Juncaj v. Ashcroft

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 04a0001n.06
Filed: September 30, 2004
Case No. 03-3688
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
TEREZA JUNCAJ, )
)
Petitioner, )
)
v. ) ON APPEAL FROM THE BOARD
) OF IMMIGRATION APPEALS
)
JOHN ASHCROFT , Attorney General of the United )
States of America, )
)
Respondent. )
Before: SILER, BATCHELDER, and ROGERS, Circuit Judges.
SILER, Circuit Judge. Petitioner Tereza Juncaj appeals the decision of the Board of
Immigration Appeals (“BIA”) denying her request for asylum. Juncaj argues that the Board denied
her due process of law, made a determination contrary to substantial evidence, and abused its
discretion in denying the asylum petition. We AFFIRM.
BACKGROUND
Juncaj is a 62-year-old native and citizen of Yugoslavia of Albanian ethnicity. She entered
the United States on September 18, 1992 as a non-immigrant visitor but remained longer than
authorized. Juncaj’s claim for asylum is based on her Albanian ethnicity. She claims persecution
from 1948, when her home was destroyed by the Communist regime and she was denied an
education. She alleges that her parents died as a result of persecution. She testified that she has
been detained, questioned, and beaten by members of the Yugoslav army. During one interrogation,
she said her hip was broken, causing her to walk with a limp. In her testimony before the
Immigration Judge (“IJ”), she stated that she had been raped by a uniformed Serbian army officer.
The rape occurred while she was alone, walking her livestock near a forest.
The IJ found Juncaj incredible due to inconsistencies between her asylum application and
her testimony, as well as her inability to recall the time and date of alleged events. Furthermore, the
IJ found that conditions had sufficiently changed to rebut any fear of future persecution. The BIA
issued a one-page opinion affirming the decision of the IJ. It did not resolve the issue of credibility.
Instead, it affirmed the decision because Juncaj did not adequately prove her past persecution was
based on a protected characteristic rather than “unlucky circumstance.” The BIA also noted that
the record contained “other evidence” to affirm.
DISCUSSION
We review claims of due process violations de novo. Denko v. INS, 351 F.3d 717, 726 (6th
Cir. 2003). Conversely, determinations of the BIA “must be upheld if supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” Yu v. Ashcroft, 364 F.3d
700, 702 (6th Cir. 2004). We can only reverse a decision of the BIA if the evidence “compels” such
a reversal. Mikhailevitch v. INS, 146 F.3d 384, 388 (6th Cir. 1998). Furthermore, the appropriate
inquiry is whether the evidence “was such that a reasonable factfinder would have to conclude that
the requisite fear of persecution existed.” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992).
Due Process
The BIA affirmed the decision below in a one-page opinion largely concurring with the IJ.
Juncaj asserts that affirming the decision in such a summary manner deprived her of due process of
law. While she is entitled to due process protection, Reno v. Flores, 507 U.S. 292, 308 (1993), her
case comported with such requirements. We have held that summary procedures do not violate an
alien’s right to due process, Denko, 351 F.3d at 730, but Juncaj did not receive this treatment.1
Instead, the BIA issued a short decision agreeing with the IJ and adding other reasons.
The BIA need not “write an exegesis on every contention.” Scorteanu v. INS, 339 F.3d 407,
412 (6th Cir. 2003). It is required, however, to “consider the issues raised, and announce its decision
in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not
merely that it has reacted.” Id. The BIA considered the issues and arrived at the same conclusion as
the IJ. It stated that there was not enough evidence to determine that Juncaj was persecuted based
on her ethnicity. Furthermore, any fear of future persecution had been successfully rebutted by the
government. Juncaj did not meet her burden of proof and her claim was dismissed. She was not
deprived of due process because the BIA made a reasoned conclusion after reviewing the evidence.
Eligibility for Asylum
The IJ has discretion to grant asylum to any alien who qualifies as a “refugee.” 8 U.S.C.
§ 1158(a) & (b). A refugee is someone unable or unwilling to return to her home country because
of “persecution or a well-founded fear of persecution on account of race, religion, nationality,
membership in a particular group, or political opinion.” 8 U.S.C. § 1101 (a)(42)(A). The alien has
the burden of proof and is presumed to have a well-founded fear if she suffered past persecution
based on one of the protected categories. Ouda v. INS, 324 F.3d 445, 452-53 (6th Cir. 2003). This
presumption is rebuttable if the INS proves by a preponderance that conditions in the home country
have changed “to such an extent that the applicant no longer has a well-founded fear of being
persecuted upon return.” Id. (citing Mikhailevitch, 146 F.3d at 390).
1
Summary affirmance is authorized under 8 C.F.R. § 1003.1(a)(7). Cases streamlined under
this procedure contain a two-sentence opinion reading, “This Board affirms, without opinion, the
result of the decision below. The decision below is, therefore, the final agency determination.”
Juncaj challenges the IJ’s finding that she was not credible. However, this issue is not
properly before us. We only have jurisdiction to hear issues the BIA actually addresses or adopts.
INS v. Ventura, 537 U.S. 12, 17-18 (2002) (because BIA stated that it had “not yet considered” the
issue of changed country circumstances, circuit court could not entertain it). As the BIA only
assumed credibility, rather than determined it, we cannot review the IJ’s credibility determination.
The BIA determined that Juncaj did not adequately prove that the misfortunes she suffered
occurred due to her Albanian ethnicity. Although Juncaj testified that she had been raped and pushed
by members of the army, she did not prove that it was due to her ethnicity. When asked why she had
been mistreated, she replied, “I don’t know. I do believe because I was Albanian, that’s why they
were threatening me.” Because even Juncaj cannot say for sure why she was victimized, the decision
of the BIA is supported by the record.
The BIA further held that the government sufficiently rebutted any possibility of future
persecution. To rebut this presumption, the government may offer proof either of a fundamental
change in circumstances or that the applicant could relocate to another part of the country to avoid
persecution. 8 C.F.R. §§ 1208.13(b)(1)(i)(A) & (B). The IJ and BIA relied on country reports to
make this determination, and although Juncaj argues to the contrary, reliance on these documents is
not improper. See Mersinaj v. Ashcroft, No. 03-3056, 2004 WL 1859356, at *2 (6th Cir. 2004).
Slobodan Milosevic’s removal from office was a changed circumstance, and the country report notes
that “Montenegro is now a multi-party, multiethnic, parliamentary democracy under the leadership
of President Milo Djukanovic.” This evidence is sufficient.
Juncaj also argues that the country reports were unreliable and that the IJ did not perform an
individualized analysis of the changed country conditions. These two issues, however, were not
raised before the BIA. An alien must exhaust all administrative remedies before we can properly hear
her claims. Ramani v. Ashcroft, 378 F.3d 554, 557 (6th Cir. 2004). Each individual claim must be
submitted to the BIA before we have jurisdiction to hear it. Perkovic v. INS, 33 F.3d 615, 619 (6th
Cir. 1994); Dokic v. INS, 899 F.2d 530, 532 (6th Cir. 1990). Because these two claims could have
been appealed to the BIA but were not, we do not have jurisdiction to decide them.
Abuse of Discretion in Denying Petitioner’s Claims
Finally, Juncaj argues that the IJ and the BIA abused their discretion in denying her claims
for relief. Although the BIA has broad discretion, it is not unlimited, and it cannot be exercised in
a way that is “arbitrary, irrational or contrary to law.” Daneshvar v. Ashcroft, 355 F.3d 615, 625-26
(6th Cir. 2004). The BIA abuses its discretion if it decides a case “without a rational explanation,
inexplicably departed from established policies or rested on an impermissible basis, such as invidious
discrimination.” Hazime v. INS, 17 F.3d 136, 140 (6th Cir. 1994). Juncaj largely raises the same
arguments as above, and they should be denied for the same reasons. Because the decision by the
BIA is supported by substantial evidence, it is not “arbitrary, irrational, or contrary to law.”
AFFIRMED.