Goxhaj v. Gonzales , 216 F. App'x 547 ( 2007 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 07a0109n.06
Filed: February 8, 2007
No. 06-3075
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SHKELQIM KAMBE GOXHAJ,
Petitioner,
v. On Appeal from the
Immigration Board of
ALBERTO GONZALES, Attorney General, Appeals
Respondent.
/
Before: GUY, SUHRHEINRICH, and GRIFFIN, Circuit Judges.
PER CURIAM. Petitioner is an illegal immigrant from Albania. The former
Immigration and Naturalization Service (INS)—now part of the Department of Homeland
Security—initiated removal proceedings against petitioner. Petitioner responded by
requesting asylum, withholding of removal, protection under the Convention Against Torture
(CAT), and voluntary departure. The Immigration Judge denied petitioner’s requests, and
on December 23, 2005, the Board of Immigration Appeals affirmed without opinion.
Petitioner appeals and argues that he should be permitted to remain in the United States
because he has a well-founded fear of persecution if he is removed to Albania. For the
following reasons, we deny the petition for review.
No. 06-3075 2
I.
A. Facts
Petitioner offered the following testimony at his removal hearing in Cincinnati.
Petitioner was born in Albania in 1968. His father and sister were arrested when he was six
years old. His cousin was later arrested for political reasons and, in 1985, another cousin was
shot and killed at the Albanian border. At the age of 15, petitioner applied to attend a soccer
school, which had been his lifelong dream, but his application was denied. When he turned
eighteen, petitioner was placed in military service for two years.
On December 26, 1990, petitioner and some friends had just completed a game of
soccer in petitioner’s hometown when they decided to go downtown to relax. As petitioner
arrived in the downtown area, police began to arrive in riot gear, and a large crowd of
people—approximately 1,500—gathered in the area. The people had gathered to protest the
police and demand that the government give up power. The police began beating people and
using plastic bullets to break up the crowd. Petitioner was struck in the head, causing him
to fall down and rendering him unconscious. When he awoke, he was being transported to
a military hospital. At the hospital, he was handcuffed and was held in custody there with
approximately 200 other people from the riot. After three days at the hospital, where he
received no medical treatment, petitioner was released when a group of townspeople attacked
the hospital and freed the prisoners.
Upon his release, petitioner was afraid to return home, so he and a friend decided to
walk to the Greek border. Petitioner and his friend were fired upon by an Albanian soldier
No. 06-3075 3
as they crossed the border—petitioner explained that it was routine for Albanian soldiers to
fire upon people crossing the border—but he and his friend made it safely to Greece.
For the next ten years, petitioner lived in Greece at his father-in-law’s house. He
worked fairly regularly, but had no legal status and was occasionally forced to pay bribes in
order to prevent being sent back to Albania. In January of 2001, petitioner obtained a false
passport and flew to Mexico. He soon crossed the border into Texas and came to Columbus,
Ohio to be with his sister. The INS eventually discovered petitioner in Ohio and instituted
proceedings to have him removed from the country.
At his removal hearing, petitioner additionally asserted that his friend who
accompanied him from Albania into Greece eventually returned to Albania in 1997 or 1998
to attend his sister’s wedding. Petitioner’s friend was gunned down in front of his house by
men wearing masks. Petitioner was told by his father that his friend was killed by an
organization called BRISK, a secret paramilitary organization of the Albanian government.
Members of BRISK also came to petitioner’s house shortly after the 1990 riot in order to
collect photographs and other personal effects of petitioner. Petitioner asserts that the
situation in Albania is almost the same as it was before the 1990 riot.
B. Immigration Judge’s Decision
After recounting petitioner’s removal hearing testimony, the immigration judge
applied the facts of petitioner’s case to the law regarding asylum. The judge first considered
whether petitioner’s testimony was credible, and concluded that it was. The judge then
considered whether, by his testimony, petitioner had carried his burden of establishing that
No. 06-3075 4
he had suffered from past persecution on account of his political opinions or that petitioner
had a well-founded fear of future persecution. Despite accepting the credibility of
petitioner’s testimony, the immigration judge nevertheless concluded that petitioner had not
experienced past persecution based on his imputed political opinions. The judge explained
that the injuries petitioner incurred from the 1990 riot were a result of the generalized
violence of the riot in petitioner’s hometown and not as a result of past persecution directed
toward petitioner because of his political opinions or imputed political opinions. Instead, the
judge viewed petitioner’s injuries as the result of being “in the wrong place at the wrong
time.”
The judge also considered whether the shooting incident at the Albanian-Greece
border was evidence of past persecution. The judge determined that this incident did not
constitute past persecution because the incident merely reflected that it was dangerous for
anyone to cross the Albanian border at this time. Accordingly, the judge did not view this
as evidence of past persecution directed at petitioner.
Next, the judge considered whether petitioner had a well-founded fear of future
persecution. The judge accepted petitioner’s assertion that the same governmental leaders
that were in charge of Albania when petitioner left in 1990 are still in charge today. The
judge determined that petitioner may have a subjective fear of returning due to his friend’s
death and his fear of BRISK, but that there was no objective evidence that the Albanian
government would seek to harm petitioner. The judge noted that petitioner was not able to
explain why his friend was killed by BRISK or whether his friend’s death was linked to his
No. 06-3075 5
role in the 1990 riot. Furthermore, the judge noted that members of BRISK had not been to
petitioner’s house in 14 years and that there was no evidence that BRISK was continuing to
target petitioner or his family for persecution. Accordingly, the immigration judge concluded
that petitioner had no objective basis for fearing persecution.
For these reasons, the judge concluded that petitioner had not established eligibility
for asylum. Based on this finding, the judge also concluded that petitioner could not meet
the higher burden of proof to establish withholding of removal and that this request should
also be denied. Next, the immigration judge concluded that petitioner had presented no
testimony at all regarding the fear of torture and that petitioner’s claim under the Convention
Against Torture similarly must fail. Finally, the immigration judge denied petitioner’s
request for voluntary departure.
C. Board of Immigration Appeals
Petitioner timely appealed the immigration judge’s decision to the Board of
Immigration Appeals (BIA). On December 23, 2005, the Board affirmed without opinion
the immigration judge’s decision.
II.
A. Standard of Review
The Board of Immigration Appeal’s determination that petitioner was not eligible for
asylum must be upheld if “supported by reasonable, substantial, and probative evidence on
the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (internal
quotation marks and citation omitted). “It can be reversed only if the evidence presented by
No. 06-3075 6
[petitioner] was such that a reasonable factfinder would have to conclude that the requisite
fear of persecution existed.” Id. The Supreme Court elaborated that to reverse the BIA
finding, the court must find that the evidence not only supports a finding of persecution, but
compels it—and that the evidence also compels that petitioner had a well-founded fear that
he would be persecuted because of his political opinion. Id. n.1. A reviewing court may not
reverse merely because it would have decided the case differently. See Singh v. Ashcroft, 398
F.3d 396, 404 (6th Cir. 2005). Finally, where the BIA affirms the immigration judge’s
decision without opinion, “we review the [immigration judge’s] decision as the final agency
decision.” Hassan v. Gonzales, 403 F.3d 429, 433 (6th Cir. 2005) (internal quotation marks
and citation omitted).
B. Asylum
The Supreme Court stated the standard for granting asylum in I.N.S. v. Elias-Zacarias:
Section 208(a) of the Immigration and Nationality Act [INA], 8 U.S.C.
§ 1158(a), authorizes the Attorney General, in his discretion, to grant asylum
to an alien who is a “refugee” as defined in the Act, i.e., an alien 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.” § 101(a)(42)(A),
8 U.S.C. § 1101(a)(42)(A).
502 U.S. at 481 (1992). In United States v. Cardoza-Fonseca, the Supreme Court explained
that the well-founded-fear standard includes both a subjective and an objective component,
and also that the standard is less than a “more likely than not” standard. 480 U.S. 421, 431
(1987). Petitioner argues that the immigration judge failed to properly apply the legal
standard for asylum. We disagree.
No. 06-3075 7
The immigration judge considered petitioner’s testimony and determined that
petitioner was credible. The judge then applied the facts of petitioner’s case to the proper
legal standard for asylum and concluded that petitioner’s testimony did not support a finding
either of past persecution or of a well-founded fear of future persecution. The judge
explained that petitioner exhibited a subjective fear of being persecuted if he returns to
Albania, but that the limited facts presented in petitioner’s testimony, without further
evidence of persecution directed at petitioner, did not sufficiently support a finding of a well-
founded fear of persecution. See Liti v. Gonzales, 411 F.3d 631, 640 (6th Cir. 2005) (“While
recognizing that corroboration is not required, we have also stated that even if the applicant
is credible, ‘[t]he absence of [reasonably available] corroborating evidence can lead to a
finding that an applicant has failed to meet her burden of proof.’”) (citations omitted)
(alterations in original). We have considered petitioner’s testimony and the appropriate legal
standards for asylum, and we find that the district court’s decision to deny asylum was
supported by substantial evidence from the record.
C. Withholding of Removal
As to petitioner’s request for withholding of removal, the immigration judge
concluded that “[b]ecause [petitioner] has not satisfied the lower burden of proof for asylum
the Court finds that [petitioner] has not established his higher burden of proof for
withholding of removal . . . .” We agree.
No. 06-3075 8
D. Convention Against Torture (CAT) and Voluntary Departure
Petitioner devoted his brief to the issue of asylum and did not present any additional
arguments as to how the immigration judge erred in denying petitioner’s CAT claim or
request for voluntary departure. We have reviewed the immigration judge’s analysis of these
issues and find both that the analysis was supported by substantial evidence and was without
error.
The petition for review is DENIED.