Agraja, Aleksander v. Gonzales, Alberto R.

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued August 3, 2005
Decided October 20, 2005
Before
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 04-2221
ALEKSANDER AGRAJA, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals
v. No. A 78 927 570
ALBERTO GONZALES, Attorney
General of the United States,
Respondent.
ORDER
Aleksander Agraja is an Albanian citizen who is seeking asylum in the United
States based on alleged political persecution he suffered at the hands of the Socialist
Party government, which held power at the time he left Albania in early 2001. The IJ
denied his application, and the BIA adopted that decision in a one-judge order that
supplied additional reasons for rejecting Agraja’s claim. Agraja’s petition for review in
this court presents two contentions that were exhausted before the BIA: first, that the
IJ erred by discounting a purported medical record intended to corroborate Agraja’s
claim that Albanian authorities broke his leg during a politically motivated beating,
and second, that the IJ erred by refusing to recognize his witness on Albanian political
affairs as an expert. Because both evidentiary decisions fell within the bounds of
discretion that the agency may exercise, and in any event neither one could have
prejudiced Agraja, we deny his petition for review.
No. 04-2221 Page 2
I
Agraja, who turned 24 just before departing Albania, waded across the
Rio Grande in February 2001 from Mexico to Texas, but he was immediately
intercepted on the Texas side by the U.S. Border Patrol. The former INS initiated
removal proceedings, and exactly one year after his entry, Agraja applied for asylum.
(He also sought withholding of removal and relief under the Convention Against
Torture, but we have no need to discuss those points separately.) Agraja claimed in his
application for asylum, which he completed with the assistance of counsel, that he
suffered repeated detentions and beatings by the secret police after the Socialist Party
(which he equates with the “communists”) took power in early 1997 following the
collapse of the Democratic Party government of Sali Berisha. The reason for his
mistreatment, he asserted, was his political views. Agraja specifically recounted a
severe beating he received in July 2000 in response to his support for democratic
ideals, during which the police deliberately broke his right leg, which then became
infected. He also claimed that his family had suffered persecution on the basis of their
religion and social group for a lengthy period of time dating back to just after World
War II, but his application and later testimony make nothing of the latter two grounds
with respect to the time period after the 1997 change in governments.
At his removal hearing, Agraja testified that from 1997 through the incident in
July 2000, agents of the communist-controlled secret police repeatedly imprisoned and
beat him for attending Democratic Party demonstrations. Occasionally, they held him
for periods ranging from two weeks to a month. During one especially harsh period of
imprisonment, the secret police broke his leg and then dumped him at his home ten
days later, after the untreated break had become infected. He reported that a doctor
operated on the leg and inserted a metal bar, but the bar was removed five months
later. To corroborate his story, Agraja presented a handwritten document that he
obtained through the mail from an uncle who still lives in Albania, which supposedly
was from the hospital where the procedure was performed. The unauthenticated
English translation reflects that Agraja entered the hospital on July 12, 2000, with the
Latin diagnosis “[c]ontusio tramatica geni dex. et fractura maleoli let” (which roughly
translates to a traumatic contusion to the right knee and a fractured ankle), and that
at some point was operated on with a “slab and screw.” The document adds, without
elaboration, that a “materials drawing” was made on December 7, 2000. But the
document offers no insight into how Agraja injured his leg. After this procedure, Agraja
fled Albania because he feared being beaten again or killed.
Upon cross-examination, Agraja admitted that he lacked corroborating evidence
of his involvement in the Democratic Party, and that neither his parents (both then in
the United States on visitor visas) nor any of his six siblings (one living in the United
States, two in Italy, one in England, and the other two still in Albania) had provided
an affidavit or even a letter to support his claim of persecution. Agraja admitted that
he did not even tell his parents about the asylum hearing, even though they were
No. 04-2221 Page 3
staying a few hours away in Michigan. He testified further that he departed Albania
with what he believed to be a valid visa to enter the United States, and that only after
traveling through several countries and entering by way of Mexico did he discover the
visa to be a fake.
In addition to Agraja, the IJ heard testimony from Prenk Camaj, who Agraja was
trying to use as an expert on the history, political climate, and interactions of the
political parties in Albania. But the IJ concluded from studying Camaj’s curriculum
vitae that he lacked the “academic preparation” and “publications” to qualify as an
expert. This meant that the IJ gave Camaj’s testimony only the weight that would be
afforded to any lay witness.
In denying Agraja’s application, the IJ found that his claim was “completely
unsupported,” and that his “testimony alone” was “insufficient to establish the factual
proposition on which his case relies.” The IJ thought it suspicious that family members
living in the United States would not have attempted to support Agraja’s claim by
backing his account of his experiences or testifying about their own. The IJ also
characterized Agraja’s medical record as “unreliable and unauthenticated” because it
is not drafted on hospital stationery, because the authoring doctor’s signature is not
authenticated, and because it is “not fully translated” (only the parts written in
Albanian were translated; the Latin diagnosis was simply repeated verbatim in the
translated version – exactly as we have just used a Latin word here).
Agraja appealed to the BIA, claiming that his due process rights were violated
when the IJ rejected Camaj as an expert witness and refused to credit the medical
document. In adopting the IJ’s decision, the BIA pointed out that “[e]ven if the
respondent’s witness was recognized as an expert and even if his medical certificate
had been fully credited, the respondent would still have failed to meet his burden of
proof.” The BIA reasoned that neither Camaj nor the purported medical record lent any
support to Agraja’s testimony that he actually was a member of the Democratic Party
or that the broken leg came at the hands of the secret police.
II
In this court, Agraja focuses entirely on political persecution. The overlapping
contentions in his brief are difficult to parse; three of the four “issues” he identifies
speak in terms of denials of “due process” and “fundamental fairness,” but in essence
the argument section of the brief makes four conventional arguments: (1) the IJ never
made an explicit credibility finding; (2) the IJ erroneously discounted the corroborative
value of the medical record; (3) the IJ wrongly refused to recognize Camaj as an expert;
and (4) the BIA, by issuing a one-judge order adopting the IJ’s decision, did not engage
in meaningful review. Georgis v. Ashcroft, 328 F.3d 962, 966-67 (7th Cir. 2003),
resolved the last point against Agraja, and we have no inclination to revisit that
decision. As we regularly do, we will review the IJ’s decision here, as supplemented by
No. 04-2221 Page 4
the BIA. Zheng v. Gonzales, 409 F.3d 804, 809 (7th Cir. 2005). We therefore turn to his
other three points.
A. Credibility
The problem with Agraja’s complaint that the IJ failed to make an explicit
credibility determination is that he has raised this point for the first time in his
petition for review. Agraja’s failure to present the issue to the BIA means, as the
government has argued in this court, that Agraja has waived this argument. See 8
U.S.C. § 1252(d)(1); Mojsilovic v. INS, 156 F.3d 743, 748 (7th Cir. 1998). We therefore
have no further comment on the adequacy of the IJ’s treatment of the credibility issue.
B. Medical Record and Expert Testimony
What remains are Agraja’s exhausted arguments that he was denied due process
when the IJ failed to give any weight to the medical record he proffered and refused to
recognize Camaj as an expert witness. The IJ’s concern about the medical record’s lack
of authentication was valid, see Georgis, 328 F.3d at 969 (requiring authentication of
documents introduced in immigration proceedings through any recognized procedure),
and was enough in itself to support the judge’s decision to exclude it. (Our view might
have been different if the exclusion had rested only on the fact that the Latin diagnosis
was not translated. Does this mean that the Supreme Court needs to provide
interpreters when it refers to writs of certiorari? Would this also necessitate an
officially certified Latin interpreter, if there are any left outside of the Vatican, to
interpret a phrase like res ipsa loquitur or expresio unius est exclusio alterius if it
shows up in a French-language legal document? Fortunately, the IJ’s aversion to Latin
had no practical effect on the present case, given the serious problem with
authentication.)
The IJ may have imposed an unduly high standard on Camaj, given the fact that
there is no hard-and-fast rule that a witness must write books or publish academic
articles on the subject matter of his or her testimony in order to qualify as an expert,
Niam v. Ashcroft, 354 F.3d 652, 660 (7th Cir. 2004), and the fact that Camaj had
testified as an expert in other immigration cases, see Hysi v. Gonzales, 411 F.3d 847,
850 (7th Cir. 2005). On the other hand, it is not necessarily a compliment to be known
as a professional witness (if indeed one could say this of Camaj), and an asylum
applicant recently accused Camaj of unethical conduct in another circuit, though that
court never decided whether the accusation was well founded. See Sinistaj v. Ashcroft,
376 F.3d 516, 517-18 (6th Cir. 2004) (noting that petitioner accused Camaj of
fraudulently holding himself out as qualified to represent aliens before the INS and
erroneously advising alien to submit false and inconsistent information to the Service).
In the end, even if both evidentiary rulings can be faulted, the BIA reasonably
concluded that Agraja could not have been prejudiced by either one. See Podio v. INS,
No. 04-2221 Page 5
153 F.3d 506, 511 (7th Cir. 1998) (observing that petitioner complaining about IJ’s
refusal to entertain witness testimony must show that excluded testimony had
potential to affect outcome). The BIA correctly pointed out that, even taking Agraja’s
medical document at face value, it does nothing to link his injury to the Albanian
authorities or the claimed persecution. At best the document shows that his leg was
in fact broken and operated on. Likewise, not affording Camaj the status of expert did
not prejudice Agraja. The IJ heard everything Camaj had to say, albeit as a lay
witness. Camaj’s testimony related to the political climate in Albania, specifically the
relations among the political parties. Even without deeming Camaj an expert, the IJ
accepted the fact that the police in Albania often abuse detainees. Nonetheless,
because the IJ rejected Agraja’s claim that he was a member of the Democratic Party,
nothing Camaj said and nothing about his status could have salvaged Agraja’s case.
For these reasons, we DENY the petition for review.