Vilme Gjonaj v. Eric H. Holder, Jr.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0603n.06
Nos. 08-4240 and 09-3663
IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
VILME GJONAJ, ) FILED
) Sep 13, 2010
Petitioner, ) LEONARD GREEN, Clerk
)
v. ) ON APPEAL FROM THE BOARD OF
) IMMIGRATION APPEALS
ERIC H. HOLDER, JR., Attorney General, )
)
Respondent. )
Before: BOGGS and CLAY, Circuit Judges, and WISEMAN, District Judge.*
WISEMAN, District Judge. Petitioner Vilme Gjonaj is a thirty-five-year-old Albanian
citizen who was admitted to the United States on December 23 or 24, 2002 on a fraudulent Italian
passport. She filed a timely asylum application on December 15, 2003. Her asylum proceedings
commenced on January 22, 2004, when the Department of Homeland Security referred her original
application to the Immigration Court for asylum-only proceedings. The Immigration Court had
jurisdiction because Gjonaj had entered the United States with a passport from Italy, a country that
participates in the Visa Waiver Pilot Program (“VWP”). See 8 C.F.R. § 1208.2(b) (“Immigration
judges shall have exclusive jurisdiction over asylum applications filed by . . . aliens who have been
admitted to the United States under the Visa Waiver Pilot Program.”); 8 C.F.R. § 217.2(a) (listing
countries participating in VWP).
*
The Honorable Thomas A. Wiseman, Jr., Senior United States District Judge for the Middle
District of Tennessee, sitting by designation.
Gjonaj renewed her asylum application before the Immigration Court and also applied for
withholding of removal under the Immigration and Naturalization Act (“INA”) and the Convention
Against Torture (“CAT”). Following several hearings, the Immigration Judge (“IJ”) denied her
application, and the Board of Immigration Appeals (“BIA”) dismissed her appeal on September 4,
2008. Gjonaj now appeals the BIA’s dismissal of her appeal of the IJ's decision.
In a second appeal, which has been consolidated with the first, Gjonaj seeks review of the
BIA’s May 14, 2009 order denying her motion to reopen the asylum proceedings to apply for an
adjustment of status based on her marriage to a United States citizen on December 27, 2007 and the
birth of a child to the couple on October 5, 2007. She indicated her new husband, George Thomas,
had filed a Petition for Alien Relative (Form I-130) on her behalf on October 2, 2008, and that
petition remained pending. The Department of Homeland Security did not file a response to the
motion. In its written decision denying the motion to reopen, the BIA noted that the United States
Citizenship and Immigration Services (“USCIS”), rather than the BIA, was the agency with
jurisdiction to adjudicate the adjustment application. The BIA declined to reopen given that it had
“no jurisdiction over the underlying application for relief.” (Case. No. 09-3663 App. 3.) The BIA
added, “To the extent that the applicant may seek to stay her removal while the USCIS adjudicates
her adjustment application, she may file a request for such a stay with the DHS. 8 C.F.R. §§ 241.6(a)
& 1241.6 . . . .” (Id.).
For the reasons set forth herein, we affirm both decisions of the BIA.
2
I. APPEAL OF THE DENIAL OF ASYLUM AND WITHHOLDING OF REMOVAL
A. Factual and Procedural Background
In her revised asylum application dated May 25, 2004, Gjonaj indicated she was seeking
asylum based on religion and political opinion.1 (Case No. 08-4240 App. 130.2) She claimed she
had been “mistreated on several occasions” and had received death threats from 1999 through 2002
as a result of her marriage to a Catholic and subsequent religious conversion from Islam to
Catholicism, specifically by members of the “Islamic Albanian Group,” an Islamic fundamentalist
organization to which several members of her extended family belonged. She alleged that her
parents had also been threatened and mistreated as a result of her marriage and conversion.
Gjonaj supplemented her asylum application with a written personal statement in which she
admitted entering the United States on December 24, 2002 with a picture-altered Italian passport.
She further elaborated on the statements made in her asylum application, asserting that she was
seeking asylum based on the persecution she had suffered and was likely to suffer again if she
returned to Albania because of her conversion to Catholicism3 and her marriage to a Catholic. She
asserted that her entire extended family is made up of Islamic conservatives, with the exception of
her father “who is slightly more moderate.” (App. 135.)
1
In her original asylum application, dated December 10, 2003, Gjonaj checked only the box
for “religion” under the question “Why are you applying for asylum or withholding of removal . .
. ?” (App. 144.)
2
Unless otherwise indicated, all subsequent citations to the Appendix (“App.”) refer to the
Appendix filed in Case No. 08-4240.
3
Gjonaj later testified at a preliminary hearing before the IJ on July 27, 2005 that the repeated
averments that she had converted to Catholicism were technically incorrect; she had wanted to
convert to Catholicism and be baptized, but this was “not possible.” (App. 203, 204.)
3
She stated that she married Robert Gjonaj, an American Catholic, on September 8, 1999,
despite initial opposition from her immediate family, and that Robert left for the United States
shortly after the marriage to make preparations for her to join him. Ten days after the marriage, her
uncle and his nephews came to her house to talk to her father about the “scandal,” and told her father
on that occasion that if the marriage was not “broken” within twenty-four hours, they would kill
Gjonaj. (App. 136.) When her father ordered the uncle and nephews out of the house, they began
beating her father, and continued beating and kicking him even after he had fallen unconscious. Her
mother was supposedly also beaten. The two nephews then found Gjonaj in her room where she was
hiding and beat her as well. The following day, her parents reported the incident to the local
authorities, who declined to take any action, purportedly in part due to the fact that her father was
an “opposition activist.” (Id.) Gjonaj, after talking with her parents, went to hide at a friend’s house
the next night.
Her parents later told her that the uncle and his nephews came back again that next evening.
In her personal statement, Gjonaj asserted that on this occasion, they had firearms and were
accompanied by four more men with long beards and scarves on their heads, also members of the
Islamic Albanian organization. Gjonaj’s parents told the men the marriage had been “broken” and
that Gjonaj had left in the middle of the night without telling them. The men told her parents that
they would find her and kill her. (App. 137.)
After that night, Gjonaj went to stay with her aunt in Pogradec, a town approximately two
or three hundred kilometers from her family’s home in Shkoder, where she believed she would be
safe until Robert sent for her to join him in the United States. Apparently not trusting in Robert
completely, Gjonaj’s aunt and uncle also began to look for ways to get her into the United States.
4
To that end, Gjonaj went to Greece several times but, according to her personal statement, she was
“caught by the Greek border patrols and deported back to Albania.” (App. 137.) She claims that in
March 2002 she was held in a Greek jail for two days and then, after being deported back to Albania,
held in police detention in Albania for another two days where she was “severely beaten and
interrogated for [her] father’s political activity.” (App. 137–38.)
Gjonaj stayed in Pogradec until June 2002, when her uncle and his nephews again showed
up and asked for her, this time accompanied by two other men. They found her hiding, pulled her
hair and kicked her and threatened to kill her. Her uncle stated “your end has come you evil whore,”
and instructed one of the nephews to kill her. At that point her aunt’s husband came in with a gun
and told the nephew to let her go. Some other neighbors came to help by this time, and the uncle,
nephews, and two men left. After this incident, Gjonaj went to stay with another aunt in Durres.
From there, she was able to arrange to get out of the country, traveling through Budapest to Paris
using her own Albanian passport, and then from Paris to Los Angeles on an altered Italian passport,
for which her father had paid $50,000. She arrived in Los Angeles on December 23 or 24, 2002, and
went from there to Michigan. Soon after her arrival in the United States, she called her aunt in
Durres and learned that her uncle and his nephews and five other men, all armed, had come to that
aunt’s house looking for Gjonaj three days after she had left.
Finally, in her written statement, Gjonaj proclaimed she was lucky to have gotten out of
Albania alive, but was “heartbroken” because “the love of [her] life” was not with her. She claimed
that Robert had gone through “all the procedures to have her join him in the US,” but that she had
not received any letters from the United States Embassy because she had been in hiding most of the
time after Robert left. (App. 138.) She speculated that Robert or the Embassy might have sent other
5
letters that were intercepted by her uncle. (App. 139.) She also hypothesized that Robert probably
thought she had betrayed him or was dead since she never responded to his purported attempts to
contact her. (App. 139.)
Gjonaj’s asylum application materials include a letter, in Albanian, written by her sister,
Gentiana Shema,4 and signed by her father and brother as well as her sister. (App. 119-21.) The
letter is translated into English (which version is also signed by the same family members) and
similarly recounts that the family is Muslim, and that Gjonaj’s decision to marry a Catholic caused
a conflict between Gjonaj’s family and an uncle who is a fanatical Muslim. The letter corroborates
Gjonaj’s claim that the uncle and two nephews came to the house after learning about the marriage
but differs from Gjonaj’s account in a number of ways, including that the letter states the men
“menaced” their parents but does not indicate that they actually harmed them physically, and adds
that their father had a heart attack after the men left. (App. 122.) The letter also omits any mention
of the visit on the second night, when Gjonaj was with her friend.
At the hearing conducted before Immigration Judge Robert Newberry on August 31, 2005,
Gjonaj testified regarding the same events addressed in her written application, personal statement,
and her sister’s letter, but her live testimony differed in several significant aspects from her written
statements. In her written materials, Gjonaj had indicated she came from a “traditionally Muslim
family.” (App. 135.) When asked at the hearing what religion her family practiced, Gjonaj stated
“[f]rom my father’s side, we were Muslim, and from my mother’s side we were Catholic but the
4
Gjonaj states in her asylum petition that her sister’s name is Genjana Sumulia, her married
name. (App. 129.) The signatures on the letter and the English translation of the letter supposedly
written by her sister looks like “Gentiana,” with the last name Shema instead of her married name.
(App. 121, 122.)
6
Muslim side were more than the Catholic side.” (App. 36.) Growing up, she had gone or was
“pushed” to go to church with her mother, but she went to mosque primarily. (App. 38.) She
acknowledged that her father’s marriage to a Catholic girl had not caused problems for her parents,
but she could not explain why not “because [she] didn’t exist at that time.” (App. 39.)
In addition, although she had indicated in her written statements that some of her persecution
resulted from her father’s political activities, she testified that her parents did not belong to any
political groups while she was growing up in Albania; her father had merely participated in some
demonstrations, along with a majority of the citizens of Shkoder. (App. 38, 71.)
In her original asylum application, Gjonaj had checked the box for “divorced” (App. 140);
in her revised application, she had checked the box for “single.” This entry was later corrected to
“married” (App. 126) after she conceded at the hearing that she was still technically married. Asked
about her husband, Robert Gjonaj, Gjonaj confirmed that she had had no contact with her husband
since he left Albania in 1999 immediately after their marriage, and that she had heard a rumor that
Robert had married again and moved to Canada. Gjonaj claimed at the hearing that she had lost
touch with her husband because she had been in hiding with her various aunts. Letters from the
United States Embassy were purportedly sent to her father’s house; her father kept them but did not
forward them to her or tell her about them until later.5 Robert Gjonaj himself did not send any letters
to Vilme Gjonaj, and the couple never spoke on the phone after he returned to the United States.
(App. 56.)
5
The administrative record includes some letters from the American Embassy, which reflect
that Robert was taking steps to procure a visa for Gjonaj, but that petition was eventually deemed
abandoned based on Gjonaj’s failure to respond to any of the letters.
7
In addition, although Gjonaj stated in the written materials that she had lost touch with her
father, she testified that she had in fact stayed in touch with her father continuously since coming to
the United States, and that he had never moved away from the house in which she had grown up.
She testified at the hearing that she last spoke with him approximately two weeks before the hearing.
(App. 56.) She alleged that, when she speaks to her father, they do not talk about the situation in
Albania, except that her father tells her that she is safer in the United States than she would be in
Albania.6 (App. 57.)
Her testimony regarding her trips to Greece was also inconsistent with her written statements.
At the hearing she testified that she went to Greece several times in hopes of making it from there
to the United States. One such occasion occurred on March 9, 2002, when she went to Greece with
some people she had never met before. She testified that she traveled to Greece on her own passport
and stayed in a hotel for two days, returning on March 12, 2002, according to the Greek exit stamp
on her passport. (App. 51.) The people who were trying to arrange for her to come to the United
States told her it was “impossible,” and she had to return to Albania. On direct examination, Gjonaj
did not mention being detained in Greece or at the Albanian border, or being deported back to
Albania.
6
Gjonaj’s mother, Bedrije Shema, came to the United States in 2001 and filed her own
petition for asylum, which was denied. She was deported in 2006. Although her asylum application
is not in the record, documents that are in the record (namely Gjonaj’s motion to exclude her
mother’s asylum materials) indicate that the basis for Mrs. Shema’s claim for asylum was completely
unrelated to Gjonaj’s. The IJ ultimately granted Gjonaj’s motion to exclude Mrs. Shema’s Form
I-589 and the trial transcript from her removal proceedings. Mrs. Shema was supposed to testify at
Gjonaj’s hearing but refused to appear voluntarily, disregarded several subpoenas, and then was
deported before giving testimony.
8
On cross-examination, Gjonaj stated affirmatively that she had never been arrested in
Albania, or held in a jail, prison, police station, or immigration detention facility in Albania, and that
she had never had any problems with the police or immigration officials in Albania. (App. 64-65.)
The government’s attorney then asked her to explain the statement in her asylum application in
which she stated that when she went to Greece on March 9, 2002, she was “captured” while passing
the border into Greece, held in jail in Greece for two days, then deported to Albania where she was
held in police detention for another two days in the border city of Bilisht. (App. 65.) In response
Gjonaj stated that, yes, she had been detained, “but they didn’t tell me any good reason why they
held me.” (App. 65.) Asked whether she was held at a police station in Albania, she responded,
“Yes, not that I ever committed any crime.” (App. 65.)
Questioned about her statement about being deported from Greece, she stated: “I was taken
by the Greek authorities or police and then they sent me to Albania, and the only reason that I think
that they did is that because they thought I was sent there for prostitution. And that’s the only reason
I can think they did that.” (App. 66-67.) She could not explain why she was held in Albania for two
days either. She claimed the police “mentioned” their knowledge that her father had participated in
political demonstrations. (App. 68.) They also asked her why she had gone to Greece, and then
released her. They did not ask her about marrying a Catholic. When asked about being “beaten,”
she explained that by “beaten,” she meant that the police pulled her hair and slapped her. (App.67.)
When asked to explain why her passport indicates she was admitted back into Albania on
March 12, 2002, not that she was deported, she stated: “It’s the seal actually, that they put in your,
it’s a stamp that they put in your passport and there is no other way that you can be admitted in
Albania without having that stamp on it.” (App. 69.)
9
Asked to explain other discrepancies between her written statement, her sister’s letter, and
her oral testimony, she stated she did not, at the time of the hearing, recall everything in detail
anymore. (App. 78.)
Asked if “Genta Gjonaj” attended her wedding, Gjonaj was confused: “Genta. Genta is my
sister . . . . But not Gjonaj. Gjonaj is the last name that I got after I married.” (App. 81.) The judge
pointed out that her passport included a notation that she had a daughter named Genta Gjonaj, born
January 25, 2000. (See App. 82.) Gjonaj could not explain that entry. She speculated that the
people who took her passport from her briefly when she was buying the Italian passport in Paris, and
who then put her passport back in the lining of her suitcase, “probably they wrote that down, I have
no idea. I don’t have any children.” (App. 82.)
She claimed her father picked up her Albanian passport from the police station in Shkoder
on March 10, 1999. (App. 82.) She made no attempt to explain why her passport was issued in her
married name six months before her marriage license was issued.
The IJ issued his opinion denying Gjonaj’s petitions on November 21, 2006. The IJ found
that Gjonaj did not testify credibly, and that, even if her testimony had been credible, she had not met
her burden of proving that she was entitled to asylum. More specifically, the IJ found that Gjonaj’s
testimony contained “numerous inconsistencies and omissions when compared with her asylum
application and the letter she claimed was sent from her sister in Albania.” (App. 17.) The IJ
referenced the following inconsistencies:
(1) In her asylum application, Gjonaj stated her family was Muslim (“traditionally
Muslim”) but her testimony revealed that her father is Muslim while her mother is
Catholic and even took her to church as a child.
10
(2) Regarding the attack by her uncle on September 18, 1999, Gjonaj stated in her
asylum application that she was knocked on the head with the handle of a knife. In
her testimony, she claimed she was only threatened with the knife. The letter from
her sister does not mention that either her father or mother was beaten, but claims
that her father had a heart attack after the uncle and nephews left. When asked about
that detail during the hearing, Gjonaj testified that she did not refer to her father’s
heart attack in her papers because she did not actually witness it, which (a) made no
sense in light of the sister’s statement that the heart attack occurred after the relatives
left and (b) did not prevent Gjonaj from testifying about other events she did not
actually witness.
(3) The sister’s letter states Gjonaj went directly to her aunt’s house after the
incident and fails to mention the night spent at her friend’s house or the return of the
uncle the following night.
(4) In describing the second visit from her uncle, Gjonaj testified that the uncle came
back with the two nephews. In her asylum application, Gjonaj stated the uncle and
nephews were accompanied by four more men with long beards and scarves on their
heads.
(5) Gjonaj testified that after she left home, her father did not really have any more
problems with the uncle, because she was the one the uncle was after, but Gjonaj’s
sister’s letter states that her father continued to be harassed by the uncle, to the point
that he suffered another heart attack in 2002.
(6) Gjonaj testified at her hearing that she went to Greece and stayed in a hotel for
two days before being told by the people through whom she was trying to make
arrangement to go to the United States that she needed to go home. In her asylum
application, she claimed she spent two days in jail in Greece due to her illegal entry,
and two more days in detention in Albania after being deported, where she was
beaten and questioned about her father’s political activities. When questioned at the
hearing about this discrepancy, she made no attempt to reconcile the two versions;
she affirmed that she was deported and held in a police detention facility in Albania
where she was slapped and had her hair pulled, but she was unable to say why she
was detained and mistreated. Gjonaj’s testimony also appears to have been at odds
with her passport, which contains multiple entry visas to Greece, valid for March
2002.
(7) Gjonaj testified at the hearing that each time her uncle came after her, he was
accompanied only by his two nephews. In her asylum statement, she claimed the
uncle and nephews were accompanied by four other men on the second visit to her
parents’ house, two other men when they came to her aunt’s in Pogradec, and five
other men when they came to her aunt’s in Durres after she had left. (App. 138.)
11
(8) In her asylum application, Gjonaj claimed she had lost contact with her father
and did not know his whereabouts. At the hearing she testified that it was he who
had sent her the documents she used to support her asylum application, that he had
never left the family home, and that she had last spoken on the phone with him two
weeks before the hearing.
(See App. 16-20.)
The IJ, besides noting the above-referenced inconsistencies, also found Gjonaj’s testimony
generally to be implausible for a number of reasons. For instance, she was unable to explain why
her uncle was concerned about her marriage to a Catholic, but was unconcerned about her father’s
marriage to a Catholic. The IJ found this implausibility to be amplified in light of substantial
evidence indicating that religious intermarriage is common and accepted in Albania and that
relations among religious groups are amicable. (App. 20-21 (citing Ex. 4, Tab C, “Albania: Profile
of Asylum Claims and Country Conditions, at 7; Ex. 5, Tab T, 2001 Country Report on Human
Rights Practices, at 10; Ex. 5, Tab BB, 2000 Country Report on Human Rights Practices, at 9; Ex.
6, 2004 International Religious Freedom Report, at 6).)
As an another example of the implausibility of Gjonaj’s testimony, the IJ pointed out that she
claimed to have been beaten by police after being deported from Greece in relation to her father’s
political activities. When questioned further, however, she admitted that her father is not a member
of any political party and that his political activities consisted solely of having attended two
demonstrations in which the majority of the population of Shkoder participated. The IJ noted that
there is some evidence that members of the Democratic Party suffered abuse by police while the
Socialist Party was in power, but there were no reports of mistreatment of individuals deported to
Albania after attempts to enter neighboring countries.
12
Finally, the IJ found that Gjonaj’s testimony regarding her relationship with her husband was
implausible. She could not say how long after the wedding her new husband stayed in Albania, only
that he left sometime between the wedding on September 8, 1999 and the first visit from her uncle
and nephews on September 18. She testified that her husband never sent her letters or called her
after he returned to the United States, although he apparently filed a petition for an immigrant visa
for her. She had no problem, however, maintaining contact with her family once she was in the
United States. She was vague about her marital status in her asylum application, at one point
referring to herself as divorced and another time as single, while admitting at the hearing that she
was still technically married. She testified that she had no children, but her Albanian passport lists
a daughter, Genta Gjonaj, born January 25, 2000. Gjonaj claimed her passport must have been
altered by the individuals who made arrangements for her to enter the United States but offered no
plausible explanation as to why they would do that.
Based on the inconsistencies, conflicting information, and implausible circumstances, the IJ
found that Gjonaj was not credible and as such had failed to carry her burden of proof. He also held
that even if Gjonaj had been credible, she had failed to establish past persecution or a well founded
fear of future persecution. Because the IJ determined Gjonaj was unable to meet the standard of
proof required to support her asylum claim, he likewise held that she was unable to meet the higher
standard of proof required to support a claim for withholding of removal. Finally, he held that
Gjonaj had not presented any proof that she was tortured in Albania or that it was more likely than
not that she would be tortured if she returned to Albania, as required for CAT protection.
The BIA upheld the IJ’s denial of Gjonaj’s petitions for asylum, withholding of removal, and
protection under the CAT in a one-paragraph opinion, stating in pertinent part:
13
[W]e are not persuaded that the Immigration Judge’s adverse credibility finding in
this case was “clearly erroneous,” where he noted inconsistencies which are present
in the record and were not adequately explained, including apparent embellishments
of the applicant’s story, as well as implausibilities. Contrary to the applicant’s
assertions on appeal, the inconsistencies noted by the Immigration Judge were not
minor or immaterial; rather they are material inconsistencies which go to the heart
of the applicant’s claim, for example, whether the applicant was harmed by a knife
or merely threatened with it, whether or not her parents were beaten, and how many
men accompanied her uncle each time he came to attack the applicant. Furthermore,
we disagree with the applicant’s argument that the Immigration Judge
mischaracterized and ignored evidence, and find instead that the Immigration Judge
correctly portrayed the testimony and evidence presented by the applicant, and
correctly pointed out inconsistencies contained therein.
(App. 1 (internal citations omitted).) On that basis, the BIA dismissed Gjonaj’s appeal.
B. Standard of Review
Under 8 U.S.C. § 1252 appellate courts have “jurisdiction to review the BIA’s decision
affirming the IJ’s denial of asylum, withholding of removal, and relief under the Convention Against
Torture.” Singh v. Ashcroft, 398 F.3d 396, 400–01 (6th Cir. 2005). However, where, as here, the
BIA opinion adopts the IJ’s reasoning, this court also reviews the IJ’s decision directly to determine
whether the BIA’s decision should be upheld. Id.; Huang v. Mukasey, 523 F.3d 640, 649 (6th Cir.
2008) (citations omitted).
In considering an appeal of the denial of a petition for asylum or withholding of removal, this
court reviews administrative legal determinations de novo. Ramaj v. Gonzales, 466 F.3d 520, 527
(6th Cir. 2006). We review factual findings, including credibility determinations, under the
substantial-evidence standard, keeping in mind that such findings 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, “the petitioner must
show that the evidence presented was so compelling that no reasonable factfinder could fail to find
14
the requisite persecution or fear of persecution.” Ouda v. INS, 324 F.3d 445, 451 (6th Cir. 2003);
see also Almuhtaseb v. Gonzales, 453 F.3d 743, 749 (6th Cir. 2006) (“To reverse the BIA’s
determination we must find that the evidence ‘not only supports a contrary conclusion, but indeed
compels it.’” (quoting Yu, 364 F.3d at 702–03) (emphasis in original)). This court may not reverse
the agency’s findings simply because it disagrees with its conclusions or evaluation of the evidence,
or because it might have decided the case differently. Singh, 398 F.3d at 404; Sylla v. INS, 388 F.3d
924, 925 (6th Cir. 2004).
C. Burden of Proof
1. Asylum
Under the INA, “the Attorney General may grant asylum to an alien” if “the Attorney General
determines that such alien is a refugee within the meaning of section 1101(a)(42)(A) of this title.”
8 U.S.C. § 1158(b)(1)(A). A refugee is defined by statute as any person outside of his or her country
of nationality “who is unable or unwilling to return to, and is unable or unwilling to avail himself
or herself of the protection of, that 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.” 8 U.S.C. § 1101. “Persecution” is defined to include unjust harm or suffering
inflicted upon an individual by the government or by persons the government is unable or unwilling
to control in order to punish the individual for possessing the characteristic the persecutor finds
offensive or seeks to overcome. Matter of Acosta, 19 I .& N. Dec. 211, 222 (BIA 1985).
The applicant bears the burden of establishing refugee status. 8 U.S.C. § 1158(b)(1)(B)(i).
The applicant may be able to meet this burden through his or her own testimony, without
corroboration, “but only if the applicant satisfies the trier of fact that the applicant’s testimony is
15
credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a
refugee.” 8 U.S.C. § 1158(b)(1)(B)(ii); see also id. § 1158(b)(1)(A) (providing that the Attorney
General and Secretary of Homeland Security establish procedures and requirements for determining
that an alien is a refugee as defined in 8 U.S.C. 1101(a)(42)).
To make the requisite showing, an applicant for asylum can establish that he or she suffered
past persecution in the applicant’s country of nationality on account of one of the aforementioned
factors, creating a presumption that the applicant has “a well-founded fear of persecution on the basis
of the original claim.” 8 C.F.R. § 1208.13(b)(1); see also Namo v. Gonzales, 401 F.3d 453, 456 (6th
Cir. 2005) (“The alien bears the burden of showing a ‘clear probability’ of such persecution.”). An
applicant can establish a well founded fear of persecution in the absence of past persecution if: (1)
the applicant fears persecution in his or her country of nationality based on one of the
aforementioned factors; (2) there is a reasonable possibility that the applicant would suffer such
persecution if returned to that country; and (3) the applicant is “unable or unwilling to return to, or
avail himself or herself of the protection of, that country because of such fear.” 8 C.F.R. §
1208.13(b)(2). That is, an applicant 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 v. INS, 33 F.3d 615, 620–21 (6th Cir. 1994) (citation omitted).
2. Withholding of Removal
An alien can also request withholding of removal under 8 U.S.C. § 1231(b)(3). According
to that subsection, the Attorney General may not remove an alien to a country if he finds that “the
alien’s life or freedom would be threatened in that country 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).
16
Thus, withholding of removal is mandatory if the alien demonstrates a “clear probability” of
persecution upon return to his native country on account of race, religion, nationality, membership
in a particular social group, or political opinion. Mohammed v. Keisler, 507 F.3d 369, 372 (6th Cir.
2007); 8 C.F.R. § 1208.16(b). In withholding-of-removal proceedings, an alien receives a
presumption of future persecution if he or she establishes past persecution. 8 C.F.R. §
1208.16(b)(1)(i). If, however, the applicant does not establish past persecution, the Attorney General
must withhold removal only if the applicant establishes “that it is more likely than not that he or she
would suffer such harm.” Id. at § 1208.16(b)(1)(iii); see INS v. Stevic, 467 U.S. 407, 424, 429–30
(1984) (noting that “clear probability” means it is more likely than not that the applicant’s life or
freedom would be threatened by persecution).
The standard of proof for establishing entitlement to withholding of removal is more stringent
than the standard for proving a need for asylum. INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)
(holding that the “clear probability” standard for withholding of removal does not converge with and
may not be equated with the “well founded fear” standard that applies to applications for asylum).
Consequently, an applicant’s inability to establish a well founded fear of persecution for purposes
of an asylum application will almost necessarily mean that the applicant cannot establish entitlement
to withholding of removal.
3. CAT Protection
Withholding of removal under the CAT is mandatory if the alien establishes that it is more
likely than not that she will be tortured in her home country. 8 C.F.R. § 1208.16(c)(2); Berri v.
Gonzales, 468 F.3d 390, 397 (6th Cir. 2006). “Torture” is defined by the regulations implementing
the CAT as:
17
any act by which severe pain or suffering, whether physical or mental, is intentionally
inflicted on a person . . . when such pain or suffering is inflicted by or at the
instigation of or with the consent or acquiescence of a public official or other person
acting in an official capacity.
8 C.F.R. § 1208.18(a)(1). “Acquiescence” requires that the public official have prior awareness of
the activity and “thereafter breach his or her legal responsibility to intervene to prevent such
activity.” 8 C.F.R. § 1208.18(a)(7). The term includes a public official’s “willful blindness” to the
activity. Amir v. Gonzales, 467 F.3d 921, 927 (6th Cir. 2006). In addition, in order to constitute
“torture,” the “act must be directed against a person in the offender’s custody or physical control.”
8 C.F.R. § 1208.18(a)(6). Thus, the applicant’s burden of proof to establish eligibility for CAT
protection is even more stringent than the burden of proving eligibility for withholding of removal.
Berri, 468 F.3d at 397–98.
D. Analysis and Discussion
When an IJ decides that an applicant’s testimony “lacks credibility, the IJ must include in his
or her decision ‘specific reasons’ explaining why the IJ reached such a conclusion.” Singh v.
Ashcroft, 398 F.3d 396, 402 (6th Cir. 2005) (quoting Sylla v. INS, 388 F.3d 924, 926 (6th Cir.
2004)). Under the law in effect at the time Gjonaj filed her asylum petition, the IJ’s reasons had to
relate to “issues that go to the heart of the applicant’s claim.”7 Sylla, 388 F.3d at 926. Moreover,
“[i]f discrepancies ‘cannot be viewed as attempts by the applicant to enhance his claims of
7
The REAL ID Act of 2005 (Pub. L 109-13, 119 Stat. 231) amended 8 U.S.C. § 1158(b)(1)
to allow the trier of fact to make a credibility determination “without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim.” 8 U.S.C. §
1158(b)(1)(B)(iii). This updated standard, however, “only applies to aliens who applied for asylum,
withholding of removal, or other relief on or after May 11, 2005, the effective date of this division
of the Act.” Amir v. Gonzales, 467 F.3d 921, 925 n.4 (6th Cir. 2006). Gjonaj filed her first
application for asylum and withholding of removal on December 15, 2003, so the REAL ID Act does
not apply.
18
persecution, they have no bearing on credibility.’” Daneshvar v. Ashcroft, 355 F.3d 615, 623 (6th
Cir. 2004) (quoting Shah v. INS, 220 F.3d 1062, 1068 (9th Cir. 2000)).
In the present case, the petitioner argues that the IJ’s adverse credibility finding was based
upon inconsistencies and implausibilities that concern matters that are tangential to her asylum
petition, or were the product of a faulty recollection of events that happened many years ago, some
of which Gjonaj herself did not personally witness. While we agree that some of the issues relied
upon by the IJ are relatively tangential,8 most of the implausibilities and inconsistencies he
referenced are related to issues “going to the heart” of Gjonaj’s claim. See Sylla, 388 F.3d at 926.
The most salient implausibilities and discrepancies concern her family’s religion, her relationship
with her husband, and the alleged events of persecution, all of which directly concern the reasons
Gjonaj is seeking asylum.
Gjonaj also argues that she never intended for her asylum application to be a complete
recitation of her claim, and intended all along to supplement it with her hearing testimony. She
asserts that “[h]er failure to list in her written application facts that later emerge in testimony does
not provide a sufficient basis for an adverse credibility finding because ‘the circumstances
surrounding the application process do not often lend themselves to a perfectly complete and
comprehensive recitation of an applicant’s claim to asylum.’” (Petitioner’s Brief at 15 (quoting Liti
v. Gonzales, 411 F.3d 631, 638 (6th Cir. 2005)).) The problem with this argument is that Gjonaj’s
8
The IJ arguably placed too much weight on discrepancies between Gjonaj’s accounts and
her sister’s letter. It is undoubtedly true that different people see and remember events differently.
In particular, the sister’s failure to mention that Gjonaj spent a night at a friend’s house before going
to the aunt’s in Pogradec is trivial, but it does seem strange that her sister failed to recall the second
visit from the uncle and his nephews, especially when they were supposedly armed and accompanied
by four men in long beards and head scarves on that visit.
19
written personal statement is rather more detailed in many respects than the testimony she gave at
the hearing, and appears to include embellishments intended to enhance the merits of her asylum
claim. For example, her written materials include the story of her supposedly being held in detention
in Greece for two days before being deported, then held for another two days in police detention in
Albania, where she was mistreated and questioned about her father’s political activities. She omitted
any reference to that event at the hearing until questioned about it on cross-examination, at which
time she made no effort to reconcile the discrepancies between her oral and written statements.
Other embellishments include the references to the additional two, four or five members of the
Islamic Albanian Group who allegedly accompanied her uncle and cousins on three of the four
instances when they purportedly came looking for her.
Finally, while a failure to fully recollect events that occurred up to six years previously could
explain some of the discrepancies, Gjonaj did not seriously attempt to explain the discrepancies thus.
In fact, her complete inability to provide adequate explanations for the discrepancies tends to support
the IJ’s finding that she lacked credibility.
Gjonaj also attempts to refute the country-condition evidence presented by the Government,
which the IJ considered to support his finding that Gjonaj lacked credibility. Gjonaj points out that
the State Department had the opportunity to, but did not, comment on the specifics of Gjonaj’s case
and that courts have continued to grant asylum to Albanian applicants. The cases she cites, however,
relate to political persecution; none relates to persecution on the grounds of religious affiliation or
religious intermarriage.
In sum, we conclude that the decision to deny asylum based upon Gjonaj’s lack of credibility
is based on substantial evidence. The adverse credibility finding is based primarily upon
20
discrepancies and implausibilities in the record that go to the heart of Gjonaj’s claims. Because we
will affirm on this basis, we do not reach the IJ’s alternative finding that, even assuming Gjonaj to
be credible, she did not carry her burden of proving past persecution or a well founded fear of
persecution if she went back to Albania.9
Further, because Gjonaj has failed to establish her entitlement to asylum, she necessarily
cannot establish that she is entitled to withholding of removal under the more stringent standard
applied to such claims. Cf. Ceraj v. Mukasey, 511 F.3d 583, 594 (6th Cir. 2007) (holding that a
petitioner who failed to meet the standards for asylum eligibility could not meet the higher standards
for withholding of removal). With respect to the torture claim, the BIA did not expressly consider
it, and the IJ noted that Gjonaj had presented absolutely no evidence that she had been subjected to
torture in the past, as the term is defined by the CAT. That finding too is clearly supported by
substantial evidence.
III. APPEAL OF THE DISMISSAL OF GJONAJ’S PETITION FOR ADJUSTMENT
OF STATUS
A. Procedural Background
As indicated above, Gjonaj filed a motion to reopen before the BIA on December 2, 2008,
in order to permit her to seek an adjustment of status based on her marriage to a United States
citizen. The BIA denied the motion on the grounds that it lacked jurisdiction over the underlying
petition for adjustment of status. Gjonaj filed a timely appeal of that order.
9
Gjonaj also raises an argument addressed to the disparities between the rates of approval
of Albanian asylum petitions by the Immigration Court in Detroit, Michigan as compared to those
of seven other Immigration Courts with high volumes of Albanian asylum claims. This issue was
not raised in the Immigration Court and relies upon documents that are not part of the administrative
record. We decline to address this issue as it has not been exhausted and is not properly before us.
21
In this appeal, Gjonaj argues that the BIA erred in concluding that it lacked jurisdiction over
her application for adjustment of status, because there is “no evidence that [she] knowingly and
voluntarily waived her right to a hearing on her adjustment of status application” when she entered
the country pursuant to the Visa Waiver Program (“VWP”). (Petitioner’s Br. at 2.) Gjonaj
specifically contends that “[t]here is no evidence” that she signed a waiver as part of her application
for admission to the United States pursuant to the VWP, nor, if she did sign such a waiver, is there
any evidence that she did so knowingly and voluntarily. (Id. at 6.) At oral argument, Gjonaj also
argued that she would be prejudiced by the enforcement of the waiver. In its response to the present
appeal, the Government argues that the BIA did not abuse its discretion in denying the motion to
reopen.
B. Standard of Review
To be clear, Gjonaj does not seek review, in her present appeal, of the DHS’s order for her
removal, nor is this court called upon to review the merits of her petition for adjustment of status.
Instead, we are called upon to review the BIA’s denial of her motion to reopen based upon its
determination that it had no jurisdiction to consider Gjonaj’s underlying application for adjustment
of status based on her marriage to a United States citizen.
The BIA has broad discretion to deny a motion to re-open, and its decision is reviewable for
abuse of discretion. INS v. Doherty, 502 U.S. 314, 323 (1992) (holding that the abuse-of-discretion
standard applies to motions to reopen regardless of the underlying basis of the alien’s request);
Alizoti v. Gonzales, 477 F.3d 448, 451 (6th Cir. 2007). The BIA abuses its discretion when it acts
arbitrarily, irrationally, or contrary to law. Alizoti, 477 F.3d at 451 (citing Babai v. INS, 985 F.2d
22252, 255 (6th Cir. 1993)). Because the BIA has such broad discretion, a party seeking reopening or
reconsideration bears a “heavy burden.” Doherty, 502 U.S. at 323.
C. Analysis and Discussion
Gjonaj sought to reopen in order to pursue an adjustment of status based on her marriage to
a United States citizen. The BIA denied the motion to reopen based on its determination that Gjonaj
was in “asylum-only proceedings,” and therefore that the United States Citizen and Immigration
Services (USCIS), rather than the BIA, had jurisdiction to adjudicate her adjustment application.
(BIA Order dated May 14, 2009, Case No. 09-3663 App. 3 (citing 8 C.F.R. §§ 1208.2(c)(3)(i) and
1245(a)(1)).) The underlying basis for the BIA’s conclusion that it lacked jurisdiction was that, as
a factual matter, Gjonaj had entered the country with a passport from a country participating in the
Visa Waiver Program. Gjonaj never disputed that fact during her asylum proceedings; rather, she
expressly conceded that she had entered the country with a falsified Italian passport.
“The Visa Waiver Pilot Program was established by Congress to determine if a visa waiver
provision could facilitate international travel and promote the more effective use of the resources of
affected government agencies . . . .” Visa Waiver Pilot Program, 53 Fed. Reg. 24,898, 24,898 (June
30, 1988). Only citizens of VWP countries may participate in the Program, and only thirty-five
countries currently qualify. 8 C.F.R. § 217.2(a). The VWP operates through a reciprocal waiver
arrangement: The United States waives its visa requirement, and in exchange, the visitor waives her
right to contest admissibility determinations or removal (except for asylum). In that regard, the
authorizing statute provides:
An alien may not be provided a waiver under the program unless the alien has waived
any right–
23
(1) to review or appeal under this chapter of an immigration officer’s
determination as to the admissibility of the alien at the port of entry into the United
States, or
(2) to contest, other than on the basis of an application for asylum, any action
for removal of the alien.
8 U.S.C. § 1187(b).
At the time of Gjonaj’s entry, the terms of the VWP were memorialized in Form I-94W,
which had to be filled out and signed by all VWP entrants upon their arrival in the United States.
Form I-94W described the visitor’s waiver of rights as follows:
WAIVER OF RIGHTS: I hereby waive any rights to review or appeal of an
immigration officer’s determination as to my admissibility, or to contest, other than
on the basis of an application for asylum, any action in deportation.
Under the regulations, the Immigration Court has exclusive jurisdiction over asylum
applications filed by aliens admitted to the United States pursuant to the VWP, 8 C.F.R. §
1208.2(c)(1)(iv), but the scope of review in asylum proceedings under that provision is expressly
limited “to a determination of whether the alien is eligible for asylum or withholding or deferral of
removal.” Id. § 1208.2(c)(3)(i). “During such proceedings, all parties are prohibited from raising
or considering any other issues, including but not limited to issues of admissibility, deportability,
eligibility for waivers, and eligibility for any other form of relief.” Id. In sum, aliens who enter the
country under the VWP must waive any right to contest deportation other than on the basis of
asylum. And while only Immigration Courts have jurisdiction over asylum applications filed by
aliens permitted entry under the VWP, they do not have jurisdiction to consider applications for
adjustment of status filed by aliens in that category.
24
In the present appeal, both parties argue the merits of the petition to adjust status and, in
particular, the validity of Gjonaj’s waiver of her right to petition to adjust her status. This court,
however, has no need to consider the validity of Gjonaj’s waiver.10 In the first place, that issue was
not presented to the BIA, and we generally do not have jurisdiction to consider issues not exhausted
at the administrative level. See Lin v. Holder, 565 F.3d 971, 979 (6th Cir. 2009) (applying
exhaustion requirement to a due process claim raised in the context of an asylum proceeding). More
importantly, however, it is clear that the BIA did not act arbitrarily, irrationally, or contrary to law
in concluding on the record before it that it did not have jurisdiction over the underlying application
to adjust status. The BIA therefore did not abuse its discretion in denying the motion to reopen the
asylum proceedings on that basis.
IV. CONCLUSION
For the reasons articulated herein, we AFFIRM the denial of Gjonaj’s petitions for asylum
and withholding of removal, and we AFFIRM the BIA’s denial of Gjonaj’s motion to reopen.
10
The Seventh Circuit recently addressed the question of the validity of a waiver in Bayo v.
Napolitano, 593 F.3d 495 (7th Cir. 2010) (en banc). That case is factually similar to the case at bar,
insofar as the petitioner originated from a non-VWP country but had entered the country under a
falsified passport from a country that was a VWP participant, and belatedly sought to adjust his
status based on his marriage to a United States citizen. That case is procedurally at odds with this
one because the petitioner in that case had not sought asylum, and he appealed an actual order of
removal rather than an order denying a motion to reopen asylum proceedings.
25