Dritarja v. Gonzales , 226 F. App'x 462 ( 2007 )

File Name: 07a0218n.06
Filed: March 26, 2007
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
No. 06-3599
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ELENA DRITARJA,
Petitioner,
v. ON APPEAL FROM THE
BOARD OF IM M IGR ATION
ALBERTO GONZALES, Attorney General of the APPEALS
United States,
Respondent.
/
OPINION
Before: KENNEDY, MARTIN, and SUTTON, Circuit Judges.
BOYCE F. MARTIN, JR., Circuit Judge. Petitioner Elena Dritarja appeals from an adverse
decision of the Board of Immigration Appeals regarding her petition for asylum and other relief from
removal.
I
Dritarja is a native and citizen of Albania, where, according to her testimony, she and her
family were persecuted on account of their Serbian ethnicity. Dritarja’s petition for asylum
specifically focused on two troubling incidents. First, on December 24, 2001, while she and her
parents were preparing to celebrate the Christmas holiday at their family home, a police officer
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accompanied by three civilians invaded the home, assaulted Dritarja and her mother, and arrested
her father. Her father was held in jail for two days without being charged, where he was tortured and
severely beaten before being released.
The second incident occurred on June 18, 2002, when Dritarja was walking to the grocery
store to buy some oil and sugar for her mother. Three men pulled up beside her in a white Mercedes
and forced her into the car at gunpoint. They drove for roughly thirty minutes and brought Dritarja
to an abandoned house, where she was forcibly raped by two of her assailants. While driving her
back from the house, the men told Dritarja that her family should return to Serbia and her father
should withdraw from the political organization of which he was a member (the Moraca-Rozafa, an
association of ethnic Serbians and Montenegrins living in Albania). The men dropped her off
approximately two kilometers from her house, and she later informed her mother what had happened.
Her mother helped treat the physical injuries she had suffered from the rape, and arranged for
Dritarja to leave the country.
Dritarja’s parents paid $15,000 for her to be smuggled with a fake passport into the United
States. Dritarja claims to have entered the United States through John F. Kennedy Airport in New
York on August 2, 2002. She affirmatively applied for asylum on March 5, 2003, but this petition
was denied. She was subsequently served with a notice to appear and charged with removability.
She sought relief in the form of asylum, withholding of removal, and protection under the
Convention Against Torture. Her case was removed from New York to Detroit, where her requested
relief was denied by an immigration judge. The judge ruled that Dritarja could not establish that she
had applied for asylum within one year of her arrival in the United States, as there was no
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documentary evidence of her date of entry, despite affidavits from both of her parents that placed her
in Albania less than a year prior to the time she affirmatively filed for asylum. The immigration
judge also made an adverse credibility finding with regard to Dritarja’s claim that she had been
raped. The judge relied on what she deemed to be Dritarja’s inconsistent explanations about why
her father was arrested and whether she told her father about the rape, varying pronunciations used
by Dritarja to name the leader of Moraca-Rozafa, and Dritarja’s demeanor during her testimony, as
well as the assertion in State Department country reports concluding that Serbians and Montenegrins
were not persecuted in Albania. For example, according to the immigration judge, Dritarja’s claim
that she did not tell her father of the rape was contradicted by an affidavit, submitted by Dritarja’s
mother, stating: “she told us that she had been raped . . . .” (Emphasis added.) The judge concluded
that Dritarja “quite simply submitted no evidence that any harm will come to her from the
government of Albania because of any basis which she has articulated in her application.”
The Board of Immigration Appeals affirmed and adopted the decision of the immigration
judge, finding that “there are not exceptional circumstances to overcome the respondent’s failure to
timely file her application for asylum,” and that “without credible testimony the respondent is not
eligible for withholding of removal or relief under the United Nations Convention Against Torture.”
Dritarja now appeals from the Board’s order.
II
A. Asylum Claims
Dritarja’s allegations of the treatment to which she and her family were subjected are
obviously troubling. However, we must defer in large part to the immigration judge’s adverse
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credibility determination. Moreover, in light of the immigration judge’s determination that Dritarja’s
petition for asylum was untimely, we are without jurisdiction to review this aspect of the claim. See
Almuhtaseb v. Gonzales, 453 F.3d 743, 746-48 (6th Cir. 2006). We would have jurisdiction to
review the denial of asylum if it implicated any constitutional claims, such as a due process violation,
or matters of statutory construction. Id. at 748. Yet Dritarja makes no such claims, nor are any due
process violations apparent to us. Because we lack jurisdiction, we cannot review Dritarja’s asylum
claim and accordingly dismiss it.
B. Withholding of Removal and Convention Against Torture Claims
We are not similarly barred from reviewing Dritarja’s other claims for relief, and thus we
address them in somewhat greater detail. In order to be granted withholding of removal, an applicant
“must provide evidence showing that there is a ‘clear probability’ that his or her life would be
threatened on account of race, religion, nationality, membership in a particular social group, or
political opinion.” Ben Hamida v. Gonzales, No. 06-3134, 2007 U.S. App. LEXIS 5258, at *20 (6th
Cir. Mar. 7, 2007). This involves a standard that is substantively similar but more burdensome for
an applicant to meet than a claim for asylum. Id. To gain relief under the Convention Against
Torture, an applicant must show that it is more likely than not that she will be tortured upon return
to her country. Id. at *21. The immigration judge and the Board premised their rejection of both of
Dritarja’s claims on the adverse credibility determination, declining to assess whether her allegations
would show a clear probability of persecution, or a likelihood of torture, if taken as true.
Factual findings, including adverse credibility determinations, are reviewed under the
substantial evidence standard, and “are conclusive unless any reasonable adjudicator would be
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compelled to conclude to the contrary.” Id. at *4 (quoting 8 U.S.C. § 1252(b)(4)(B)). We review
the immigration judge’s opinion directly where its reasoning is adopted by the Board, as occurred
here. Id. Although few of the inconsistencies upon which the immigration judge based her adverse
credibility determination are profound when taken alone, in light of their cumulative effect, we
cannot say that we are compelled to reach a contrary conclusion regarding Dritarja’s credibility. See
Birbili v. Gonzales, No. 05-3941, 2006 U.S. App. LEXIS 28281, at *6 (6th Cir. Nov. 13, 2006)
(“[T]his case appears to fall into the category of asylum cases in which the bases for the immigration
judge’s adverse credibility determination are not overwhelming, but which are not so deficient as
to compel a contrary result, as is required under the applicable standard of review.”).
Several of the issues identified by the immigration judge can be viewed as attempts by
Dritarja to “enhance” her claims of persecution, which supports their use in an adverse credibility
determination. See Ramaj v. Gonzales, 466 F.3d 520, 527 (6th Cir. 2006). Specifically, the
immigration judge ruled that when first questioned about the arrest of her father, Dritarja said that
she did not know why he was arrested. At the hearing, however, she said that it was a result of his
participation in a pro-Serbian political group. There is good reason to believe that this change in
Dritarja’s story, minor as it may seem, reflected an effort to construct a meritorious asylum claim.
The immigration judge also specifically noted that during her testimony, Dritarja appeared to be
“reciting a learned script.” This type of first-hand observation is the very reason that we defer to
finders of fact. Further, the inconsistencies between Dritarja’s account of telling only her mother
about the rape and the statement in her mother’s affidavit that Dritarja told “us” (as in both parents)
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about the attack might on the one hand be a relatively minor inconsistency, but on the other could
be indicative of a failed attempt by the family to fabricate a story.
These several points might not necessarily convince us that Dritarja was lying, or that we
would have made the same decision as the immigration judge, but that is not our standard of review
in a case such as this. And even if we were to believe Dritarja, we cannot say that she has met the
high standard required for relief in this case: namely, showing a clear probability that she will be
persecuted, or that it is more likely than not she will be tortured, upon her return to Albania.
III
For the above reasons, we dismiss Dritarja’s petition for review of her time-barred asylum
claim, and we affirm the Board’s denial of her requests for withholding of removal and relief under
the Convention Against Torture.