Duhanaj v. Gonzales

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0722n.06
Filed: October 9, 2007
No. 06-4173
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
TOMO DUHANAJ, )
)
Petitioner, ) ON PETITION FOR REVIEW
) OF AN ORDER OF THE
v. ) BOARD OF IMMIGRATION
) APPEALS
ALBERTO GONZALES, Attorney General, )
)
Respondent. )
__________________________________________
BEFORE: GILMAN and GRIFFIN, Circuit Judges; and ACKERMAN, District Judge.*
GRIFFIN, Circuit Judge.
Petitioner Tomo Duhanaj (“Petitioner”), an ethnic Albanian and native and citizen of the
Kosovo region of Serbia-Montenegro, has filed this petition for review of an adverse decision and
order of the Board of Immigration Appeals (“BIA”), affirming the decision of an immigration judge
(“IJ”) denying petitioner’s application for asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”).1 For the reasons set forth below, we deny Duhanaj’s petition
for review of the final order of the BIA.
*
The Honorable Harold A. Ackerman, Senior United States District Judge for the District of
New Jersey, sitting by designation.
1
United Nations Convention Against Torture and Other Cruel, Inhumane or Degrading
Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85; 8 C.F.R. § 208.18.
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I.
Petitioner Tomo Duhanaj is an ethnic Albanian of Roman Catholic faith and a citizen of
Serbia-Montenegro. He was born on January 19, 1970, in Kosovo, Yugoslavia. Petitioner entered
the United States illegally on June 19, 2002, and shortly thereafter was arrested by the Department
of Homeland Security (“DHS”). On June 20, 2002, the Immigration and Naturalization Service
(“INS”) issued a Notice to Appear, charging petitioner with being subject to removal pursuant to
section 212(a)(6)(A)(i) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(a)(6)(A)(i),
as an alien present in the United States without being admitted or paroled.
On May 27, 2003, petitioner submitted an application for asylum, withholding of removal,
and protection under the CAT to the immigration court in Detroit, Michigan. Petitioner, through
counsel, conceded removability, but alleged past persecution and a well-founded fear of future
persecution in his application. Specifically, petitioner stated that he feared future persecution and
torture by Serbians, Muslims, and other ethnic Albanians of differing political views if returned to
Kosovo, based on his status as a Catholic Albanian and member of the Albanian Christian Party of
Kosovo (the Partia Shqiptare Demokristiane e Kosoves or “PShDK”).
A removal hearing commenced on February 1, 2005. At the hearing, petitioner testified that
for most of his life, he was active in the movement for equal rights and independence for Albanians
in Kosovo. He testified to three discrete instances of alleged past persecution, stating that the first
such instance occurred on June 17, 1985, when he was arrested, detained for at least twelve hours,
beaten periodically, and threatened with physical harm or death after participating in a demonstration
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in the city of Kline, Kosovo, for a “Republic of Kosava.” Duhanaj testified that as a consequence
of his political activities, he was barred by school authorities from attending high school and
thereafter devoted his time to working for freedom for Kosovo.
The second incident of alleged persecution occurred in October of 1986, when petitioner was
talking with students about politics in the schoolyard of the Kline high school. The police were
called when school officials realized that petitioner was not a student at the school. Petitioner was
taken into police custody and questioned for several hours about his presence at the school, his
previous arrest, and his political activities. Duhanaj alleged that he was beaten and released with the
threat that he would be killed if he continued to oppose the government.
Petitioner and his fiancee, Prende Duhanaj, were married in November 1986. They lived
briefly in Kline, Kosovo, before traveling to and illegally entering the United States. Petitioner and
his wife stayed in this country for more than two years, during which time a daughter was born.
Duhanaj and his family thereafter returned to Kosovo because he believed that political tensions had
“cooled down.” When he arrived, however, he perceived that the Serbians were taking away the
rights of ethnic Albanians, excluding them from government jobs, and exercising greater control
over Kosovo. Petitioner was conscripted into military service in the Yugoslavian army and was, on
one occasion, punished for speaking his native language. He was discharged from the military in
October 1990 and returned to Kosovo to join his family.
Duhanaj testified that in the ensuing year, the Serbian forces began forcible searches of the
homes of ethnic Albanians. His house was searched in July 1991, and the police confiscated pro-
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Albanian photos, books, and pamphlets. Petitioner testified that he was detained for three or four
days, interrogated about the propaganda and his political activities, and severely beaten, to the extent
that he allegedly suffered fractures to his left hand and swelling in his face, eyes, legs, and hands.
While he was in custody, the police again went to his home, destroyed items in the house, and
threatened his wife and family.
After this incident, petitioner and his wife and daughter traveled to Germany, where his wife
applied for and was granted a United States visa. Petitioner’s wife and daughter entered the United
States in October 1991, and petitioner, lacking valid travel documents, remained in Europe for
another ten months, spending time in Germany and with family members in Switzerland before again
reentering the United States from Mexico without being admitted or paroled. Once here, petitioner
traveled to Detroit to join his wife and daughter. Duhanaj testified that at no point during his stays
in the United States did he apply for asylum, because he believed that the political situation in
Kosovo would improve and he would be able to return to his home country.
In Michigan, petitioner became involved with pro-Kosovo political organizations and joined
the local branch of the Lidhja Demokratike e Kosoves (“LDK”), the Democratic Party of Kosovo,
with which he had been affiliated in Kosovo. Duhanaj testified that he participated in fundraising
and demonstrations for the cause of a free Kosovo. After the war broke out in Kosovo in 1998, he
attended a meeting in Michigan sponsored by the LDK and the Kosovo Liberation Army (“KLA”).
Substantial funds totaling approximately $150,000 were raised at the meeting, and petitioner was
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entrusted with keeping the money at his house.2 Petitioner eventually left the LDK and joined
“Homeland Calling,” an Albanian expatriate organization. He also began an association with the
KLA.
In 1999, the United Nations (“UN”) assumed control of the Kosovo region. In the spring of
2001, Duhanaj returned to Kosovo, with the intention that his wife and child would join him in the
future. Petitioner met with the former KLA leader and the heads of several other political parties.
He joined the PShDK. Petitioner testified that, although the conflict with Serbia had calmed due to
the UN’s intervention, Albanians began fighting among each other. The KLA and other political
parties accused the PShDK of collaborating with the Serbians and not supporting the war. Muslim
Albanians believed that Catholic Albanians and the PShDK were allied with the Serbians, who were
Orthodox Christians. Thus, other ethnic Albanians with different political views began to harass
petitioner. Duhanaj alleged that after a meeting of the PShDK in 2002, he was accosted and pistol
whipped by two men, who ordered him to leave the party within one week or he would be killed.
In April 2002, after this incident, petitioner left Kosovo for the final time and was arrested upon his
illegal entry into the United States.
At the removal hearing, Duhanaj testified that it was his position in a political party other
than the ruling party that made him a target for abuse if he returned to his home country. He added
that his Roman Catholic faith placed him at odds with other Christian and Muslim Albanians and
2
Petitioner claimed that while in possession of the funds, he was threatened by individuals
claiming to be from the KLA.
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was a potential source of future persecution upon his return to Kosovo. Petitioner submitted
documentary evidence in support of his asylum application, including photographs of himself,
family, and various political leaders, letters written on his behalf, and political paraphernalia.
Newspaper articles described political infighting among ethnic Albanians in Kosovo and violence
and intimidation against Albanians associated with the LDK and KLA. Petitioner also submitted
photos of himself with prominent Kosovar Albanian, American, and UN officials and politicians,
including President Clinton.
At the conclusion of the removal hearing on February 25, 2005, the IJ rendered an oral
decision denying Duhanaj’s applications for asylum, withholding of removal, and protection under
the CAT. With regard to petitioner’s asylum claim, the IJ found that petitioner had not carried his
burden of demonstrating that the alleged incidents of persecution actually transpired and, even if
such events did occur, they did not rise to the level of past persecution. Even assuming arguendo
that Duhanaj suffered past persecution and thus was entitled to a rebuttable presumption of future
persecution, the IJ further concluded that the presumption was rebutted by evidence of Duhanaj’s
return trips to Kosovo and improved country conditions following UN intervention in 1999, which
indicated that there was no longer a pattern or practice of political persecution in Kosovo against any
group that petitioner might claim as a basis for asylum. The IJ concluded that petitioner possessed
neither an objective nor subjective well-founded fear of future persecution. The IJ also denied
Duhanaj’s claims for humanitarian asylum, withholding of removal, and protection under the CAT
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on the grounds that Duhanaj had failed to satisfy the applicable stringent burdens of proof necessary
to prevail on these claims.
The IJ’s decision turned not only upon the perceived lack of credibility of Duhanaj, but also
upon the lack of corroborating evidence. The IJ noted that petitioner’s wife could have corroborated
at least one of petitioner’s arrests and could have testified to the injuries he suffered as a result of the
alleged incidents of persecution; however, no reasons were given for her failure to appear or to
submit an affidavit. Likewise, petitioner’s parents, also living in the Detroit area, could have offered
supporting evidence concerning petitioner’s alleged expulsion from school, as well as his first arrest
and other claims material to his applications, but they did not do so, and no explanation for this
failure was offered by petitioner.
The IJ noted similarly with regard to the proffered documentary evidence that the letters in
support of petitioner were written by individuals in the Detroit area who could have, but did not,
testify. These letters were not executed under oath and no chain of custody was established. The
sources of the documents and letters from Kosovo were never identified by petitioner; thus, without
further chain-of-custody verification or authentication, this evidence was given no weight by the IJ.
These materials were found by the IJ to be lacking in relevant detail, including dates, legible
signatures, and identifications. One exhibit, received into evidence without objection, indicated that
Duhanaj had used several aliases to obtain a fake Michigan driver’s license and a fraudulent
passport. The IJ further found inherent inconsistencies and lack of corroboration in petitioner’s
account of the discrete incidents of persecution. The Department of State Country Reports offered
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by petitioner negated his claim, showing no pattern or practice of persecution of members of any
group situated similarly to petitioner and indicating that the head of the Kosovo government at the
time of the hearing was an ethnic Albanian. For these reasons, the IJ denied petitioner’s application
for relief, and he was ordered removed to Serbia-Montenegro.
On August 2, 2006, the BIA, in a brief one-member decision, affirmed the decision of the
IJ and dismissed petitioner’s appeal, emphasizing principally Duhanaj’s failure to provide adequate
corroboration for his claims:
The [IJ] correctly found that respondent failed to meet his burden of proof because
he did not provide sufficient corroboration for certain alleged facts pertaining to the
specifics of his claim where it was reasonable to expect such evidence (I.J. at 12-13,
32-33). See Matter of M-D-, 21 I & N Dec. 1180 (BIA 1998) (an alien who does not
provide sufficient evidence to corroborate his claim of persecution, where it is
reasonable to expect such evidence, fails to meet his burden of proof); see also
Matter of S-M-J-, 21 I & N Dec. 722 (BIA 1997) (an asylum applicant should provide
documentary support for material facts which are central to his claim and easily
subject to verification). Specifically, he did not provide any corroborative testimony
by his wife or parents, all of whom are key witnesses to his alleged incidents of past
harm. Such corroborating testimonies were reasonably available to the respondent
because his wife and parents reside in the Detroit area. Furthermore, he does not
provide any explanation, either before the Immigration Court [or] on appeal, for the
absence of their testimonies. Due to [petitioner’s] failure to produce such
corroborating testimonies or to satisfactorily explain their absence, we find that he
has failed to meet his burden of proof for asylum, withholding of removal, or
protection under the [CAT].
In addition, citing Matter of Chen, 20 I & N Dec. 16 (BIA 1989), the BIA considered and
rejected Duhanaj’s contention that he was entitled to humanitarian asylum pursuant to 8 C.F.R. §
1208.13(b)(1)(iii) due to the alleged severity of his past persecution, finding that any mistreatment
was not of the gravity necessary to warrant such humanitarian relief.
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Duhanaj now petitions this court for review of the BIA’s order denying his appeal.
II.
We review de novo issues of law, Csekinek v. INS, 391 F.3d 819, 822 (6th Cir. 2004), and
scrutinize the factual findings of the BIA, including credibility determinations, using the highly
deferential substantial evidence standard, which provides that the administrative findings of fact “are
conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” Yu
v. Ashcroft, 364 F.3d 700, 702 (6th Cir. 2004) (quoting 8 U.S.C. § 1252(b)(4)(B)). In other words,
reversal of a factual determination by the BIA is warranted only when we find that the evidence not
only supports a contrary conclusion, but compels it. Dorosh v. Ashcroft, 398 F.3d 379, 381 (6th Cir.
2004). To the extent that the BIA adopted the IJ’s reasoning, we review the IJ’s decision. Singh v.
Ashcroft, 398 F.3d 396, 401 (6th Cir. 2005).
III.
Duhanaj first argues that the BIA erred in denying his application for asylum for lack of
corroborating evidence. He complains that in holding that he failed to provide sufficient
corroborating evidence where it was reasonable to expect such evidence, the BIA has imposed an
insurmountable corroboration requirement to the effect that no matter the existence of evidence
supporting an applicant’s claim, an asylum application now can be denied based upon the absence
of other evidence that, in the view of the BIA, is relevant. Duhanaj contends that the evidence of
record compels the conclusion that petitioner was credible and corroborated adequately his claims
of past persecution and a well-founded fear of future persecution. Duhanaj suggests that, although
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the threat from Serbians has subsided, he is reasonably fearful of harm from other ethnic Albanians
who disagree with his Catholic faith and political affiliations. At the very least, Duhanaj contends,
conditions in Kosovo have not improved in the region to such an extent that it is now safe for asylum
applicants to return there.
Pursuant to the INA, asylum may be granted to an alien who qualifies as a “refugee,” which
is defined as one “who is unable or unwilling to return to . . . [his or her 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.” Selami v. Gonzales, 423 F.3d 621,
625 (6th Cir. 2005) (quoting 8 U.S.C. §§ 1158(b)(1), 1101(a)(42)(A)). An asylum applicant bears
the burden of demonstrating that “persecution is a reasonable possibility should he be returned to his
country of origin.” Perkovic v. INS, 33 F.3d 615, 620 (6th Cir. 1994) (internal citation omitted). If
past persecution is established, then the alien is presumed to have a well-founded fear of future
persecution. Ouda v. INS, 324 F.3d 445, 452 (6th Cir. 2003). The government may rebut the
presumption by showing by a preponderance of the evidence that “since the persecution occurred,
conditions in the applicant’s country have changed to such an extent that the applicant no longer has
a well-founded fear of being persecuted upon return.” Id.; see also 8 C.F.R. § 208.13(b)(1)(i).
Even if an applicant has failed to establish past persecution, he may still be able to show a
well-founded fear of future persecution through proof that: (1) he fears persecution in his home
country on account of race, religion, nationality, membership in a particular social group, or political
opinion; (2) there is a reasonable possibility of suffering such persecution if he returned to his home
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country; and (3) he is unable or unwilling to return because of such fear. 8 C.F.R. § 208.13(b). A
well-founded fear of future persecution has both subjective and objective components: “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 (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 430-31 (1987)). Moreover, the
applicant must show that the feared persecution would be on account of a qualifying ground. Id. at
621.
Corroborating evidence of an applicant’s claims is not essential in all circumstances to enable
the applicant to prevail on an asylum claim. “The testimony of the applicant, if credible, may be
sufficient to sustain the burden of proof without corroboration.” 8 C.F.R. §§ 208.13(a) (asylum
proceedings), 208.16(b) (withholding of removal). In Dorosh, we examined the meaning of these
regulations, stating:
The BIA has interpreted this permissive language to mean that “where an alien’s
testimony is the only evidence available, it can suffice where [it] is believable,
consistent, and sufficiently detailed to provide a plausible and coherent account of
the basis of the alien’s alleged fear.” In re M-D-, 1998 WL 127881, 21 I & N Dec.
1180, 1182 (BIA 1998) (citing Matter of Dass, 1989 WL 331876, 20 I & N Dec. 120,
124 (BIA 1989)). However, the BIA has also stated that “where it is reasonable to
expect corroborating evidence for certain alleged facts pertaining to the specifics of
an applicant’s claim, such evidence should be provided. . . . The absence of such
corroborating evidence can lead to a finding that an applicant has failed to meet her
burden of proof.” In re S-M-J-, 1997 WL 80984, 21 I & N Dec. 722, 724-26 (BIA
1997).
398 F.3d at 382.
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In Dorosh, we “expressly approv[ed]” the BIA’s corroboration rule and rejected the
petitioner’s argument, made in the present case as well, that the BIA corroboration rule should be
applied only in cases in which the applicant’s credibility is questioned or adversely determined, not
in cases in which the testimony of the applicant is deemed credible. Id. We noted that the BIA’s
corroboration rule does not unduly burden the applicant, because “supporting documentation must
be provided only if it is of the type that would normally be created or available in the particular
country and is accessible to the alien, such as through friends, relatives, or co-workers.” Id. at 382-
83 (internal quotation marks omitted).
Here, the IJ and BIA properly applied the corroboration rule to the evidence presented by
Duhanaj. It was entirely reasonable to expect Duhanaj to elicit some form of corroboration, either
in the form of testimony or affidavits, from his wife and parents, who lived in the Detroit area in
close proximity to the immigration proceedings. According to petitioner’s own version of events,
they were witnesses to some of the alleged acts of past persecution and thus could have offered
enlightening testimony regarding the alleged discrete acts of persecution. Duhanaj, however, never
explained his failure to produce these readily available corroborating witnesses.
Moreover, as the IJ noted, the documentary evidence provided by petitioner was inadequately
corroborated and authenticated. The IJ engaged in a detailed analysis of the proffered documents
and letters, observing that such evidence was unsworn, often undated, vague, and inconsistent with
petitioner’s testimony. Again, such corroboration should have been expected, because many of the
materials came from individuals in the Detroit area who could have either testified or offered
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affidavits in support of petitioner. Thus, as the IJ noted, petitioner’s affiliation with the numerous
pro-Kosovo political organizations was never firmly established.
Under the circumstances, we conclude that the IJ’s adverse credibility determination and
resultant finding that Duhanaj failed to demonstrate past persecution in Serbia-Montenegro are
supported by substantial evidence. Moreover, even assuming arguendo the demonstration of past
persecution, the IJ did not err in holding that the evidence of changed country conditions and
Duhanaj’s actions in returning three times to Kosovo overcame the presumption of a well-founded
fear of future persecution if returned to his home country.
The 2003 DOS Country Report on Human Rights Practices in Serbia and Montenegro, made
a part of the record in the instant case, noted that “[a]lthough some problems persisted, the
[Montenegran] and Serbian governments’ policies toward minorities improved greatly since
Milosevic’s removal from office.” In fact, the report reflects significant improvement in human
rights conditions for ethnic Albanians in Kosovo following UN intervention in 1999. With regard
to freedom of religion, the DOS Report observed that “[d]ifferences between Muslim and Catholic
communities tended to be overshadowed by their common ethnic Albanian heritage,” and further
noted that “Kosovo has a multi-party system with three dominate mono-ethnic Albanian parties and
several minority parties and coalitions.” See also Duhani v. Gonzales, 214 F. App’x 541, 546 (6th
Cir. 2007), Grishaj v. Gonzales, 192 F. App’x 493, 497 (6th Cir. 2006), and Rasi v. Gonzales, 179
F. App’x 284, 289 (6th Cir. 2006) (finding insufficient the ethnic Albanian petitioners’ fears of
future persecution in light of improved country conditions in Serbia-Montenegro following UN
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intervention in 1999). Thus, the IJ’s conclusion that petitioner does not have a well-founded fear
of future persecution if returned to Serbia-Montenegro is supported by substantial evidence.
IV.
Next, Duhanaj maintains that the BIA erred in failing to consider his eligibility for
humanitarian asylum based upon “a reasonable possibility that he . . . may suffer other serious harm
upon removal to that country.” 8 C.F.R. § 1208.13(b)(1)(iii)(B) (“Subsection B”). Although the IJ
and the BIA considered and rejected petitioner’s humanitarian asylum claim on the alternative
ground set forth in 8 C.F.R. § 1208.13(b)(1)(iii)(A) (“Subsection A”), which provides that
discretionary humanitarian asylum may be granted if the applicant “has demonstrated compelling
reasons for being unwilling or unable to return to the country arising out of the severity of the past
persecution,” petitioner’s eligibility for relief under the “other serious harm” prong of Subsection
B was not expressly addressed. Duhanaj, however, is not entitled to relief under either prong of the
humanitarian asylum regulation because we have made it clear that relief under both Subsections A
and B is contingent upon a showing of past persecution. Hamida v. Gonzales, 478 F.3d 734, 740-41
(6th Cir. 2007); Liti v. Gonzales, 411 F.3d 631, 641-42 (6th Cir. 2005). Consequently, Duhanaj’s
failure to demonstrate past persecution is fatal to his claim for asylum on humanitarian grounds.
V.
Finally, Duhanaj asserts that the BIA erred by denying his applications for withholding of
removal and protection under the CAT. We disagree.
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An alien may secure withholding of removal if he can show that his “life or freedom would
be threatened in that country [to which he would be sent] because of the alien’s race, religion,
nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A);
8 C.F.R. § 208.16(b). The petitioner must establish a “clear probability” that his life would be
threatened on account of one of the stated grounds if forced to return to his home country. Hamida,
478 F.3d at 741. Because this burden of proof is more stringent than that required to establish
eligibility for asylum, an applicant who fails to qualify for asylum necessarily cannot meet the
requirements for withholding of removal. Id. In light of our conclusion that Duhanaj does not
qualify for asylum, his claim for withholding of removal is without merit.
To be eligible for protection under CAT, the applicant must establish “that it is more likely
than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R.
§ 208.16(c)(2). Duhanaj has offered no evidence whatsoever that torture, as defined in 8 C.F.R. §
208.18(a)(2), is more likely than not to occur upon his return to Serbia-Montenegro. His claim for
relief under the CAT therefore cannot succeed. See Hamida, 478 F.3d at 741-42.
VI.
For the above stated reasons, we deny Duhanaj’s petition for review.
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