Bicja v. Immigration & Naturalization Service

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0018n.06
Filed: January 6, 2005
No. 03-3049
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ROBERT MIHLLAQ BICJA, )
)
Petitioner, )
)
v. )
)
IMMIGRATION AND NATURALIZATION ) ON PETITION FOR REVIEW OF AN
SERVICE, ) ORDER OF THE BOARD OF
) IMMIGRATION APPEALS
Respondent. )
)
)
Before: NORRIS and COOK, Circuit Judges; BECKWITH, District Judge.*
COOK, Circuit Judge. Petitioner Robert Bicja seeks review of a final order of removal.
Because substantial evidence supports the IJ’s determinations, we deny the petition for review.
I. Facts
Bicja, a citizen of Albania, entered the United States as a non-immigrant visitor for pleasure.
Bicja remained in the United States after his visa expired, and the INS initiated removal proceedings
*
The Honorable Sandra S. Beckwith, United States District Judge for the Southern District
of Ohio, sitting by designation.
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Bicja v. INS
against him. Conceding removability, Bicja maintained that his eligibility for asylum warranted
relief from removal.
Bicja testified that he and his family suffered mistreatment under the former Communist
regime, including confinement in an internment camp for approximately seven years when Bicja was
a young child. Years after his release from the camp, Bicja won admittance to Albania’s Art
Institute. But the Institute expelled him after three weeks because it discovered his family’s past
imprisonment.
Later, Bicja joined the youth forum of the Democratic Party and became active in the
Democratic movement. Bicja also joined the Association of Formerly Politically Persecuted
Democrats.1 Bicja insists that he endured arrests and beatings, as well as an attempt on his life,
because of his political involvement with these organizations.
Although the IJ viewed Bicja’s testimony “in the best light,” despite credibility concerns,
he nonetheless concluded that Bicja failed to establish either past persecution or a well-founded fear
of future persecution. Consequently, the IJ denied Bicja’s request for asylum. The IJ further found
Bicja ineligible for withholding of removal and relief under the Convention Against Torture, but
granted his alternative request for voluntary departure.
1
Bicja also refers to this association as the Formerly Politically Persecuted Persons
Association.
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Bicja appealed the IJ’s decision to the Board of Immigration Appeals, which affirmed
without opinion. Because the Board adopted the decision of the IJ in lieu of issuing its own opinion,
we review the IJ’s decision as the final agency decision. Abay v. Ashcroft, 368 F.3d 634, 637-38
(6th Cir. 2004); Denko v. INS, 351 F.3d 717, 726 (6th Cir. 2003).
II. Analysis
A. Asylum
Bicja challenges the IJ’s denial of his request for asylum. We must uphold the IJ’s
determination if “reasonable, substantial, and probative evidence on the record considered as a
whole” supports it. Mikhailevitch v. INS, 146 F.3d 384, 388 (6th Cir. 1998) (citations and internal
quotation marks omitted). To demonstrate eligibility for asylum, an applicant must first prove that
he qualifies as a refugee either because he suffered past persecution or because he has a well-
founded fear of future persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion. Id. at 389. If an applicant successfully establishes past
persecution, he is presumed to have a well-founded fear of future persecution rebuttable only by a
showing that country conditions “have changed to such an extent that the applicant no longer has
a well-founded fear of being persecuted if he were to return.” Id. (citation and internal quotation
marks omitted).
1. Past Persecution
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The IJ concluded that Bicja failed to satisfy his burden regarding past persecution. Though
he believed Bicja’s account of his arrests and beatings, he deemed Bicja’s assertion that political
reasons motivated the incidents unconvincing. Applying the deferential substantial evidence
standard, we may grant Bicja’s petition for review only if his evidence ‘“not only supports a
contrary conclusion, but indeed compels it.”’ Id. at 388 (quoting Klawitter v. INS, 970 F.2d 149, 152
(6th Cir. 1992).
Here, the IJ doubted that the Democratic Party-powered government would target members
of the youth forum of the Democratic Party or that the Association of Formerly Politically
Persecuted Democrats was sufficiently political to incite the government to harm its members.
Because nothing in the record compels us to reach a different conclusion, we must uphold the IJ’s
determination. See Mullai v. Ashcroft, 385 F.3d 635, 638 (6th Cir. 2004) (upholding denial of
asylum where the applicant’s treatment by the government “could be reasonably viewed as
motivated by her status as a protestor rather than religious persecution”).
2. Well-Founded Fear of Future Persecution
The IJ similarly rejected Bicja’s claim that he feared future persecution. Because Bicja failed
to establish past persecution, he retained the burden of proving a well-founded fear of future
persecution that was both subjectively genuine and objectively reasonable. Mikhailevitch, 146 F.3d
at 389. The IJ concluded that changed country conditions in Albania prevented Bicja from
satisfying this burden. Specifically, the IJ noted that the Socialist Party now controls Albania and
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that Bicja presented no evidence that the current Socialist leaders persecute members of the political
groups to which Bicja belonged.
The United States Department of State country reports, included in the administrative record,
support the IJ’s conclusions. Bicja disputes the reports’ characterization of conditions in Albania.
But this circuit has recognized that such reports generally represent “the best source of information
on conditions in foreign nations.” Mullai 385 F.3d at 639 (citation and internal quotation marks
omitted). Accordingly, we have relied on them when reviewing an IJ’s decision, notwithstanding
their imperfections. Id. Doing so here, we agree that Bicja “has not demonstrated that the current
government controlled by the Socialist Party would target [him] for persecution,” Id. We must,
therefore, uphold the IJ’s determination that Bicja failed to establish a well-founded fear of future
persecution.
Because substantial evidence supports the IJ’s conclusion that Bicja neither suffered past
persecution nor has a well-founded fear of future persecution, it follows that the IJ correctly denied
asylum.2
B. Due Process
Bicja also argues that the IJ violated his due process rights by cutting off his testimony,
questioning Bicja from the bench, disallowing a witness’s testimony, and demonstrating bias. We
2
Because Bicja fails to prove eligibility for asylum, he necessarily fails to satisfy the more
stringent standard for withholding of removal. Koliada v. INS, 259 F.3d 482, 489 (6th Cir. 2001).
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review de novo Bicja’s due process claims premised on the IJ’s hearing procedures. Castellano-
Chacon v. INS, 341 F.3d 533, 552-53 (6th Cir. 2003); Ivezaj v. INS, 84 F.3d 215, 220 (6th Cir.
1996).
“It is well established that the Fifth Amendment entitles aliens to due process of law...” Reno
v. Flores, 507 U.S. 292, 306 (1993). Accordingly, the Constitution guaranteed Bicja a full and fair
hearing. Huicochea-Gomez v. INS, 237 F.3d 696, 699 (6th Cir. 2001). “To constitute fundamental
unfairness, however, a defect in the removal proceedings must have been such as might have led to
a denial of justice.” Id. (citations and internal quotation marks omitted). Thus, Bicja must not only
demonstrate that the IJ erred, but must also identify specific prejudice resulting from the error.
Castellano-Chacon, 341 F.3d at 553.
Bicja alleges that by interrupting him and limiting his answers, the IJ prevented him from
fully explaining his history of abuse. But the IJ permitted Bicja to testify with lengthy narratives
during direct examination, giving Bicja ample opportunity to describe his alleged persecution.
“[T]he IJ did no more than exercise his quasi-judicial powers to control the pace of the hearings, and
to focus the hearings on relevant matters.” Ivezaj, 84 F.3d at 220.
Bicja also maintains that the IJ “improperly took over the role of prosecutor in cross-
examining” him. Bicja concedes the IJ’s entitlement to question a witness, however, and we find
nothing in the IJ’s manner of questioning that rises to the level of a due process violation.
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Nor do we find fault in the IJ’s refusal to hear cumulative testimony from one of Bicja’s
witnesses. Bicja informed the IJ that his witness would testify that she knew Bicja’s family and
confirm Bicja’s membership in the Association of Formerly Politically Persecuted Democrats. After
considering Bicja’s response, the IJ expressed doubt as to the witness’s utility but left room for
Bicja’s counsel to further advocate the witness’s value: “I really don’t see anything that [the witness]
is going to add unless you can think of something.” Bicja’s counsel declined to advance additional
arguments on the issue, and we cannot conclude that the IJ erred. Moreover, even assuming error,
we deem any error harmless in view of Bicja offering no more than “general statements” that he
suffered prejudice. Castellano-Chacon, 341 F.3d at 553. We also reject Bicja’s contention that the
IJ manifested bias towards him or his case. Reviewing the entire hearing transcript for context, we
discern no evidence of bias.
Finding that Bicja received a full and fair hearing, we conclude that he suffered no violation
of his due process rights.
C. BIA Affirmance Without Opinion
Finally, Bicja challenges the BIA’s use of summary affirmance procedures under 8 C.F.R.
§ 1003.1(e). We disagree that the BIA’s treatment of this case violated the regulations. Moreover,
because we review the IJ’s decision directly, “our ability to conduct a full and fair appraisal of
[Bicja’s] case is not compromised.” Denko, 351 F.3d at 732 (citations and internal quotations
omitted).
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III. Conclusion
Because substantial evidence supports the IJ’s denial of asylum in this case, and because
Bicja’s hearing comported with due process, we deny the petition for review.
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