Erkocaj v. Gonzales

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0200n.06
Filed: March 18, 2005
No. 03-4517
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
LEJLA ERKOCAJ, FLAMUR ERKOCAJ, and ) ON PETITION FOR REVIEW
ASTRIT ERKOCAJ, ) FROM A FINAL ORDER OF
) THE BOARD OF
Petitioners, ) IMMIGRATION APPEALS
)
v. )
)
JOHN ASHCROFT, )
)
Respondent.
BEFORE: COLE and GIBBONS, Circuit Judges, and SCHWARZER, District Judge*
R. GUY COLE, JR., Circuit Judge. This is an immigration case. Petitioners Lejla
Erkocaj, Flamur Erkocaj, and Astrit Erkocaj contest the Board of Immigration Appeals (“BIA”)
summary decision affirming Immigration Judge Robert Newberry’s decision denying their
application for asylum and withholding of removal. For the following reasons, we AFFIRM the
decisions of the immigration judge and the BIA in all respects.
I.
Petitioners are a family of Albanian nationals who entered the United States on or about
December 25, 2000, on a tourist visa and stayed longer than authorized. After being contacted by
*
The Honorable William W Schwarzer, United States District Judge for the Northern District
of California, sitting by designation.
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Erkocaj v. Ashcroft
the Immigration and Naturalization Service, Petitioners sought asylum and withholding of removal
under the Immigration and Naturalization Act, 8 U.S.C. § 1101 et seq., and the United Nations
Convention Against Torture. The immigration judge denied asylum and withholding of removal,
and found the Petitioners removable. The BIA summarily affirmed the immigration judge, and
Petitioners timely appealed.
Petitioner Lejla Erkocaj (“Lejla”) testified that three incidents support her claim for asylum.
Petitioners Flamur Erkocaj, Lejla’s husband, and Astrit Erkocaj, her son, seek asylum based on the
same incidents. Lejla testified that she has been an activist and leader in the Democratic Party in
Albania since the early 1990s. On June 17, 1996, she claims her home was robbed, resulting in the
loss of $2000 and jewelry. When she returned home from the market on this date, two men wearing
masks were standing in her bedroom. The men hit her with an iron bar, and she testified that the
resulting injury required seven stitches. However, when attempting to view the scar in proceedings
before the immigration judge, neither Lejla’s attorney nor the immigration judge could find a visible
mark. Lejla testified that one of the men who robbed her was her neighbor, a supporter of the
Socialist Party. Lejla’s son contacted the police regarding the robbery and beating, but apparently
no arrests were made.
The next incident occurred on August 20, 2000. Lejla testified that she heard a loud noise
inside her house, and found several people inside who “had entered in to steal.” Lejla was not
physically abused during this incident, but her mouth was bound and she fell unconscious. Though
nothing was stolen, Lejla testified that the intruders were attempting to steal her Democratic Party
membership card. Lejla reported the incident to the police but they took no action. Lejla further
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testified that she received a phone call afterwards indicating that her Socialist Party neighbor was
involved in the robbery.
Another incident occurred on September 18, 2000. On that date, two men wearing masks
followed Lejla home as she returned from a Democratic Party meeting. The men threatened her,
grabbed her face, and told her she should not be an activist. The men then commented on her
appearance in a way that caused Lejla to fear that she was going to be raped. However, after she
screamed, several people came to her aid, causing the masked men to flee. Lejla testified that one
of the men was her neighbor, the same man who had robbed her in 1996 and August 2000.
Though Lejla at first testified that she was not physically abused during this incident, she
later testified that she was. In her application, Lejla stated that the assailants had grabbed and
punched her. When asked about the apparent inconsistency before the immigration judge, Lejla
admitted that she may have been confused, because the incident was emotionally upsetting.
II.
This Court has jurisdiction over final orders of removal pursuant to 8 U.S.C. § 1252.
Because the BIA affirmed the immigration judge without opinion, this Court reviews the decision
of the immigration judge directly. Denko v. I.N.S., 351 F.3d 717, 732 (6th Cir. 2003).
Petitioners essentially argue that the incidents described in Lejla’s testimony compel a
finding of political persecution. We may reverse a finding by the immigration judge only if the
evidence presented was “so compelling that no reasonable factfinder could fail to find the requisite
fear of persecution.” I.N.S. v. Elias-Zacarias, 502 U.S. 478, 484 (1992). Adverse credibility
determinations of the BIA or immigration judge are “conclusive unless any reasonable adjudicator
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would be compelled to conclude to the contrary.” Pilica v. Ashcroft, 388 F.3d 941, 952 (6th Cir.
2004) (citation omitted); Adhiyappa v. I.N.S., 58 F.3d 261, 267-68 (6th Cir. 1995).
An applicant may qualify as a refugee based solely on past persecution. 8 C.F.R. §
1208.13(b)(1). Persecution is an “extreme concept” that entails more than harassment, verbal
intimidation, or discrimination. Ali v. Ashcroft, 366 F.3d 407, 410 (6th Cir. 2004); Mikhailevitch
v. I.N.S., 146 F.3d 384, 390 (6th Cir. 1998). Rather, persecution usually requires “physical
punishment, infliction of harm, or significant deprivation of liberty.” Mikhailevitch, 146 F.3d at
390. If past persecution is established, a rebuttable presumption arises that the applicant has a well-
founded fear of future persecution. 8 C.F.R. § 1208.13(b)(1). However, the immigration judge has
discretion to deny asylum if it is established by a preponderance of the evidence that changed
country conditions indicate there is no well-founded fear of future persecution. 8 C.F.R. §
1208.13(b)(1)(i)(A).
Petitioners’ sole argument on appeal is that the immigration judge improperly determined
that there was no past persecution. As part of the argument, Petitioners state that the immigration
judge determined that Lejla testified credibly. Petitioners’ Br. at 10 (“The immigration judge
concluded that the petitioner although testified credibly was not eligible for asylum because she did
not show past persecution.”). However, this is simply incorrect. The immigration judge’s opinion
clearly finds that Lejla is not credible, and discusses Lejla’s problematic credibility and testimony
at length. Immigration Judge Op. at 6 (“Her testimony was not credible. It was often not direct;
and, it is just unbelievable.”). Given the failure to contest properly the immigration judge’s adverse
credibility determination, Petitioners have waived the issue. See Dedgjonaj v. Ashcroft, 106 Fed.
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Appx. 422, 423, 2004 WL 1794635 (6th Cir. 2004); Bickel v. Korean Air Lines Co., 96 F.3d 151,
153 (6th Cir. 1996). Given this waiver, affirmance is supportable on that basis alone. In other
words, since Lejla’s testimony was highly suspect, she did not establish past persecution.
Even if we assume that Lejla’s testimony was credible, Petitioners have not shown that such
testimony establishes past persecution. The three incidents which she cites as support for her claim
for asylum are: (1) a robbery and beating in her home (June 17, 1996 incident); (2) another robbery
in her home (August 20, 2000 incident); and (3) harassment and simple assault (grabbing or
punching), and threatening a possible sexual assault (September 18, 2000 incident). Lejla herself
notes that she suffered no abuse or harassment from the Albanian government in any of these
incidents.
Of the first two incidents, the only nexus between the incidents and Lejla’s political activity
is the assertion that her neighbor, a prominent Socialist, was involved in the robberies. Lejla does
not assert that the robberies were sponsored by the government, or that the neighbor was somehow
an agent of the government. Though Lejla testified that the police were unresponsive to the
robberies, there is no evidence that such lack of an adequate response was the result of political
persecution, as opposed to general instability in Albania. See Campos-Guardado v. I.N.S., 809 F.2d
285, 290 (5th Cir. 1987) (“Congress did not intend to confer eligibility for asylum on all persons
who suffer harm from civil disturbances . . . .”). Regarding the third incident, the assailants did state
that Lejla should not be involved in politics. But Lejla testified that the incident was halted before
any significant physical harm occurred. Again, there is no evidence to support the conclusion that
this incident constitutes political persecution. Mikhailevitch, 146 F.3d at 390 (noting that
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persecution entails more than harassment, verbal intimidation, or discrimination). Furthermore,
there is insufficient evidence to compel a reasonable factfinder to conclude that the pattern of alleged
criminal activity was motivated by Lejla’s political affiliation. Rather, it is just as reasonable that
more pedestrian criminal motivations – such as financial gain or violent intent – were the motivation
for the alleged criminal activity.
III.
For the foregoing reasons, we AFFIRM the decisions of the BIA and immigration judge in
all respects.
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