Abeshi v. Mukasey ( 2008 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0019n.06
Filed: January 8, 2008
No. 06-4187
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Vaniel Abeshi, )
) ON APPEAL FROM THE BOARD
Petitioner-Appellant, ) OF IMMIGRATION APPEALS
)
v. )
)
Michael V. Mukasey,* )
)
Respondent-Appellee, )
Before: KEITH and CLAY, Circuit Judges; STEEH, District Judge.**
STEEH, District Judge. Vaniel Abeshi (“Petitioner”), a citizen of Albania, appeals the
Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen his application for
asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”).1
For the reasons that follow, we AFFIRM.
*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Michael B. Mukasey, is
automatically substituted for former Attorney General Alberto R. Gonzales.
**
The Honorable George Caram Steeh, United States District Judge for the Eastern
District of Michigan, sitting by designation.
1
Although petitioner asserted in his brief that he also sought review of the denial of the
application itself, his petition for review appealed only the “Decision of the BIA, Board of
Immigration Appeals, entered August 10, 2006, dismissing Petitioner’s Motion to Reopen,” J.A.
631, and thus is the only claim before this court.
I. Background
Petitioner entered the United States from Albania on July 28, 1999, without a valid entry
document. His parents both entered the same year with valid visitor’s visas. On September 20,
1999, Petitioner’s father, Niko Abeshi, applied for asylum, withholding of removal, and
protection under the CAT. Petitioner was included on the application as a derivative applicant.
When an asylum officer with the INS determined that Niko’s eligibility for asylum had
not been established, the case was referred to the immigration court for consideration of the
asylum application as well as the BIA’s charges of removability.2 On November 3, 2004, the
Immigration Judge (“IJ”) denied Niko’s application for asylum and withholding of removal
pursuant to §§ 208 and 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158,
1231(b)(3), and protection under the CAT pursuant to 8 C.F.R. § 1208.16(c)(2). The judge
found that Niko was not credible and as lead applicant, he did not establish eligibility for relief or
protection for himself or his family. The Abeshis appealed that decision, and the BIA dismissed
the appeal on March 2, 2006.3 Petitioner did not petition for review of the denial of the
applications for asylum, withholding of removal, and protection under the Torture Convention.
2
Under 8 C.F.R. §§ 208.14(d), 208.19, an asylum officer may either grant the application
or refer it to an immigration judge for hearing. The immigration judge, located in the Executive
Office for Immigration Review (“EOIR”) in the Department of Justice, considers the application
de novo under 8 U.S.C. § 1229(a)(1); 8 C.F.R. §§ 208.14(d), 208.19, 1208.13. The Board (also
in the EOIR) hears appeals from the judge’s decisions. 8 C.F.R. §§ 1240.1(a)(1), 1240.15.
3
Vaniel’s parents, meanwhile, had filed a motion to remand to apply for adjustment of
status on the basis of a resident relative (their daughter was or had become a U.S. citizen), and
the BIA granted the parents’ motion to remand. This had no impact on Vaniel.
2
Instead, on April 7, 2006, Petitioner4 filed a timely motion to reopen proceedings pursuant to 8
C.F.R. § 1003.2, asserting the existence of new evidence and changed circumstances. Finding he
had failed to establish a prima facie case of eligibility for the underlying relief sought, the BIA
denied that motion.
Petitioner filed his petition for review on September 6, 2006, within 30 days of the BIA’s
denial of the motion to reopen, as required for appeal of that decision under 8 U.S.C. §
1252(b)(1).
II. Motion to Reopen
A. Standard of Review
The denial of a motion to reopen is reviewed for an abuse of discretion. See Denko v.
INS, 351 F.3d 717, 723 (6th Cir. 2003) (citing INS v. Doherty, 502 U.S. 314, 324 (1992)). This
can be demonstrated when the IJ or BIA does not give a “rational explanation, inexplicably
departs from established policies, or rests on an impermissible basis such as invidious
discrimination against a particular race or group.” Balani v. INS, 669 F.2d 1157, 1161 (6th Cir.
1982).
B. Discussion
Petitioner’s brief on appeal states his claims on appeal to be whether the IJ improperly
found no past persecution of Petitioner; whether the IJ improperly denied Petitioner’s application
for asylum (I-589); whether Petitioner was given a fair review of his Appeal; and whether the
4
The motion was filed independently by Vaniel, and did not address the applications of
Niko or Qeti Abeshi.
3
BIA improperly denied Petitioner’s motion to reopen. Petitioner’s Final Brief, p. 2. The entirety
of Petitioner’s “statement of the facts” is:
Petitioner’s family was persecuted in Albania, initially on the basis that
they were wealthy merchants, and later due to their political activities.
These elements of his father’s attempt to regain the family’s confiscated
properties and his political activities caused Petitioner’s persecution since he was
8 years old. When Petitioner was 8 years old, he was kidnapped in 1997 due to
his father’s political activities.
The family suffered many threats from 1997 to 1999, when they left
Albania. Petitioner’s father during these 2 years was beaten and the family’s store
was blown up after they had received threats that it would indeed be blown up.
Petitioner’s Final Brief, p. 4. Petitioner then generally attacks the IJ’s findings, recites testimony
given at the hearing, and argues reasons to conclude Niko’s testimony was credible. These
details do not bear repeating here, given out findings set forth below.
Petitioner’s brief is largely devoted to his argument that substantial evidence did not
support the IJ’s decision to deny his father’s asylum application and claim for protection under
the Torture Convention; he also asserts that the IJ’s “extreme prejudice” caused her to come to an
unfair decision. Petitioner asserts that his family’s testimony and other evidence presented
demonstrated a well founded fear of persecution, and that the IJ’s credibility findings were
erroneous. However, as the government correctly contends, citing Stone v. INS, 514 U.S. 386,
405-406 (1995), and Rreshpja v. Gonzales, 420 F.3d 551, 559 (6th Cir. 2005), this Court has
jurisdiction only over the denial of reopening because petitioner did not petition for review of the
BIA’s denial of relief and protection.
4
The BIA’s order dismissing the appeal of the IJ’s decision was entered on March 2, 2006.
As described above, Petitioner filed a timely motion to reopen that decision on April 7, 2006.5
The BIA’s denial of Petitioner’s motion to reopen was issued on August 10, 2006. He filed his
petition for review of the dismissal of the motion to reopen with this court on August 29, 2006,
and explicitly wrote in that petition that it was the decision on the motion to reopen he was
challenging. J.A. 631. As noted by the government, such motions do not toll the thirty-day
period in which he could seek judicial review of the order of removal. Stone, 514 U.S. at 394.
Under these circumstances, we are without jurisdiction to review the decision on the asylum
application and claim for protection under the CAT.
Concerning the motion to reopen, the government correctly points out that Petitioner has
not made any developed argument on this claim. The Petitioner’s sole paragraph on this issue is
as follows:
the BIA abused their discretion first by their incorrect analysis of the IJ’s decision
and secondly by not finding a prima facie case for asylum by Petitioner based
upon an erroneous finding of lack of credibility by Petitioner’s father rather than
lack of prima facie case upon the claim as written.
Petitioner’s brief, pp. 17-18 (same wording on each page). It is asserted by the government that
Petitioner’s “argument” is so perfunctory that the issue has been waived. Respondent’s brief, p.
23, citing United States v. Johnson, 440 F.3d 832, 845-46 (6th Cir. 2006). Although it appears to
the Court that denial of the appeal on this basis alone would be appropriate, we will address
petitioner’s remaining arguments below.
5
Pursuant to 8 U.S.C. § 1229a(c)(7)(C)(I), a motion to reopen must be filed within 90
days of the date of entry of a final administrative order of removal. See also 8 C.F.R. §
1003.2(c)(2). Petitions for court review of such orders, however, must be filed within 30 days. 8
U.S.C. § 1252(b)(1).
5
A motion to reopen removal proceedings to apply for new relief must establish prima
facie eligibility for that relief. See INS v. Abudu, 485 U.S. 94, 104 (1988); In re Gutierrez-Lopez,
21 I. & N. Dec. 479, 482 (BIA 1996). Establishing a prima facie case of eligibility “requires the
applicant to produce objective evidence showing a reasonable likelihood that he can establish
that he is entitled to relief. Sevoian v. Ashcroft, 290 F.3d 166, 175 (3rd Cir. 2002) (citation
omitted); accord Ordonez v. INS, 345 F.3d 777, 785 (9th Cir. 2003); In re SV, 22 I. & N. Dec.
1306, 1308 (BIA 2000) (en banc) (a prima facie case of eligibility must reveal a reasonable
likelihood that the requirements for relief have been satisfied).
The BIA may deny a motion to reopen “even if the party moving has made out a prima
facie case for relief.” 8 C.F.R. § 1003.2(a). That regulation further provides that a motion to
reopen removal proceedings “shall not be granted unless it appears to the Board that evidence
sought to be offered is material and was not available and could not have been discovered or
presented at the former hearing....” 8 C.F.R. § 1003.2(c)(1); Sako v. Gonzales, 434 F.3d 857, 863
(6th Cir. 2006). Put another way, evidence must be presented to convince the BIA that “if
proceedings before the immigration judge were reopened...the new evidence offered would likely
change the result in the case.” Matter of Coelho, 20 I. & N. Dec. 464, 473 (BIA 1992) (citing
Doherty, 502 U.S. at 724-25).
Petitioner did not meet these requirements in this case. He supported the motion to
reopen with his own asylum application form, a family certificate, a copy of a March 2006
affidavit by Bernd J. Fischer, History Professor and Chair at Indiana University, asserted to be an
expert in Albanian affairs, and extracts of materials from the respondent’s prior asylum
proceedings. J.A. 8-36. None of these items was either material or unavailable at the prior
6
hearing. The BIA found that Petitioner had failed to establish a prima facie case of eligibility for
the relief sought. Specifically, the BIA stated that the Petitioner had “[failed] to address the
credibility concerns in the respondent’s prior asylum proceeding...[i]nasmuch as the new
evidence and arguments presented by the [Petitioner] are insufficient to meaningfully challenge
the Immigration Judge’s prior adverse credibility finding, the [Petitioner] has failed to establish a
prima facie case of eligibility for the underlying relief sought.” J.A. 3.
An examination of the motion to reopen and the attached materials confirm that the
motion merely reiterated the dismissed claims made in his father’s application. The BIA’s
determination that the Petitioner’s submission “fail[ed] to address the credibility concerns in the
respondent’s prior asylum proceeding....” cannot be said to be an abuse of discretion. Neither
Petitioner’s documents nor the historical and political situation in Albania, as described by
Professor Fischer, addressed the inconsistencies found by the IJ in Niko’s testimony and his
application, which the IJ determined were fatal to his claims. Accordingly, we AFFIRM the
BIA’s denial of Petitioner’s motion to reopen.
7