Jaupi v. Gonzales

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0473n.06
Filed: July 6, 2006
No. 05-3682
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
LIRI JAUPI, )
)
Petitioners-Appellants, )
) ON APPEAL FROM THE
v. ) BOARD OF IMMIGRATION
) APPEALS
ALBERTO R. GONZALES, )
)
Respondent-Appellee. )
)
BEFORE: KEITH, BATCHELDER, Circuit Judges and ALDRICH*, District Judge.
PER CURIAM. Petitioner-Appellant Liri Jaupi (“Jaupi”) petitions this Court for review
of the Board of Immigration Appeals’ (“BIA”) decision affirming the immigration judge’s (“IJ”)
denial of her application for asylum, withholding of removal, and relief under the Convention
Against Torture (“CAT”). For the following reasons, this Court DENIES her petition for review.
I. BACKGROUND
Jaupi is a 62 year old female, native and citizen of Albania. On May 30, 2001, Jaupi entered
the United States on a non-immigrant visa for pleasure. Her visa authorized her to remain in the
United States until May 29, 2002.
On May 30, 2002, a year after Jaupi arrived in the United States, she filed an application for
asylum. For unknown reasons, her initial application was rejected. Subsequently, she filed another
*
The Honorable Ann Aldrich, United States District Court for the Northern District of Ohio,
sitting by designation.
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application on September 30, 2002. In her application, she alleged that she was persecuted because
of her political beliefs. Jaupi admitted that she was not politically active in Albania. Instead, her
derivative claim for asylum was based upon the Albanian government’s persecution of her son,
Artan Jaupi (“Artan”). Artan fled Albania on December 28, 1998, and filed an application for
political asylum in the United States on May 24, 2000. Artan was granted asylum and currently
resides in Michigan with his wife and children. Jaupi claims that Artan’s political opinions and
actions were imputed to her and if she were to return to Albania, she would be “eliminated.”
On November 13, 2002, the Immigration and Naturalization Service (“INS”)1 issued a Notice
to Appear charging Jaupi with removability pursuant to sections 237(a)(1)(A) and 212(a)(7)(A)(i)(I)
of the Immigration and Naturalization Act (“INA”), 8 U.S.C. §§ 1227(a)(1)(A) and
1182(a)(7)(A)(i)(I) (2000). The notice alleged that Jaupi overstayed her visa. On March 25, 2003,
Jaupi conceded removability and requested relief of asylum, withholding of removal, and relief
under CAT.
On March 25, 2003, at her asylum hearing, Jaupi testified that she sought political asylum
based on the Albanian secret police’s continual harassment. Jaupi testified regarding three main
1
On March 1, 2003, the functions of the former Immigration and Naturalization Service were
transferred from the Department of Justice to three agencies (United States Immigration and
Customs Enforcement, United States Customs and Border Protection, and United States Citizenship
and Immigration Services) to the newly formed Department of Homeland Security (“DHS”). See
Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (Nov. 25, 2002). In addition,
Title 8 of the Code of Federal Regulations was reorganized and amended to reflect the resulting
division of jurisdiction between DHS and the Executive Office for Immigration Review, which
includes the immigration courts and the BIA, and which remained an agency within the Department
of Justice under the direction of the Attorney General. See 68 Fed. Reg. 10349 (March 5, 2003)
(available at 2003 WL 724287).
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incidents of persecution. On September 19, 1998, the Albanian secret police came to her home
while they detained Artan. She alleges that the police “roughed her up” and attempted to sexually
assault Artan’s wife. After this incident, on November 19, 1998, the police returned to her home
to harass her and Artan’s wife.
After Artan left the country on December 18, 1998, Jaupi alleges that she began to receive
calls from the secret police asking where Artan was and threatening that she would never see him
again. On December 30, 1998, at 1:30 a.m. the secret police arrived at her house, searched through
the entire house for Artan, and questioned her about his activities until 6:30 a.m.
Between June and July 1999, the police stopped bothering her until Artan published an
article criticizing the Albanian government. After the article, Jaupi alleges that the police began to
harass her again. She alleges that her house was searched on a daily basis, and that the police both
physically and verbally abused her. In telephone conversations with Artan in America, Jaupi never
mentioned the confrontations with the police. Further, in September and October 1999, Jaupi went
to Macedonia and applied for a visa at the United States Embassy and never mentioned the
confrontations with the police.
On February 26, 2004, based on Jaupi’s testimony, the IJ found that Jaupi failed to establish
past persecution or a well-founded fear of future persecution on any of the statutorily enumerated
grounds. The IJ found that Jaupi was not credible. Specifically, the IJ found that Jaupi’s testimony
was inconsistent with her own asylum application, her son’s asylum application, and the current
country conditions. The IJ noted four occasions where Jaupi could have notified authorities that she
was being politically persecuted: (1) in September and October of 1999 when she visited the U.S.
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embassy in Macedonia to apply for a visa; (2) on her way to the United States when the Swiss
authorities stopped her; (3) when she arrived in Chicago; and (4) when she asked for an extension
on her visa in September 2002. In addition, the IJ found that Jaupi testified inconsistently with her
application for asylum.
The IJ also found that, even if Jaupi was credible, she did not show the existence of country
conditions that would warrant a well-founded fear of future persecution. The IJ based its findings
on the Albanian country reports, which indicated that the country conditions had changed since
Jaupi left. The IJ denied her relief for asylum, withholding of removal, and relief under CAT.
On February 25, 2005, Jaupi appealed to the BIA. On May 10, 2005, the BIA summarily
affirmed the IJ. On June 7, 2005, Jaupi petitioned this Court to review the BIA’s order.
II. ANALYSIS
This Court reviews the decision of the IJ directly when the BIA affirms the IJ’s decision
without an opinion. Singh v. Ashcroft, 398 F.3d 396, 401 (6th Cir. 2005); Hasan v. Ashcroft, 397
F.3d 417 (6th Cir. 2005). This Court reviews the IJ’s finding that Jaupi failed to establish her
eligibility for asylum for substantial evidence. INS v. Elias-Zacarias, 502 U.S. 478 (1992). This
Court must affirm the IJ if the IJ’s decision was supported by “reasonable, substantial, and probative
evidence on the record considered as a whole.” Id. at 481; see also Ouda v. INS, 324 F.3d 445, 451
(6th Cir. 2003) (stating that “the petitioner must show that the evidence presented was so compelling
that no reasonable factfinder could fail to find the requisite persecution or fear of persecution.”).
This Court may not reverse the IJ’s decision merely because it would have decided the case
differently. Mikhailevitch v. INS, 146 F.3d 384, 388 (6th Cir. 1998) (citing Klawitter v. INS, 970
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F.2d 149, 151-152 (6th Cir. 1992)). Instead, this Court must find that the evidence not only supports
a finding of persecution or a well-founded fear of persecution, but compels it. Elias-Zacarias, 502
U.S. at 481 n.1. The substantial evidence standard also applies to an agency’s credibility findings.
Yu v. Ashcroft, 364 F.3d 700, 703 (6th Cir. 2004) (holding that “[c]redibility determinations are
findings of fact” which a court should reverse “only if any reasonable adjudicator would be
compelled to conclude to the contrary”). As long as the IJ offers specific and cogent reasons for his
adverse credibility finding, this Court must accord substantial deference to that finding. Vasha v.
Gonzales, 410 F.3d 863, 869 (6th Cir. 2005). An adverse credibility finding must be based on issues
that go to the heart of the applicant’s claim, not irrelevant inconsistencies. Sylla v. INS, 388 F.3d
924, 926 (6th Cir. 2004).
A. Petition for Asylum
The disposition of an application for asylum involves a two-step inquiry: (1) whether the
applicant qualifies as a refugee within the meaning of the INA, and (2) whether the applicant merits
a favorable exercise of discretion by the Attorney General. INA, § 101(a)(42)(A), as amended, 8
U.S.C.A. § 1101(a)(42)(A); see also, INS v. Cardoza-Fonseca, 480 U.S. 421, 428 n.5 (1987).
An alien who seeks asylum must establish that she is a “refugee.” 8 C.F.R. § 208.13(a)
(2003). Section 101(a)(42)(A) of the INA defines a “refugee” as a person unable to return to her
country “because of persecution or 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). Persecution is an “extreme concept” that has been defined as “the infliction of
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suffering or harm” upon those who differ (in race, religion, or political opinion) in a way regarded
as offensive. Ali v. Ashcroft, 366 F.3d 407, 410 (6th Cir. 2004).
1. Past Persecution and Credibility Determination
Jaupi had the burden to show that her fear of persecution was genuine by providing evidence
that would support a reasonable fear that of persecution. Molina-Estrada v. INS, 293 F.3d 1089 (9th
Cir.2002).
The IJ found that Jaupi failed to provide credible, persuasive, and corroborated testimony
in support of her claim of past persecution. Specifically, the IJ noted that Jaupi’s asylum application
omitted critical facts such as the police grabbing her hair and placing her arms behind her back.
Further, her asylum application omitted the November 19, 1999, incident where the police came to
her house, forced her to sit down and grasped her mouth. The IJ also noted that it was strange that
Jaupi never told her son about the police abusing her during their phone calls or in letters.
The main inconsistency was that Jaupi failed to notify the American embassy that she was
being persecuted. The IJ noted four occasions where Jaupi could have claimed that she was
persecuted: (1) in September and October of 1999 when she visited the U.S. Embassy in Macedonia
to apply for passports; (2) on her way to the United States when the Swiss authorities stopped her;
(3) when she arrived in Chicago; and (4) when she asked for an extension on her visa in September
2002.
Given the numerous inconsistences and Jaupi’s failure to provide corroborating evidence,
this Court finds that substantial evidence supports the IJ’s finding that Jaupi failed to present
credible evidence to support her claim of past persecution.
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2. Future Persecution
Absent a showing of past persecution, an applicant does not obtain the benefit of the
presumption of a well-founded fear of future persecution and must demonstrate a “reasonable
possibility” of suffering future persecution. See Mikhailevitch, 146 F.3d at 390; 8 C.F.R. §
1208.13(b)(1)(i). An applicant must demonstrate that she will suffer persecution “on account of
race, religion, nationality, membership in particular social group, or political opinion” upon removal
to her native country, 8 C.F.R. § 1208.12(b)(2)(i)(A), and that “she is unable or unwilling to return.
. . [to that country] because of such fear.” 8 C.F.R. § 1208(b)(2)(i)(C).
Jaupi argues that the “[BIA] failed to recognize that she had been persecuted in Albania
because of her political beliefs and practices” . . . and that “she had been singled out for disparate
treatment on account of her political beliefs and practices.” Petitioner’s Br. at 11. Jaupi admitted
that she was never politically active. Her claim of persecution is based on her son’s political beliefs
and practices that were allegedly imputed to her.
This Court has acknowledged that an applicant for asylum might support her fear of future
persecution based upon the alleged persecution of family members.” See generally, Akhtar v.
Gonzales, 406 F.3d 399, 405-406 (6th Cir. 2005). In Akhtar, the IJ had found that the son of a
murdered political activist, who was apolitical, could not establish that he would be persecuted
because of his political affiliation or as a member of his own immediate family. See id. at 403. The
Court stated that “[a]lthough acts of violence against an alien’s family members may demonstrate
a well-founded fear of persecution, absent a pattern of persecution tied to the asylum applicant
himself or herself, acts of violence against family members do not necessarily demonstrate a well-
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founded fear of persecution.” Id. at 404 (quoting Gebremaria v. Ashcroft, 378 F.3d 734, 739 (8th
Cir.2004)). Although relevant, familial status alone cannot support a claim for persecution.
Similarly, the IJ summarily denied Jaupi’s derivative claim:
there was no pattern or practice in Albania of persecution of person similarly
situated to [Jaupi]. . . of people whose sons have come to the United States
and obtained asylum based upon their affiliation with the Democratic Party
of Albania or anyone else that is not politically active in Albania, but might
be somehow affiliated with or associated with the Democratic Party.
(J.A. 40). The relevant inquiry is not whether there is a pattern or practice of persecuting mothers
of political asylees. The relevant inquiry is whether Jaupi’s son’s political activities were
imputed to her such that the government subjected her to persecution. As indicated in
Akhtar, Jaupi cannot maintain a claim of asylum based on her son’s political affiliation
alone. She must connect her son’s persecution to her own persecution. She was not able to
establish a connection between Artan’s political activities and her own alleged persecution.
Further, the IJ rejected Jaupi’s asylum claim based on the Albanian country reports. The
country reports indicated that there were no confirmed cases of political killings by the government,
no reports of politically motivated disappearances, no cases of detainees being held for strictly
political reasons, and no evidence that individuals are targeted for mistreatment on political grounds.
Thus, this Court affirms the IJ’s denial of Jaupi’s asylum claim.
B. Withholding of Removal and Convention Against Torture
A request for asylum in removal proceedings automatically includes a request for
withholding of removal. See 8 C.F.R. § 1208.3(b). To establish entitlement to withholding of
removal under section 241(b)(3) of the INA, 8 U.S.C. § 1231(b)(3), Jaupi was required to show a
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clear probability of persecution through presentation of evidence establishing that it is more likely
than not that she would be subject to persecution if forced to return to her native land. See Gumbol
v. INS, 815 F.2d 406, 411 (6th Cir. 1987); Castellano-Chacon v. INS, 341 F.3d 533, 545 (6th Cir.
2003). The clear probability standard is more stringent, and thus harder for the alien to meet, than
the well-founded fear of persecution standard used in asylum cases.
In addition, to qualify for protection under the CAT, Jaupi had the burden to show that it is
“more likely than not that . . . she would be tortured if removed to the proposed country of
removal.” Ali v. Reno, 237 F.3d 591, 596 (6th Cir. 2001) (quoting 8 C.F.R. § 208.16(c)(2)). In
making this assessment, evidence to be considered includes evidence of past torture inflicted upon
the applicant, evidence of gross, flagrant, or mass violations of human rights within the country of
removal, and other relevant information regarding conditions in the country of removal. 8 C.F.R.
§ 208.16(c)(3)(i) -(iv).
Since Jaupi could not establish political asylum, she cannot meet the burdens for withholding
of removal and relief under CAT. See Mikhailevitch, 146 F.3d at 391. She did not show that she
was subjected to past torture, she did not come forward with any evidence to dispute the current
Albanian country reports, nor do the current country conditions indicate a widespread problem with
political persecution. Thus, this Court affirms the IJ’s determination that Jaupi was not eligible for
relief of withholding of removal or relief under the CAT.
III. CONCLUSION
Based on the above analysis, this Court DENIES Jaupi’s petition for review.