Grishaj v. Gonzales

NOT RECOMMENDED FOR PUBLICATION
File Name: 06a0602n.06
Filed: August 21, 2006
Nos. 05-3386/05-3996
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Pellumb David Grishaj, )
)
Petitioner, )
)
v. ) On Petition for Review of an Order of
) The Board of Immigration Appeals
Alberto R. Gonzales, )
)
Respondent. )
)
)
BEFORE: Merritt and Gibbons, Circuit Judges, and O’Meara, District Judge.*
MERRITT, Circuit Judge. Petitioner Pellumb David Grishaj seeks review of a decision
by the Board of Immigration Appeals upholding an immigration judge’s denial of his application
for asylum under section 208(a) of the Immigration and Nationality Act, 8 U.S.C. § 1158(a) and
withholding of removal pursuant to section 241(b)(3)(A) of the Immigration and Nationality Act,
8 U.S.C. §1231(b)(3)(A).1 He also appeals the denial of his motion to reopen his case based on new
evidence. For the following reasons, the petition is denied.
*
The Honorable John Corbett O’Meara, United States District Judge for the Eastern District
of Michigan, sitting by designation.
1
Grishaj also requested withholding of removal pursuant to the United Nations Convention
Against Torture, 8 C.F.R. § 1208.16, which was also denied by the Board of Immigration Appeals.
He has not pursued the denial of withholding under this section in his petition to this Court.
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I.
Grishaj is an ethnic Albanian from Kosovo, part of the former Republic of Yugoslavia and
now a province of the independent country of Serbia.2 Grishaj’s petition for asylum arises from
conflicts in Kosovo during the breakup of Yugoslavia. Kosovo is an autonomous province in Serbia
located in the south of the country with a population of around two million people, predominately
ethnic Albanians, with smaller populations of Serbs and other ethnic groups. The province is the
subject of a long-running political and territorial dispute between the Serbian (and previously, the
Yugoslav) government and Kosovo’s Albanian population, most recently in the 1990s when
confrontations between ethnic Albanians and Serbs drew world attention to the province. Kosovo
has been under Serbian sovereignty since 1912.
Grishaj claims he became involved in the Kosovo independence movement while he was
attending university in the early 1990s. He attended rallies but was not a member of any political
organization. Transcript of Removal Hearing, Nov. 14, 2003, at 65. After graduating, he lived in
the southern part of Kosovo and testified that he joined an organization called the “Movement of
Kosovar People” that advocated for rights for Albanian Kosovars. He testified that he spoke at
meetings as well as solicited members by going door-to-door. He was also in charge of getting the
group’s pamphlets printed and he sometimes distributed literature as well. Id. at 68-69.
2
After a referendum in the spring of 2006, Montenegro voted for independence from Serbia,
which became effective in June 2006. Serbia and Montenegro are now two independent, sovereign
nations.
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In 1994, he obtained employment as a teacher of Albanian language and literature. The
Movement of Kosovar People group disbanded, allegedly due to the detention of some of its
members by Serbian forces. Grishaj testified that he continued his involvement with Albanian
nationals by attending rallies and demonstrations against the Serbian government. Id. at 71. Grishaj
was dismissed from his job in 1997 and told it was due to financial hardship, but Grishaj believes
it was based on ethnic discrimination. He then taught private Albanian language lessons despite a
law passed in 1998 that banned the teaching of Albanian. Grishaj testified that it was very
dangerous to teach Albanian in contravention of the law, testifying that Serbians would kill those
violating the anti-Albanian law. Id. at 73. He left Kosovo in February 1999 because he believed
his life was in “jeopardy” due to his affiliation with the Movement of Kosovar People and his
teaching of Albanian. Id. at 74. He traveled to Montenegro, Slovenia and then to the United States,
where he entered in May 1999 using a fraudulent passport. Id. at 80. At his removal hearing in
November 2003, Grishaj testified that at the time of the hearing he believed he would still be in
danger if he returned to Kosovo. Id. at 75-76.
Grishaj’s sister testified at the removal hearing that shortly after he left home in February
1999, the family was forced to leave their home in Kosovo and go to Albania to seek refuge because
masked, armed gunmen invaded their home and threatened that they would be dead if they were not
gone by the next day, telling them to go back where they came from. Id. at 58.
At the conclusion of the hearing, the Immigration Judge issued an oral order denying Grishaj
relief. In re Grishaj, A77823312-Detroit (U.S. Imm. Ct. Nov. 14, 2003) (transcription of oral order).
The Immigration Judge noted several discrepancies between the testimony given at the hearing and
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information included on the asylum application, but she did not rely on an adverse credibility finding
to deny the application. Instead, she found that even assuming Grishaj demonstrated past
persecution, the changed conditions in Kosovo rendered any past persecution moot. She also found
that he did not show a well-founded fear of future persecution due to the increased stability in the
country, including the presence of UN peacekeepers and the formation of a new government.
Grishaj appealed to the Board of Immigration Appeals, which affirmed and adopted the
decision of the Immigration Judge, specifically noting that the changed conditions in Kosovo since
1999 made Grishaj’s fear of future persecution unreasonable. In re Grishaj, A77823312 -Detroit
(BIA Mar. 7, 2005). Grishaj appealed the denial of his asylum application to this Court and filed
a motion to reopen his case with the Board of Immigration Appeals. The Board denied his motion
to reopen because he failed to file any additional material evidence likely to change the result of the
case. In re Grishaj, A77823312-Detroit (BIA July 28, 2005). Grishaj appealed the denial of his
motion to reopen to this Court and that appeal was consolidated with the appeal of the denial of his
asylum application.
II.
A determination by an immigration judge and the Board of Immigration Appeals that an
applicant has failed to satisfy his burden of establishing eligibility for asylum or withholding of
removal must be upheld if it is “supported by reasonable, substantial, and probative evidence on the
record considered as a whole.” Koliada v. INS, 259 F.3d 482, 486 (6th Cir. 2001)(quoting INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992)). We may only reverse an immigration judge if we find
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the evidence compels a contrary conclusion. 8 U.S.C. § 1252(b)(4)(B); Koliada, 259 F.3d at 486.
Application for Asylum
According to 8 U.S.C. § 1158(b)(1), the Attorney General is possessed with authority to
grant asylum to an immigrant who is found to be a “refugee.” INS v. Cardoza-Fonseca, 480 U.S.
421, 427-28 (1987); Koliada, 259 F.3d at 486. A “refugee” is defined as including a person who
is unable or unwilling to return to his native 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 determination of whether to grant or deny a request for asylum involves a two-step
inquiry. First, an applicant bears the burden of demonstrating the existence of past persecution or
a well-founded fear of future persecution. Yu v. Ashcroft, 364 F.3d 700, 703 (6th Cir. 2004).
Second, the applicant must demonstrate that he “merits a favorable exercise of discretion by the
Attorney General.” Ouda v. INS, 324 F.3d 445, 451 (6th Cir. 2003). The credible testimony of an
asylum applicant may be sufficient to sustain the burden of proof without further corroboration. Id.
at 451-52.
Grishaj does not make a claim of past persecution in Kosovo, outside of an uncorroborated
claim that he believed he was dismissed from his job as a teacher of Albanian language and literature
due to his ethnicity. Therefore, our focus will be on whether he has established a well-founded fear
of future persecution. An applicant must (1) actually fear that he will be persecuted upon return to
his native country, and (2) proffer evidence that establishes that his fear is objectively reasonable.
Perkovic v. INS, 33 F.3d 615, 620-21 (6th Cir. 1994). Furthermore, he must be able to demonstrate
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that the feared persecution would be on account of his race, religion, nationality, membership in a
particular social group, or political opinion. Id. at 621.
Grishaj maintains that he will be persecuted by the government upon his return to Serbia
because of his Albanian ethnicity and the fact that he demonstrated against the Serbian government.
He also claims that he will face persecution from fellow ethnic Albanians because he left Kosovo
instead of staying to fight against the Serbians. Both the Board of Immigration Appeals and the
Immigration Judge concluded that Grishaj does not have a well-founded fear of persecution due to
changed country conditions, specifically referencing the presence of United Nations peacekeepers
in Kosovo and a lack of evidence that ethnic Albanians currently are subject to persecution in
Kosovo. Since the end of 1999, Kosovo has been governed by the United Nations Interim
Administrative Mission in Kosovo (UNMIK) and the locally elected Provisional Institutions of Self-
Government with little direct involvement from the Serbian government. Security is maintained by
the NATO-led Kosovo Force (KFOR) and Kosovo Police Service. Relying on the 2002 “Country
Report” for Serbia-Montenegro, issued by the State Department, the Immigration Judge found that
since the United Nations took control of the government, the country conditions have changed
substantially and Albanians from Kosovo are not subject to a pattern or practice of mistreatment.
See Country Reports on Human Rights Practices for 2002, released by the Bureau of Democracy,
Human Rights, and Labor, United States Department of State.
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We find this conclusion supported by substantial evidence.3 We acknowledge the long
history of violence against ethnic Albanians in Yugoslavia. However, the last several years have
brought substantial change to the governmental structure of Serbia and Kosovo, including the
possibility of future independence for Kosovo. The changes in government, coupled with the
presence of UN peacekeeping forces, are sufficient to support the decision of the Board of
Immigration Appeals in this case.
Withholding of Removal
Grishaj also requested withholding of removal. The burden of proof for withholding of
removal is higher than that of an asylum claim. An applicant must demonstrate a “clear probability”
that he will be subjected to persecution based on his “race, religion, nationality, membership in a
particular social group, or political opinion” if forced to return to his native land. 8 U.S.C. §
1231(b)(3)(A); Castellano-Chacon v. INS, 341 F.3d 533, 545 (6th Cir. 2003). To establish a “clear
probability” of future persecution, the “applicant must demonstrate that ‘it is more likely than not’
that he or she will be persecuted upon return.” Liti v. Gonzales, 411 F.3d 631, 641 (6th Cir. 2005)
(quoting 8 C.F.R. § 1208.16(b)(2)). The “clear probability” standard is stricter than the “well-
founded fear of persecution” standard utilized in asylum cases. Therefore, an applicant who does
3
Indeed, the most recent “Country Report” for Kosovo, issued in March 2006, continues to
support that changed circumstances in that region render Grishaj’s fear of future persecution
unreasonable. Moreover, international negotiations began in 2006 to determine the final status of
Kosovo, particularly the issue of sovereignty; it is widely expected that the talks will lead to some
form of independence for Kosovo. While acknowledging that serious problems with human rights
still exist in Kosovo, the Country Report stated that the government generally respected the human
rights of all its citizens. See Country Reports on Human Rights Practices for 2005, released by the
Bureau of Democracy, Human Rights, and Labor, United States Department of State, March 8, 2006.
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not meet the eligibility requirements for a grant of asylum necessarily fails to meet the more
stringent standards required for withholding. Koliada, 259 F.3d at 489.
Motion to Reopen
We review denial of a motion to reopen an immigration proceeding under an abuse of
discretion standard. An abuse of discretion occurs when the Board makes a decision “without a
rational explanation, inexplicably depart[ing] from established policies, or rest[ing] on an
impermissible basis . . . .” Balani v. INS, 669 F.2d 1157, 1161 (6th Cir. 1982). The Board of
Immigration Appeals found that Grishaj had not submitted evidence that would cause it to change
its earlier decision and therefore declined reopen the proceeding. In re Grishaj, A77823312-Detroit
(BIA July 28, 2005).
Grishaj’s motion to reopen was largely based on the newly-released Home Office Report on
Kosovo, which updated the status of the political and human rights conditions in Kosovo. The
Report included an account of renewed ethnic violence in the town of Mitrovica in 2004. The
Board found that the additional documents indicated some “political discord” in Kosovo, but they
did not offer material evidence sufficient to change the original finding that Grishaj has no well-
founded fear of future persecution. Because we find that the Board’s decision to deny the motion
to reopen has a rational explanation, we are unable to conclude that the Board abused its discretion
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in denying the motion and we therefore affirm the denial of the motion to reopen the proceedings.4
For the foregoing reasons, we affirm the decision of the Board of Immigration Appeals.
.
4
The Board erroneously stated in its denial of the motion to reopen that the Immigration
Judge based her decision to deny Grishaj’s asylum application primarily on adverse credibility
findings. However, the Immigration Judge explicitly stated that she was resting her decision on
changed circumstances in Kosovo, not on any adverse credibility findings. This error was harmless
because the Board’s original decision affirming the Immigration Judge did not make this error and
the denial of the motion to reopen was not based on any adverse credibility findings.
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