Feto, Nderim v. Gonzales, Alberto R.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-4337
NDERIM FETO, MATILDA FETO,
ENDRI FETO, and LULJETA FETO,
Petitioners,
v.
ALBERTO R. GONZALES, Attorney General
of the United States,
Respondent.
____________
On Petition for Review of an Order of
the Board of Immigration Appeals.
Nos. A79-602-742, A79-602-741, A79-602-740, A79-602-739
____________
ARGUED MAY 6, 2005—DECIDED JANUARY 4, 2006
____________
Before KANNE, ROVNER, and WOOD, Circuit Judges.
WOOD, Circuit Judge. Nderim, Matilda, Endri, and
Luljeta Feto, citizens of Albania, arrived in Detroit, Michi-
gan, via Mexico sometime around December 17, 2000,
where, as the immigration euphemism goes, they en-
tered the United States “without inspection.” About a
year later, Nderim Feto filed a request for asylum on behalf
of himself and his family, claiming that he was persecuted
because he is a kulak (a prosperous farmer) and because of
his participation with the Albanian Democratic Party, an
opposition political party. His petition was denied and he
received a Notice to Appear on December 26, 2001, charging
2 No. 03-4337
him with removability. At the removal hearing held on
January 16, 2002, Feto conceded removability and re-
quested asylum or alternatively relief under the Convention
Against Torture (CAT). The Immigration Judge (IJ) denied
Feto’s application because he found that Feto had not
suffered past persecution. The IJ also made an adverse
credibility finding based on conflicts between Feto’s testi-
mony at his asylum hearing and his prior written state-
ment. The Board of Immigration Appeals (BIA) affirmed the
IJ’s decision.
In this petition for review, Feto challenges the denial of
asylum and raises a due process claim in connection with
the IJ’s failure to advise him about his eligibility for
voluntary departure and certain other rights. We con-
clude that the IJ’s rulings were supported by substantial
evidence and therefore deny the petition for review.
I
On August 28, 2002, at his asylum hearing, Feto
testified that he was persecuted by the Albanian communist
regime, which was in power from 1945 to 1990. The commu-
nists targeted Feto’s family because they were prosperous,
landowning farmers. The government confiscated his
family’s land and forced them to work as farmers on
government tracts. At one point, the government forcibly
relocated him and his mother to a remote village, in order
to punish them after his uncle fled Albania. It prohibited
Feto from joining youth organizations, knowing that this
would stigmatize him. During his service in the Albanian
army from 1979 to 1981, Feto was assigned to a low-level
labor unit and was not entitled to have a gun issued to him.
After the collapse of the communist government in 1990,
Feto joined the Democratic Party in the belief or hope that
the party would return his family’s land to them. He
participated in several political protests in the late 1990s
No. 03-4337 3
and early 2000s, some of which were related to the return
of land. Feto provided detailed descriptions of several
protests and his arrests in a lengthy written statement that
he included with his asylum application; he also testified
about them at his hearing. Notably, Feto stated that in
1998 he was arrested and held by the police from January
31 to March 15. In June of 2000, he said that he was one of
about 30 individuals who were taken by the police from a
Democratic Party rally and beaten in a van. The IJ denied
Feto’s application for two reasons: first, that the credible
events did not amount to past persecution, and second, that
his testimony “was generally vague, directly inconsistent
with his written application, and . . . appears to have been
either fabricated or exaggerated.”
The IJ found that Feto’s hardship under the communist
regime, including his alleged one-month period of detention
in 1978, did not amount to past persecution. As the
IJ explained, “While it may be true that the respondent’s
family was forced to perform farming and their land
was taken away, I do not find that this treatment rises
to the level of persecution in the past.” In addition, the
IJ found that Feto’s testimony was inconsistent with the
State Department’s Country Profile dated May 2001, which
explains that “[w]ith the Socialist Party currently leading
a coalition government, it is highly unlikely in today’s
circumstances that many applicants will have credible
claims to political persecution.”
With respect to credibility, the IJ made several specific
findings. For example, he noted that Feto was unable to
recall specific incidents mentioned in his written statement
and that his testimony conflicted significantly with the
earlier written submission. One discrepancy—perhaps
minor standing alone—concerned the purpose of the
rally that led to Feto’s one-month detention in March
1998. In his written statement, Feto stated that the demon-
stration was intended to protest the detention of opposition
4 No. 03-4337
political party members. At his hearing, Feto shifted ground
and claimed that the protest was over human rights and the
return of seized land.
Most damaging to Feto’s credibility, from the IJ’s stand-
point, were several discrepancies between Feto’s written
statement and his hearing testimony describing various
detentions. Feto presented two versions of an incident that
occurred on June 13, 2000, when he and a small group of
organizers for the Democratic Alternative organized a rally
that was broken up by the Albanian National Intelligence
Service (SHIK). In version one, recounted in the written
statement, Feto claimed that he was arrested and taken to
a police station in Tirana, where he was beaten on his head
by one agent while another held his hand behind his back.
He claimed that he was told by the police that he would not
live to see the election if he continued to campaign against
the Socialist Party. He was released the following day.
Version two came out at the hearing after Feto was asked
if he had participated in activities with the Democratic
Party or the Democratic Alternative for the 2000 elections.
It was not until the questioner prompted him with his
written statement that he said anything about the June 13
incident. At that point, he testified that he was put in a van
with a few other demonstrators and beaten for 30 minutes
and then let go. The IJ could not believe that Feto would
fail to recall an ordeal as serious as the one laid out in
version one and on this basis discounted Feto’s overall
credibility.
In another example, the IJ referred to Feto’s claim in
his written application that on July 25, 2000, Feto and
some friends organized volunteers to deliver flyers to
raise campaign contributions. Feto claimed that after
the rally “[m]y friend and I were the last to leave . . . as
we started to walk away A [sic] voice called out: ‘I told
you that you would not live to see the election’ when several
gun shots were fired. Although neither my friend or I were
No. 03-4337 5
hit we both fell to the ground.” When asked about this
incident at the hearing, Feto could not recall any incidents
that occurred after June 2000. Asked specifically whether
he recalled the shooting incident mentioned in his written
statement, Feto responded: “These things actually, this
happened pretty often, not only this time.” When the
question was repeated, he responded simply that he did not
recall this specific incident.
These were the discrepancies that prompted the IJ
to conclude that “there [were] meaningful evidentiary
gaps in the respondent’s testimony, in his written ap-
plication and the claim in its entirety that impeach the
overall veracity of the story.” The BIA affirmed the IJ’s
decision, issuing a one-paragraph order finding that Feto
had failed to meet his burden of establishing “past persecu-
tion or a well-founded fear of persecution on account of one
of the statutorily protected grounds, or that it is more likely
than not that he will be persecuted or subjected to torture
upon his return to Albania.” Feto then filed a petition for
review.
II
We review Feto’s claims for asylum, withholding of
removal, and relief under the Convention Against Torture
using the substantial evidence standard. Ahmed v. Ashcroft,
348 F.3d 611, 615 (7th Cir. 2003). “Applying that standard,
we assess whether the BIA’s determination was ‘supported
by reasonable, substantial, and probative evidence on the
record considered as a whole.’ ” Id. (quoting INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992)). We will overturn
the BIA’s decision only “if the record compels a contrary
result.” Brucaj v. Ashcroft, 381 F.3d 602, 606 (7th Cir. 2004)
(citing Georgis v. Ashcroft, 328 F.3d 962, 967-68 (7th Cir.
2003)). We review the BIA’s legal conclusions de novo.
Ahmed, 348 F.3d at 615. Where, as here, the BIA basically
6 No. 03-4337
adopts the IJ’s decision or expresses agreement with it
in conclusory terms, we review the IJ’s decision directly
under the same standards. See Mousa v. INS, 223 F.3d 425,
428 (7th Cir. 2000).
Feto can meet his burden only if he demonstrates past
persecution or a well-founded fear of future persecution on
account of his race, religion, nationality, membership in a
particular social group, or political opinion. 8 U.S.C.
§ 1101(a)(42)(A); Tolosa v. Ashcroft, 384 F.3d 906, 908 (7th
Cir. 2004). Here, Feto seeks to rely on his membership
in the social group of wealthy landowners known as kulaks,
as well as on his political opinions in opposition both to the
former communist government and later governments. He
argues that the harms that befell him in Albania easily
qualified as past persecution, and he tries to excuse the
discrepancies in his account with psychological evidence
indicating that his failures of recollection were attributable
to post-traumatic stress disorder.
In support of the latter point, Feto offered the affidavit of
Jordan J. Miller, a fourth-year graduate student of psychol-
ogy who was working as an extern with the Marjorie Kovler
Center for the Treatment of Survivors of Torture and who
had treated him. Miller’s affidavit included the following
opinion about Feto’s condition:
Mr. Feto also manifests anxiety symptoms, including
feeling worried, irritability, restlessness, difficulty
relaxing, and a decreased ability to concentrate, second-
ary to intrusive thoughts and memories of the trau-
matic events. He also stated that he is having difficulty
sleeping with early awakenings from nightmares,
feelings of terror, and an inability to return to sleep.
This constellation of symptoms are consistent with the
diagnosis of PTSD, chronic type.
Feto argues that the IJ must not have considered Miller’s
affidavit, because he did not discuss it in his opinion. Feto
No. 03-4337 7
also criticizes the IJ for ignoring other documentary
evidence such as a newspaper article that featured cer-
tain events of his persecution.
The IJ was not, however, compelled to accept Feto’s
explanation for the plain inconsistencies in his story.
Instead, he was entitled to weigh Miller’s opinion along
with the other evidence in the case, including his direct
observations of Feto at the hearing. Although this court
does not function as a rubber-stamp for IJ findings, it
remains true that our review is deferential. “The IJ’s
credibility determinations, as adopted by the BIA, are
questions of fact and should only be overturned under
extraordinary circumstances, although they must be
supported by specific, cogent reasons that bear a legitimate
nexus to the finding.” Jamal-Daoud v. Gonzales, 403 F.3d
918, 922 (7th Cir. 2005) (citing Balogun v. Ashcroft, 374
F.3d 492, 498 (7th Cir. 2004)). The rule that the testimony
of a credible applicant may be enough to meet the burden
of proof without further corroboration, see Uwase v.
Ashcroft, 349 F.3d 1039, 1041 (7th Cir. 2003), does not help
Feto here, because the IJ found Feto not to be credible and
supported that finding with particulars from the record.
Bearing in mind the rule that “[a] reviewing court
must uphold an administrative determination in an im-
migration case unless the evidence compels a conclusion to
the contrary,” Kenyeres v. Ashcroft, 538 U.S. 1301, 1306
(2003) (citing Elias-Zacarias, 502 U.S. at 481 n.1, 483-84),
we conclude that the IJ’s credibility determination is
entitled to deference. The remaining evidence of the
indignities Feto and his family suffered during the commu-
nist era is not so strong as to compel a finding of past
persecution. The IJ was therefore entitled to conclude that
Feto (and thus derivatively the other members of his
family) did not meet the statutory requirement for refugee
status.
8 No. 03-4337
Feto also raises a due process claim, based on the fact
that the IJ did not advise him of various rights spelled
out in 8 C.F.R. § 1240.10(a), such as the right to representa-
tion, present evidence, and cross-examine the government’s
witnesses. He also claims that the IJ violated his right to
due process by failing to advise him of his right to voluntary
departure, 8 C.F.R. § 1240.11(a)(2). At the time we heard
this case, the government argued that we lacked jurisdic-
tion to consider this point. The amendments to the immi-
gration laws made by the REAL ID Act of 2005, Pub. L. No.
109-13, 119 Stat. 231 (2005), however, have eliminated all
doubt about our jurisdiction to consider constitutional and
legal claims. See Hamdan v. Gonzales, 425 F.3d 1051, 1057
(7th Cir. 2005); Ramos v. Gonzales, 414 F.3d 800, 801-02
(7th Cir. 2005). We turn, therefore, to the merits of this part
of Feto’s petition.
Aliens are entitled to due process during immigration
proceedings. Hasanaj v. Ashcroft, 385 F.3d 780, 783 (7th
Cir. 2004). We review de novo claims of due process viola-
tions in removal proceedings. Id. Before we can reach most
issues, however, the alien is required to raise them before
the BIA. Capric v. Ashcroft, 355 F.3d 1075, 1087 (7th Cir.
2004). The only exception is where the BIA itself would be
powerless to address the problem, as might be the case with
some fundamental constitutional claims. As we have noted
before, however, many due process arguments are based on
procedural failings that the BIA is capable of addressing.
Id. In those instances, the alien must exhaust his or her
remedies at the BIA before bringing the claim before this
court. Moreover, even if this court can reach an unexhaust-
ed claim, the petitioner must prove prejudice in order to
prevail. Roman v. INS, 233 F.3d 1027, 1033 (7th Cir. 2000).
In this case, Feto was represented by an attorney in his
removal proceeding. Compare Jacinto v. INS, 208 F.3d 725,
734 (9th Cir. 2000) (finding a due process violation during
pro se petitioner’s removal hearing because the IJ did not
No. 03-4337 9
explain to the petitioner her right to testify and present
evidence). Feto filed a brief in connection with his appeal to
the BIA, yet his brief contains no mention of any procedural
flaws in the IJ’s handling of the case, much less any of
constitutional dimension. The BIA has the power to direct
IJs to follow the procedures outlined in the agency’s
regulations. We conclude, therefore, that Feto had an
obligation to exhaust this argument and that his failure to
do so prevents us from reaching it.
We add, alternatively, that even if these arguments were
not subject to the exhaustion rule, they have no merit. The
failure of the IJ to spell out the protections found in 8
C.F.R. § 1240.10 was, if error at all, harmless in Feto’s case.
He was represented by counsel, the IJ conducted a hearing
and heard testimony, and evidence was admitted to support
Feto’s application. With respect to voluntary departure, the
IJ actually did mention it, but only in the course of explain-
ing to Feto that he was not qualified for this option because
he did not have valid travel documents and he had not
shown that he was willing to depart.
For all these reasons, we DENY the petition for review.
10 No. 03-4337
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-4-06