Gjoni v. Gonzales

File Name: 06a0132n.06
Filed: February 17, 2006
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
No. 04-3801
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
EDUARD GJONI,
Petitioner,
ON APPEAL FROM THE
v. BOARD OF IMMIGRATION
APPEALS
ALBERTO GONZALES, UNITED STATES
ATTORNEY GENERAL,
Respondent.
/
BEFORE: MARTIN, NORRIS, and DAUGHTREY, Circuit Judges.
BOYCE F. MARTIN, JR., Circuit Judge. Petitioner, Eduard Gjoni, seeks review of a final
order of the Board of Immigration Appeals affirming the decision of the immigration court denying
his request for asylum and withholding of removal under the Immigration and Nationality Act
(“INA”). The Board of Immigration Appeals affirmed the immigration court’s denial of Gjoni’s
application for asylum without an opinion. In his petition for review, Gjoni argues that: (1) the
immigration court improperly found no past persecution; (2) the immigration court improperly
denied Gjoni’s application for asylum; (3) the Board of Immigration Appeals failed to provide
Gjoni with a fair review of his appeal; and (4) the Board of Immigration Appeals’s affirmance of
the immigration court’s decision without opinion was unconstitutional. Upon review, we conclude
that the decision to deny Gjoni’s asylum claim was supported by substantial evidence and that the
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Board of Immigration Appeals did not err in designating this case for review by a single Board of
Immigration Appeals member. Therefore, Gjoni’s petition for review is DENIED.
I.
Gjoni is a thirty-one year old male and a native citizen of Albania. According to his
application for asylum and his testimony at his removal hearing, Gjoni became a member of
Albania’s Democratic Party in 1994 while in medical school in Tirana, Albania. Gjoni was active
throughout his membership in the Democratic Party, organizing rallies, giving speeches and
protesting the Albanian government. In 1999, he was elected the General Secretary of the
Democratic Party in his hometown of Rreshen. Gjoni held this position until he left Albania.
Gjoni alleges that he, along with other members of his immediate family, was persecuted by
Albania’s Socialist government beginning in 1997 as a result of their membership in the Democratic
Party. Gjoni asserts that in June 1997, while working as the Vice-Chairman of the Election
Commission in Tirana, armed men ordered by the socialists threatened him with guns and bombs
and demanded that he falsify election results. When he refused, the armed men beat him. On July
27, 1998, Gjoni participated with his brothers in a Democratic Party demonstration, during which
he was beaten by police. On September 14, during a Democratic Party demonstration, Gjoni asserts
that the police used violence against the demonstrators and wounded Gjoni’s right leg which
required stitches.
Upon his graduation from medical school in 1999, Gjoni left Tirana and returned to Rreshen.
Although Rreshen was in need of physicians, Gjoni claims that the Socialist government refused to
hire him based on his political affiliations. Nonetheless, Gjoni continued his work with the
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Democratic Party. On October 3, 1999, Gjoni and his brother Leonard were shot at by an armed man
and Leonard was wounded. Gjoni took him to the Rreshen Emergency Room where surgery was
performed to remove the bullet. On October 16, 1999, while giving a speech at a Democratic Party
demonstration, Gjoni claims he was arrested by police and held for three days despite his requests
for a lawyer or a court hearing. During those three days, Gjoni asserts he was maltreated and beaten.
Gjoni claims that on November 28, 1999, armed men, whom Gjoni believes were members of the
secret police, beat him and threatened to harm him if continued to speak out against the government.
The following year, on March 22, 2000, Gjoni was arrested in Tirana at a Democratic Party
rally. Gjoni claims he was held by police for two days and was beaten and maltreated. Finally, on
May 5, 2000, Gjoni alleges that he came out of the Rreshen Democratic Party offices and was beaten
and shot at by several men. Following this incident, Gjoni left Albania and went to Italy. After
remaining in Italy for approximately ten days Gjoni entered the United States at Detroit, Michigan
on June 1, 2000, using a fraudulent Italian passport that he had purchased. Approximately seven
months later, Gjoni filed a application for asylum based on the aforementioned claims.
A hearing was held on Gjoni’s petition on January 28, 2003. At the hearing, Gjoni testified
regarding his claims of past persecution and introduced several pieces of corroborating evidence,
including: (1) two Albanian newspaper articles that made references to Gjoni’s persecution; (2) three
medical reports, one that verified the shooting of his brother Leonard, and two that attested to
medical treatment Gjoni received following alleged police violence at Democratic Party
demonstrations; (3) Gjoni’s Medical Degree; (4) Gjoni’s Democratic Party Membership Card; (5)
a verification by the Democratic Party Branch of Mirdite, corroborating several of Gjoni’s claimed
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incidences of persecution; and (6) an affidavit by Gjon Gjonmarkkaj, a fellow member of the
Democratic Party, who had witnessed several of Gjoni’s claimed incidences of persecution. The
immigration court reviewed this evidence, along with Gjoni’s testimony and concluded that Gjoni
failed to establish a claim for asylum. Gjoni appealed this decision to the Board of Immigration
Appeals which summarily affirmed the immigration court’s decision. This appeal then followed.
II.
Gjoni raises two main claims on appeal. First, that the Board of Immigration Appeals erred
in affirming the immigration court’s denial of his asylum application based on the immigration
court’s finding that Gjoni lacked credibility and that he failed to provide sufficient corroborating
evidence. Second, Gjoni alleges that the Board of Immigration Appeals’s use of a streamlined
review process unconstitutionally denied him due process. We address each of these claims in turn.
A.
In reviewing a decision by the Board of Immigration Appeals to deny an application for
asylum, we will uphold the Board of Immigration Appeals’s determination if it is supported by
reasonable, substantial, and probative evidence on the record considered as a whole. Mikhailevitch
v. INS, 146 F.3d 384, 388 (6th Cir. 1998) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)).
Applying this standard of review, we “may not reverse the Board’s determination simply because
[we] would have decided the matter differently.” Koliada v. INS, 259 F.3d 482, 486 (6th Cir. 2001).
Rather, in order to reverse the factual findings of the Board of Immigration Appeals, this court must
“find that the evidence ‘not only supports a contrary conclusion, but indeed compels it.” Id. (quoting
Klawitter v. INS, 970 F.2d 149, 152 (6th Cir. 1992)). In this case, we conclude that there is
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substantial evidence to support the Board of Immigration Appeals’s denial of Gjoni’s application.
Under the INA, the Attorney General may grant asylum to an alien who qualifies as a
“refugee,” 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.” 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 quotation omitted). Despite this burden, an applicant need not
demonstrate that he will probably be persecuted if returned because “[o]ne can certainly have a
well-founded fear of an event happening when there is less than a 50% chance of the occurrence
taking place.” INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987). “The testimony of the applicant,
if credible, may be sufficient to sustain the burden of proof without corroboration.” 8 C.F.R. §
1208.13(a).
Gjoni asserts that the Board of Immigration Appeals improperly affirmed the immigration
court’s dismissal of his petition by “improperly impos[ing] a negative slant on the testimony
provided which would otherwise established Petitioner’s claim of a well founded fear of
persecution.” Petitioner’s Br. at 23. The immigration court’s conclusion that Gjoni failed to
demonstrate sufficient evidence of persecution to warrant the grant of asylum was primarily based
on two findings: (1) that Gjoni’s testimony was incredible, and (2) that Gjoni failed to provide
sufficient evident corroborating his testimony. Both of these findings are supported by substantial
evidence in the record.
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Gjoni argues in his petition that the Board of Immigration Appeals erred in failing to reverse
the immigration court’s adverse credibility finding. We have stated that although “an adverse
credibility finding is afforded substantial deference, the finding must be supported by specific
reasons. An adverse credibility finding must be based on issues that go to the heart of the applicant’s
claim. They cannot be based on an irrelevant inconsistency.” Sylla, 388 F.3d at 926 (internal
quotation and citations omitted). In addition, “[s]peculation and conjecture cannot form the basis
of an adverse credibility finding, which must instead be based on substantial evidence.” Shire v.
Ashcroft, 388 F.3d 1288, 1296 (9th Cir.2004) (internal quotation omitted). Where the credibility
determination is based on inconsistencies found by the immigration court but unsupported in the
record, we have reversed the immigration court’s determination. Sylla, 388 F.3d at 930.
While Gjoni’s testimony was not so inconsistent as to make an adverse credibility
determination compelled by the record, there are sufficient inconsistencies that go to the heart of
Gjoni’s claims in his testimony to support the immigration court’s adverse credibility determination.
First, Gjoni altered his testimony at several points during his removal hearing. At one point during
questioning Gjoni indicated that he left his Albanian passport in Italy when he came to the United
States. Later Gjoni stated that he brought the Albanian passport with him to the United States.
Additionally, Gjoni stated in testimony that in May 2000 he was beaten and shot at as he left
the Democratic Party offices in Rreshen. This statement was inconsistent with the affidavit by Gjon
Gjonmarkaj that stated that Gjoni had been stoned rather than beaten during this event and made no
mention of any shots being fired. Upon being confronted with this affidavit, Gjoni changed his
testimony stating that he had in fact been stoned rather than beaten as he initially asserted.
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Moreover, Gjoni could provide no explanation as to why Gjonmarkaj failed to indicate in his
affidavit that any shots were fired.
Finally, the circumstances of Gjoni’s situation understandably led the immigration court to
question Gjoni’s credibility. During his testimony Gjoni acknowledged that his medical school
education was paid for by the Albanian government, the same government that Gjoni alleges was
persecuting him. The claim begs the question why the government would have paid for Gjoni’s
medical school education if it wanted to persecute him for his political affiliation with the
Democratic Party? These inconsistencies suggest that here it is at least reasonable to be skeptical
of Gjoni’s credibility and that there is a basis in the record for the immigration court’s determination
that Gjoni’s testimony was not credible. These inconsistencies by themselves, however, might be
insufficient to defeat Gjoni’s asylum application. While these inconsistencies demonstrate the
Gjoni’s testimony was not entirely accurate as to the details of the persecution he suffered in
Albania, none suggest that Gjoni’s testimony was wholly fabricated. When these inconsistencies are
viewed in concert with Gjoni’s failure to adequately corroborate his claims, however, we conclude
that there is substantial evidence to support the Board of Immigration Appeals’s affirmance of the
immigration court’s decision to deny Gjoni’s application for asylum.
Turning to the immigration court’s finding that Gjoni failed to provide adequate
corroborating evidence, we again find sufficient evidence in the record to support the immigration
court’s conclusion. Although “[t]he testimony of the applicant, if credible, may be sufficient to
sustain the burden of proof without corroboration,” 8 C.F.R. § 1208.13(a), we nonetheless have held
that “where it is reasonable to expect corroborating evidence [t]he absence of such corroborating
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evidence can lead to a finding that an applicant has failed to meet her burden of proof.” Dorosh v.
Ashcroft, 398 F.3d 379, 382 (6th Cir.2004) (internal quotation omitted). An applicant may be
required to produce supporting documentation where “ 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 omitted).
Although Gjoni offered some corroborating evidence, many of the documents he offered did
little to advance his case. The two newspaper articles Gjoni provided were inconsistent with Gjoni’s
testimony and his asylum application. One article asserted that Gjoni left Albania and went to
England, when in fact Gjoni had gone to Italy before arriving in the United States. The other article
reported that Gjoni had been threatened by unidentified men in July 2000 based on his political ties;
however, Gjoni was no longer in Albanian in July 2000. Additionally, as discussed above, the
affidavit submitted by Gjoni’s friend Gjon Gjonmarkaj does little to bolster Gjoni’s claim. Although
the affidavit asserts that Gjonmarkaj witnessed several persons attack Gjoni after a Democratic Party
Meeting in May 2000, Gjonmarkaj’s version of the events differs critically from Gjoni’s recount of
the events. Gjoni alleges that he was beaten and shot at, while Gjonmarkaj’s affidavit claims that
the men stoned Gjoni and mentions no shooting occurring. Gjoni also introduced three medical
reports that Gjoni claims show the injuries he and one of his brothers received as a result of
government persecution. The immigration court, however, understandably was hesitant to credit any
great weight to these medical reports. The medical reports were not authenticated as Gjoni did not
call any witnesses to corroborate the contents of the medical reports nor could he produce the
envelopes in which the reports were sent to him. Gjoni was consequently unable to prove to the
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immigration court that the documents were sent from Albania, as Gjoni claimed, much less that their
contents were accurate. Thus, the newspaper articles, Gjonmarkaj’s affidavit, and the medical
reports are problematic as corroborative evidence.
More importantly, the immigration court also determined that probative corroborating
evidence was reasonablely available to Gjoni, yet not provided. Specifically, Gjoni’s application and
testimony indicate that his immediate family had a long history of involvement in the Albanian
Democratic Party. Additionally, Gjoni indicates that several of the alleged incidents of persecution
involved his brothers. Yet Gjoni failed to call any of his family members as witnesses on his behalf
or provide affidavits from them that would corroborate his testimony. Affidavits from Gjoni’s
immediate family members would not have been difficult for Gjoni to obtain. At the time of the
hearing, Gjoni’s brothers lived with him in Detroit. Thus, it would have been easy for any one of
the three of Gjoni’s brothers to be called as a witness. Morever, Gjoni’s parents now live in Greece
and Gjoni’s sister now resides in Belgium. There is nothing in the record that suggests it would have
difficult for Gjoni to have obtained from them affidavits that supported his testimony.
Furthermore, at the removal hearing, Gjoni did not provide any reasonable explanation for
the absence of this corroborating evidence. Gjoni merely stated that he believed that providing the
testimony of his family members to corroborate his account of the persecution he suffered would
not further his claim and thus he did not call his brothers as witnesses at the hearing or provide
affidavits from his parents or sister. Without such evidence, particularly when viewed in light of
Gjoni’s at times inconsistent and incredible testimony, substantial evidence exists to supports the
Board of Immigration Appeals’s affirmance of the immigration court’s conclusion that Gjoni failed
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to satisfy his burden of demonstrating a well-founded fear of future persecution if he was to return
to Albania. Therefore, we conclude that the Board of Immigration Appeals properly denied Gjoni’s
application for asylum.1
B.
Gjoni’s remaining arguments on appeal seem to allege that the streamlining procedures
followed by the Board of Immigration Appeals (specifically, the assignment of cases to single Board
members and the issuance of summary affirmances without opinions) violate due process. We
conclude that such an argument affords Gjoni no relief.
In 1999, the Department of Justice adopted a series of streamlining procedures for the
handling of immigration appeals by the Board of Immigration Appeals. As part of the procedures
appeals could now be assigned to single Board of Immigration Appeals members and the summary
affirmance of immigration court decisions without issuance of an opinion setting forth the Board of
Immigration Appeals’s reasoning would be permitted. See 8 C.F.R. §§ 1003.1(e)(4) and (6). Gjoni
contends that this streamlining procedure denied him adequate review by the Board of Immigration
Appeals of his appeal and prevented him from receiving fair administrative and judicial review. In
Denko v. INS, we considered and rejected a similar due process challenge to the Board of
Immigration Appeals’s streamlining procedures. 351 F.3d 717, 729-30 (6th Cir.2003) (“As have
1
The immigration court offered an alternative basis for its denial of Gjoni’s petition for
asylum, stating that “Assuming arguendo, however, even if you believe [Gjoni’s] story, the
Courts notes [] that [Gjoni] hasn’t demonstrated any past persecution.” Given that we conclude
there is substantial evidence in the record to support the immigration court’s decision not to
believe Gjoni’s claims of past persecution, we need not address the validity of the immigration
court’s alternate holding.
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many circuits before us, we now join the recent trend of our sister circuits by concluding that the
BIA’s streamlining procedures do not themselves alone violate an alien’s rights to due process . .
. Likewise, it is not a due process violation for the BIA to affirm the IJ’s decision without issuing
an opinion.”) (internal quotation marks and citations omitted). As we explained in Denko, without
“tangible evidence” that the Board of Immigration Appeals did not properly review a case, we will
not assume that an applicants constitutional rights have been violated based simply on the
procedures provided by the streamlining provisions. Id. at 728-29. In addition, because a “BIA
member must give the case his or her full consideration and assess the IJ’s decision before the BIA
member can determine that summary affirmance without opinion is the proper procedure,” the
summary affirmance provision does not prevent adequate review by the Board of Immigration
Appeals. Id. at 729. We also indicated in Denko that the Board of Immigration Appeals’s issuance
of summary affirmances does not hinder judicial review of Board of Immigration Appeals decisions
because “the summary-affirmance-without-opinion rule renders the immigration court’s decision
the final agency order, and we review that decision.” Id. at 730. Thus, based on our prior decision
in Denko, we conclude that Gjoni’s due process claim regarding the Board of Immigration Appeals’s
handling of his case lacks merit.2
III.
2
Gjoni’s brief suggests that this case is different than Denko because “What the IJ has
done [here] is to improperly impose a negative slant on the testimony provided which would
have otherwise established Petitioner’s claim of a well founded fear of persecution.” It is unclear
how this allegation, even if true, changes an otherwise constitutionally permissible streamlining
program into an unconstitutional one. Thus, we conclude that despite this claim, this Court’s
holdng in Denko is controlling.
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For the reasons discussed above, we DENY Gjoni’s petition for review.