduct by the Albanian government with respect to his allegations of torture,
nor has he shown any acquiescence or complicity in torture by the government, because he never
even reported the alleged incidents to the authorities. See Kopyonkina v. Mukasey, 313 F. App’x
762, 769–70 (6th Cir. 2008) (no evidence of government complicity where it cannot be proven what
police would have done had incidents been reported).
Simply put, Petitioner has not provided any basis for his allegations except mere assertions
that he will be tortured. He cannot show government conduct or acquiescence, and he certainly does
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not provide a sufficient basis upon which to disturb the findings of the BIA. The State Department
Country Report for Albania does include areas of concern, including arrest and pretrial conditions,
but found that “[t]he government generally respected the human rights of its citizens.” (See
Administrative Record at 000196.) And the BIA properly found that the record substantiated the IJ’s
finding that Petitioner failed to establish any basis for believing that the government would torture
or acquiesce in the torture of Petitioner.
CONCLUSION
For the foregoing reasons, we DENY the petition for review of the order of the Board of
Immigration Appeals.
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