Vuktilaj v. Gonzales

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0924n.06
Filed: December 21, 2006
No. 06-3074
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
NIKOLLE VUKTILAJ, )
)
Petitioner, )
)
v. ) ON PETITION FOR REVIEW OF THE
) ORDER OF THE BOARD OF
ALBERTO R. GONZALES, Attorney ) IMMIGRATION APPEALS
General, )
)
Respondent.
Before: SUTTON and GRIFFIN, Circuit Judges; and COHN, District Judge.*
AVERN COHN, District Judge. This is an immigration case. Petitioner Nikolle Vuktilaj
(Petitioner) seeks review of an order by the Board of Immigration Appeals (BIA) affirming the
Immigration Judges’s (IJ) decision to deny Petitioner’s claims for asylum and withholding of
removal under the Immigration and Nationality Act (INA) and relief under Article 3 of the
United States Convention Against Torture (CAT). For the reasons that follow, the petition for
review will be denied.
*
The Honorable Avern Cohn, United States District Judge for the Eastern District of
Michigan, sitting by designation.
I.
Petitioner is a native and citizen of Albania. He initially entered the United States on
March 28, 2000, with fraudulent documents. The Immigration and Naturalization Service (INS)
placed him in removal proceedings. On March 20, 2001, Petitioner conceded removability but
filed an application for asylum, contending that he is entitled to relief on the grounds that he
suffered past persecution as a result of his political activity, specifically on behalf of the
Democratic Party. He supplemented his application on July of 2002.
During his hearing, Petitioner first testified about his family’s persecution under the
former communist regime. He stated that his father was executed in 1969 and his uncle was
imprisoned for seven years for political crimes.
As to the facts relating to himself, Petitioner testified that he participated in several
demonstrations against the communist regime from 1990 to 1992. He testified that he was
arrested, beaten and threatened during some of these demonstrations. After one demonstration,
which he says he co-organized, Petitioner says he was arrested and beaten and eventually
hospitalized.
Petitioner also testified that from 1992 to 1996, after the fall of the communist regime,
things were “good” until the Socialist Party gained control. Petitioner then discussed several
incidents beginning in 1997. The first incident was the burning of his home on June 11, 1997.
Another incident occurred after the election on June 29, 1997 in which Petitioner participated
and spoke at a Democratic rally. Petitioner testified that he was stopped on his way home by two
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police officers, was beaten in the head with a hammer, and received treatment at a hospital. The
next incident occurred on December 12, 1997, during a rally to commemorate the founding of the
Democratic Party. Petitioner testified he was arrested and detained for five days. Petitioner then
testified that on September 14, 1998, he co-organized a demonstration protesting the
assassination of Azem Hajdari, and was arrested, beaten, threatened and held for two days by the
police. Petitioner also testified that on March 20, 1997, he participated in a Democratic Party
rally and gave a speech. After the rally, he was stopped by the police who threatened to kill him
if he did not leave the country. Petitioner left Albania two days later, on March 22, 1997.
In August 2000, Petitioner’s wife and child left Albania and joined Petitioner in the
United States.1
The IJ issued its decision in 2004 finding that Petitioner failed to demonstrate that he was
entitled to relief based on claims for asylum, withholding of removal, or the CAT. The BIA
affirmed the IJ’s decision by an order dated December 22, 2005. Petitioner then filed an appeal
with this Court.
II.
A.
Where the BIA adopts the decision of the IJ, we review the determination of the IJ
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Petitioner’s wife and child were also placed in removal proceedings and filed
applications for asylum, withholding of removal and for relief under the CAT. The IJ denied
their applications and the BIA affirmed. A panel of this Court denied their petitions for review.
Vuktilaj v. Gonzales, No. 05-3873, 2006 WL 2613370 (6th Cir. Sept. 12, 2006) (per curiam).
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directly. See Guang Run Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir. 2004). Here, the BIA
acknowledged that not every reason identified by the IJ for finding Petitioner not credible was
material to his claims, but nevertheless held that “in the aggregate, there are sufficient reasons
stated for finding that [Petitioner] failed to meet his burden of proof.” Essentially, the BIA
adopted the reasoning of the IJ and therefore we review the decision of the IJ.
We review purely legal questions regarding the requirements of the INA and CAT de
novo. Ali v. Ashcroft, 366 F.3d 407, 409 (6th Cir. 2004). We will affirm the IJ's factual findings
if substantial evidence supports such determinations. INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992). Under this highly deferential standard, we will uphold an IJ's decision unless “the
evidence presented was so compelling that no reasonable fact finder could fail to find the
requisite persecution or fear of persecution.” Guang Run Yu, 364 F.3d at 703.
In a similar fashion, in reviewing decisions regarding withholding of removal under the
INA and CAT, we reverse only when the decision against withholding is “manifestly contrary to
law.” Almuhtaseb v. Gonzales, 453 F.3d 743, 749 (6th Cir. 2006) (quoting 8 U.S.C. §
1252(b)(4)(C)).
B.
1.
Adjudicating a request for asylum involves a two-step inquiry: “(1) whether the applicant
qualifies as a refugee as defined in [8 U.S.C.] § 1101(a)(42)(A), and (2) whether the applicant
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merits a favorable exercise of discretion by the Attorney General.” Mikhailevitch v. I.N.S., 146
F.3d 384, 389 (6th Cir. 1998)(citation and quotation marks omitted). With respect to the first
issue, the term “refugee” is defined as
any person who is outside any country of such person's nationality or, in the case of a
person having no nationality, is outside any country in which such person last habitually
resided, and 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(a)(42)(A).
“The asylum applicant bears the burden of establishing that he or she qualifies as a
refugee ‘either because he or she has suffered past persecution or because he or she has a
well-founded fear of future persecution.’ ” Ouda v. I.N.S., 324 F.3d 445, 451 (6th Cir. 2003)
(quoting 8 C.F.R. § 208.13(b)). Once the applicant shows that he or she has suffered from past
persecution, the applicant is presumed to have a well-founded fear of future persecution.
Mikhailevitch, 146 F.3d at 389 (quoting 8 C.F.R. § 208.13(b)(1)). This presumption can be
rebutted “only through establishing by a preponderance of the evidence that since the persecution
occurred, conditions in the applicant's country ‘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
omitted).
Here, the IJ concluded that Petitioner was not credible in his claim that he suffered past
persecution. This Court has stated that though “an adverse credibility finding is afforded
substantial deference, the finding must be supported by specific reasons. An adverse credibility
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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 v. INS, 388 F.3d 924, 926 (6th Cir. 2004) (internal
quotation and citations omitted).2
Petitioner says that the IJ erred because the credibility finding was based on irrelevant
factors, including the timing of the filing of his application, whether the application was
complete, and whether Petitioner neglected to mention variations in his addresses. Although the
IJ noted such facts, these matters did not form the basis for the IJ’s credibility determination.
Even assuming, as the BIA noted, that some of IJ’s credibility determinations were not relevant
to Petitioner’s claims, the IJ discusses several relevant discrepancies in the record which amply
support an adverse credibility determination.
For instance, Petitioner’s request for relief from removal was based upon his membership
and participation in the Democratic Party. However, Petitioner submitted a document from the
“13 Dhjetori 1990" political association that identified him as a founder of the Republican Party.
When the IJ questioned Petitioner about this apparent discrepancy, Petitioner stated he had
founded the Republican Party but did not join it because he was a Democrat. The document also
mentions that Petitioner was arrested once in 1991, but fails to mention the several other
2
The REAL ID Act of 2005, Pub.L. 109-13, 119 Stat. 231 (codified in various sections of
8 U.S.C.), changed the standard governing credibility determinations, stating that those
determinations may be made “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
provision, 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. Pub.L.
109-13, div. B, § 101(h)(2), 119 Stat. 231 at 305. Because Petitioner applied for relief in 2001,
this provision of the REAL ID Act does not apply to our review of his claims.
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instances which form the basis for his claims for relief. The IJ questioned Petitioner regarding
the document, and he answered that he cannot be expected to have listed every event. The IJ
concluded that the document “raises serious questions about whether or not [Petitioner] was ever
a member of the Democratic Party and whether or not he was just a member of the Republican
Party, and whether he was ever arrested more than just the one time” (JA at 31-32). This finding
was substantially justified.
Additionally, Petitioner submitted a document from a hospital where he was apparently
treated after the July 21, 1997, police assault with a hammer. The hospital record states that
Petitioner was injured as a result of an accident, not an assault, and is inconsistent with the
amount of time that Petitioner testified he spent in the hospital. The IJ discussed in detail other
discrepancies in other purported medical documents and was correct in concluding that those
variances bore on Petitioner’s credibility.
Also supportive of an adverse credibility finding was Petitioner’s expanded testimony
regarding certain incidents, particularly the alleged arson of his home. In his written statement,
Petitioner simply relayed that “On June 11, 1997 Socialist bands put fire to my house and
continued threatening me, my family and my relatives to vote for Socialist Party.” At the
hearing, Petitioner added facts regarding this incident, namely that his wife and child were in the
home at the time of the fire and were saved only because of the timely intervention of his
brother-in-law. The omission of such details from the written application impacts Petitioner’s
credibility.
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The inconsistences in Petitioner’s testimony, which go to the “heart” of his asylum claim,
“undermine a claim of persecution.” Patel v. Gonzales, 126 Fed. Appx. 283, 291 (6th Cir. 2005).
Overall, the IJ’s credibility determination is supported by substantial evidence.
The IJ alternatively found that even if Petitioner was credible, he no longer has a fear of
future persecution because of changed country conditions. We agree. The IJ looked to recent
State Department Reports, on which it was entitled to rely. See Lumaj v. Gonzales, No. 05-3350,
2006 WL 2547466 , at *2 (6th Cir. Sept. 6, 2006). Indeed, a report shows that as of the Summer
of 2005, the Democratic Party returned to power in Albania, winning a majority of seats in
Albania’s Parliamentary elections. See JA at 58. Petitioner, however, relies on the 2001 State
Department Report as support for his persecution claim. This report, however, states that there is
little evidence of individuals being mistreated on political grounds. The IJ also considered a
2004 profile by the State Department, which noted the changed and improved political conditions
in Albania. Thus, even assuming Petitioner was credible, there is substantial evidence to support
the finding that Petitioner cannot demonstrate a reasonable fear of future persecution should he
return to Albania.
2.
Petitioner also challenges the BIA's denial of his request for withholding of removal
under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3). Withholding of removal is required if the alien
can demonstrate that “his or her life or freedom would be threatened in the proposed country of
removal on account of race, religion, nationality, membership in a particular social group, or
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political opinion.” 8 C.F.R. § 1208.16(b). “An applicant seeking withholding of removal faces a
more stringent burden than what is required on a claim for asylum.” Pilica v. Ashcroft, 388 F.3d
941, 951 (6th Cir. 2004). In order to qualify for withholding of removal, Petitioner “must
establish that there is a clear probability that he will be subject to persecution if forced to return
to [Albania].” Id. To establish a clear probability, the applicant must demonstrate that “it is
more likely than not” that he will be persecuted upon return. 8 C.F.R. § 1208.16(b)(2).
Because Petitioner has failed to establish his eligibility for asylum, “it therefore follows
that [Petitioner] cannot satisfy the more stringent standard for withholding of [removal]” as well.
Koliada v. INS, 259 F.3d 482, 489 (6th Cir. 2001). Contrary to Petitioner’s suggestion to the
contrary, no additional analysis by the IJ was required.
3.
Petitioner’s claim for review of the BIA's denial of relief under CAT likewise fails.
“Protection under the Convention exists in the form of withholding of removal to the country of
torture.” Ali v. Reno, 237 F.3d 591, 596 (6th Cir. 2001). To obtain relief under CAT, Petitioner
bears the burden of establishing “it is more likely than not that he or she would be tortured if
removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). Because Petitioner
failed to establish eligibility for asylum, he also cannot meet the heightened requirements for
relief under CAT. Pilica, 388 F.3d at 955.
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4.
Petitioner says he is entitled to humanitarian asylum under 8 C.F.R. § 1208(b)(1)(iii)(B).
This section allows for a discretionary grant of asylum to an alien who can establish “a
reasonable possibility that he or she may suffer other serious harm upon removal to that country.”
8 C.F.R. § 1208.13(b)(1)(iii)(B).
Petitioner cites Liti v. Gonzales, 411 F.3d 631 (6th Cir. 2005) in support. In Liti, a panel
of this Court found that the petitioners’ humanitarian asylum claims were unexhausted because
the applicable regulation became effective in January 2001, after the petitioners had appealed the
IJ’s order, but before the BIA issued its decision. Here, unlike Liti, the hearing before the IJ was
in 2004, three years after the regulation became effective. Moreover, the record does not show
that Petitioner sought relief on this ground. Having failed to raise this issue before the BIA
below, this Court lacks jurisdiction to consider Petitioner’s claim for review on this ground. See
8 U.S.C. § 1252(d)(1); Perkovic v. INS, 33 F.3d 615, 619 (6th Cir. 1994).
III.
For the reasons stated above, the petition for review is DENIED.
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