Mardusha v. Mukasey , 303 F. App'x 245 ( 2008 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0748n.06
Filed: December 8, 2008
No. 07-3157
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SILVANA MARDUSHA, )
)
Petitioner, ) ON PETITION FOR REVIEW
) OF AN ORDER OF THE
v. ) BOARD OF IMMIGRATION
) APPEALS
MICHAEL B. MUKASEY, United )
States Attorney General, )
) OPINION
Respondent. )
_______________________________________)
Before: MERRITT, MOORE, and COLE, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. Petitioner, Silvana Mardusha (“Mardusha”),
seeks review of the order of the Board of Immigration Appeals (“BIA”) that affirmed the
immigration judge’s (“IJ”) decision to deny Mardusha’s petition for asylum and withholding of
removal. Mardusha argues that the IJ’s determination that Mardusha had not made a sufficient
showing to establish her date of entry deprived Mardusha of her right to due process. Mardusha also
asserts that the BIA abused its discretion when it affirmed the IJ’s decision to deny Mardusha asylum
and withholding of removal on the grounds that Mardusha was not credible. For the reasons
discussed below, we DENY the petition for review of the BIA’s order denying Mardusha asylum and
withholding of removal.
I. BACKGROUND
Mardusha is an Albanian citizen who was born in Shkoder, Albania in 1974. Joint Appendix
(“J.A.”) at 125 (App. for Asylum at 1). Mardusha is single and has two children who were born in
the United States and who are United States citizens. J.A. at 126-27 (App. for Asylum at 2-3). In
Albania, Mardusha was a member of the Democratic Party (“DP”) and worked as the host of a
children’s television program. J.A. at 130 (App. for Asylum at 6). Mardusha asserts that because
of her visibility and political affiliation, she was persecuted by the Albanian police. Id.
At her merits hearing before the IJ, Mardusha testified that she and her family first became
involved in the democratic movement in Albania in 1990. J.A. at 79 (Hr’g Tr. at 26). Mardusha
explained that she officially became a member of the DP after she participated in a demonstration
on April 2, 1991. J.A. at 80 (Hr’g Tr. at 27). The first major event that Mardusha described at her
hearing was the death of her uncle. J.A. at 80-82 (Hr’g Tr. at 27-29). Mardusha testified that in
November of 1999, her uncle broke up a fight between his wife and the wife of a police officer. Id.
Mardusha explained that the police officer’s wife called her husband and that, in response, the police
came to Mardusha’s uncle’s house and shot him inside his home1 in front of his family. Id.
Mardusha was not present when her uncle was killed, but Mardusha stated that her aunt witnessed
the shooting and told Mardusha what had happened. Id.
Around the time of her uncle’s death, Mardusha started to have difficulties with the police.
Mardusha testified that in 1998 when she began appearing on television, a police officer approached
1
Mardusha submitted a newspaper article regarding her uncle’s murder which stated that he
was shot in his front yard, not while he was inside his home as Mardusha testified. J.A. at 117 (Hr’g
Tr. at 66). When the IJ noted this difference, Mardusha explained that the article had misreported
that detail but that she had submitted the article despite the error because it highlighted the
importance and political nature of her uncle’s murder. J.A. at 117-18 (Hr’g Tr. at 66-67).
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her as a fan of her show. J.A. at 115 (Hr’g Tr. at 64). Mardusha explained that this police officer
began to stalk her and to threaten her and her friends. J.A. at 92-93 (Hr’g Tr. at 41-42). Mardusha
told the IJ that the problems with her stalker intensified after her uncle died because she continued
to question publicly the circumstances surrounding her uncle’s death. J.A. at 113-14 (Hr’g Tr. at 62-
63). Mardusha stated that shortly after her uncle’s death, also in November 1999, the police detained
her. J.A. at 89 (Hr’g Tr. at 38). The police threatened Mardusha during this time, and the officer
who had been stalking Mardusha was present. Id.
After her uncle’s death, Mardusha’s stalker and other police officers continued to follow her.
J.A. at 90 (Hr’g Tr. at 39). This police harassment culminated in Mardusha’s kidnapping in
December 2000. J.A. at 90-91 (Hr’g Tr. at 39-40). Mardusha testified that as she was walking
home, some men grabbed her, threw her into a van, tied her up, and brought her to a house. Id.
According to Mardusha’s hearing testimony, the police officer who had been stalking her arrived at
this house, removed her clothing, punched her, and did “what he wanted to do for a long time.”2 Id.
Mardusha was later able to escape and return home. J.A. at 92 (Hr’g Tr. at 41).
Mardusha testified that after this kidnapping and assault she went into hiding, but the police
were still able to find and follow her. J.A. at 93-94 (Hr’g Tr. at 42-43). As a result of this on-going
persecution, Mardusha decided to leave Albania. Mardusha’s parents paid a man who got Mardusha
a fake passport and accompanied her to America. J.A. at 94-95 (Hr’g Tr. at 43-44). Mardusha
testified that she arrived in America on January 5, 2001, but that she had no paperwork to prove this
2
As the IJ noted, in the statement that Mardusha submitted with her application for asylum,
Mardusha mentioned the December 2000 kidnapping but stated that she had been kidnapped by
“some unknown men” and did not note the presence of the officer who had been stalking her. J.A.
at 39-40 (IJ Decision at 17-18); see also J.A. at 158 (Mardusha Stmt. at 2).
3
because the man who brought her into America had kept all of the documentation. J.A. at 95-101
(Hr’g Tr. at 44-50).
Mardusha filed an application for asylum and withholding of removal in November 2001.
J.A. at 146 (App. for Asylum at 1). On January 22, 2002, the Immigration and Naturalization
Service issued a Notice to Appear (“NTA”) charging Mardusha with removability under 8 U.S.C.
§ 1182(a)(6)(A)(i). J.A. at 244 (NTA at 1). On October 8, 2003, Mardusha and her counsel
appeared before an IJ, and Mardusha conceded removability. J.A. at 62-63 (2003 Hr’g Tr. at 11-12).
Mardusha’s merits hearing was held on July 11, 2005. Mardusha testified to the events described
above, submitted corroborating documents, and asserted that she feared she would be killed if she
returned to Albania. J.A. at 95 (Hr’g Tr. at 44).
The IJ issued an oral decision denying Mardusha asylum and withholding of removal. The
IJ first found that Mardusha “has not satisfied the requirement of showing by clear and convincing
evidence that her application for asylum was made within one year of her last arrival.” J.A. at 25
(IJ Decision at 3). Though the IJ concluded that Mardusha’s application for asylum was untimely,
the IJ went on to consider Mardusha’s testimony. The IJ found Mardusha not credible based on the
following inconsistencies:
• Mardusha testified that her uncle was killed inside his home while the newspaper
article she submitted stated that he was killed outside. Accounts of the dispute
that led to the killing also differed. J.A. at 37-38 (IJ Decision at 15-16).
• Mardusha submitted a document from a DP leader which failed to mention her
detention after the April 1991 rally. J.A. at 38-39 (IJ Decision at 16-17).
• Mardusha’s application for asylum had included the 2000 kidnapping, but it did
not state that the officer who had been stalking her was present at the kidnapping
or that he had raped her. She testified for the first time at the hearing that her
stalker participated in her kidnapping. J.A. at 39-40 (IJ Decision at 17-18).
4
The IJ also noted that Mardusha had not submitted much credible corroborating material and that
she had not submitted material that was available to her that would have corroborated her testimony.
J.A. at 40-43 (IJ Decision at 18-21). Mardusha had not, for example, submitted affidavits from her
family members to corroborate her date of entry or her kidnapping even though some of her relatives
lived in America or had provided affidavits attesting to other information. Id. The IJ also found that
Mardusha had not alleged sufficiently that the events she described, such as her kidnapping and her
uncle’s death, were politically motivated, and that therefore, she had not “established that she is
entitled to” asylum or to withholding of removal under the Immigration and Nationality Act (“INA”).
J.A. at 42-46 (IJ Decision at 20-24). The IJ finally concluded that Mardusha did not qualify for
withholding of removal under the Convention Against Torture (“CAT”) because she had not shown
that the government of Albania either directed or acquiesced in the events she described and hence
she could not establish that it was likely that she would be tortured by the government if she returned
to Albania. J.A. at 46 (IJ Decision at 24).
Mardusha appealed the IJ’s decision to the BIA. Mardusha argued that she had met her
burden of establishing her date of entry because the government included the date of entry from her
application for asylum in its NTA, and she conceded removability based on this document. J.A. at
11-12 (Mardusha BIA Br. at 4-5). Mardusha next suggested that the IJ had not made a specific
finding that Mardusha was not credible and that any implications that Mardusha was not credible
were not due deference. J.A. at 12-14 (Mardusha BIA Br. at 5-7). Mardusha also asserted that she
had suffered persecution and that she had shown that this persecution was politically motivated. J.A.
at 14-15 (Mardusha BIA Br. at 7-8).
5
On January 31, 2007, the BIA dismissed Mardusha’s appeal and upheld the IJ’s denial of
asylum and withholding of removal. J.A. at 2-4 (BIA Order at 1-3). The BIA noted that although
the NTA contained a date of entry, the government contested this date at the hearing, and Mardusha
failed to provide any evidence to support this date. J.A. at 3 (BIA Order at 2). The BIA concluded
that there was “no reason to disturb the [IJ’s] decision denying [Mardusha’s] application for asylum
as untimely.” Id. The BIA also concluded that the IJ’s determination that Mardusha was not
credible was supported by the record and that the IJ had “provide[d] specific and cogent reasons”
for finding that Mardusha was not credible. Id. The BIA specifically noted that Mardusha’s
testimony that her uncle was killed inside his home was contradicted by a newspaper article that
Mardusha submitted that stated that her uncle had been killed in his front yard. Id. The BIA also
highlighted the fact that Mardusha’s application for asylum had not stated that her stalker was
present at her kidnapping or that he had raped her. J.A. at 4 (BIA Order at 3). The BIA concluded
that there was no reason “to disturb the [IJ’s] denial of [Mardusha’s] application” for withholding
of removal under the INA3 and dismissed Mardusha’s appeal. Id.
Mardusha now petitions us for review under 8 U.S.C. § 1252. First, Mardusha asserts that
the IJ’s decision to dismiss Mardusha’s application for asylum as untimely deprived Mardusha of
her right to due process. Mardusha Br. at 5, 7-8. Mardusha suggests that the IJ acted with “extreme
prejudice” throughout the hearing and that the IJ’s conclusions are not, therefore, due our deference.
Id. at 9-12. Mardusha further argues that she has shown past persecution and that the IJ and the BIA
3
The BIA did not discuss withholding of removal under the CAT because it found that
Mardusha did “not articulate any arguments disputing” the IJ’s denial of her application for CAT
protection. J.A. at 2 (BIA Order at 1 n.1).
6
abused their discretion when they denied Mardusha’s petitions for asylum and withholding of
removal. Id. at 12-16.
II. ANALYSIS
A. Standard of Review
“When the BIA does ‘not summarily affirm or adopt the IJ’s reasoning and provide[s] an
explanation for its decision, we review the BIA’s decision as the final agency determination.’” Fang
Huang v. Mukasey, 523 F.3d 640, 651 (6th Cir. 2008) (quoting Ilic-Lee v. Mukasey, 507 F.3d 1044,
1047 (6th Cir. 2007). “We review factual findings under the substantial evidence standard.”
Ndrecaj v. Mukasey, 522 F.3d 667, 672 (6th Cir. 2008) (internal quotation marks omitted). This
standard of review requires us to take findings of fact as conclusive “unless any reasonable
adjudicator would be compelled to conclude to the contrary.” Id. at 672-73 (internal quotation marks
omitted).
B. Timeliness of Asylum Claim
The legal standards governing applications for asylum are laid out in 8 U.S.C. § 1158. An
alien cannot apply for asylum under this section “unless the alien demonstrates by clear and
convincing evidence that the application has been filed within 1 year after the date of the alien’s
arrival in the United States.”4 § 1158(a)(2)(B). This statute states that “[n]o court shall have
jurisdiction to review any determination of the Attorney General” that a given individual’s
application for asylum is untimely. § 1158(a)(3). After the passage of the REAL ID Act in 2005,
4
Section 1158(a)(2)(D) provides that an individual can apply for asylum after this one-year
period if the individual can show changed or extraordinary circumstances. Mardusha contends that
she sufficiently proved that her date of entry was less than a year before she filed for asylum, and she
does not argue that either of the exceptions in § 1158(a)(2)(D) apply to her case.
7
we concluded that § 1158(a)(3) “bar[s] our review of asylum applications denied for untimeliness
only when the appeal seeks review of the discretionary or factual questions, but not when the appeal
seeks review of constitutional claims or matters of statutory interpretation.” Almuhtaseb v.
Gonzales, 453 F.3d 743, 748 (6th Cir. 2006); see also 8 U.S.C. § 1252(a)(2)(D).
Mardusha’s brief seems to argue that the IJ’s timeliness determination violated Mardusha’s
due-process rights because the IJ was prejudiced. Mardusha Br. at 2, 7-9. However, Mardusha
failed to raise before the BIA the argument that the IJ was prejudiced. J.A. at 11-12 (Mardusha BIA
Br. at 4-5). Therefore, any constitutional arguments that Mardusha makes are unexhausted, and we
cannot consider them. Ramani v. Ashcroft, 378 F.3d 554, 560 (6th Cir. 2004) (“[W]e hold that only
claims properly presented to the BIA and considered on their merits can be reviewed by this court
in an immigration appeal.”). Additionally, Mardusha’s brief contains only limited argument on this
point and does not present any evidence of the alleged prejudice. To the extent that this argument
seeks review of factual questions, we lack jurisdiction to consider it. Because Mardusha has waived
and failed to support any constitutional claim, we do not have jurisdiction to consider the IJ’s and
the BIA’s factual determination that Mardusha’s petition for asylum was untimely.
C. Asylum Claim
Even if Mardusha’s claim that the IJ’s finding that Mardusha had not met her burden of
proving that her application was timely were successful, Mardusha cannot prevail on her claim that
she should be granted asylum. An applicant for asylum must prove that he or she cannot return to
his or her 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); see Ndrecaj, 522 F.3d at 674. After an applicant makes this showing, the IJ has
8
the discretion to grant or deny asylum. Mapouya v. Gonzales, 487 F.3d 396, 406 (6th Cir. 2007).
If the IJ or BIA finds an applicant’s testimony credible, an applicant can rely solely on his or her own
testimony to establish past persecution or a well-founded fear of persecution. Ndrecaj, 522 F.3d at
674; 8 U.S.C. § 1158(b)(1)(B)(ii). The IJ must support an adverse credibility finding with specific
reasons “based on issues that go to the heart of the applicant’s claim.” Sylla v. INS, 388 F.3d 924,
925-26 (6th Cir. 2004). We review credibility determinations under the deferential substantial-
evidence standard. Id. As the IJ’s credibility determination is a finding of fact, we cannot overturn
it unless “any reasonable adjudicator would be compelled to conclude to the contrary.” Ndrecaj, 522
F.3d at 672-73 (internal quotation marks omitted).
In Mardusha’s case, we cannot say that we are compelled to conclude that the IJ and the BIA
erred in their determinations that Mardusha was not credible. Both the IJ and the BIA made specific
findings of the inconsistencies that led them to conclude that Mardusha was not credible. The two
inconsistencies that the BIA noted are related to the two major incidents that Mardusha described:
her uncle’s death and her own kidnapping. Because the IJ and BIA identified some discrepancies
that go to the heart of Mardusha’s application for asylum, we hold that there is “not sufficient
evidence to compel a finding of credibility, which is the standard for reversal by this Court.” Sall
v. Gonzales, 251 F. App’x 337, 341 (6th Cir. 2007).
D. Withholding of Removal Claim
Mardusha also apparently seeks review of the IJ’s and BIA’s decision to deny her
withholding of removal under the INA.5 In order to qualify for withholding of removal under the
5
We do not consider the availability of withholding of removal under the CAT because the
BIA found that Mardusha did “not articulate any arguments disputing” the IJ’s denial of CAT
protection. J.A. at 2 (BIA Order at 1 n.1). Mardusha’s claims under CAT are, therefore,
9
INA, “an alien must show that there is a clear probability, that is, that it is more likely than not, that
she would be subject to persecution on the basis of [race, religion, nationality, membership in a
particular social group, or political opinion] were she removed from the country.” Almuhtaseb, 453
F.3d at 749 (internal quotation marks omitted). This substantive qualification standard for
withholding of removal under the INA is more stringent than the one applied to claims for asylum.
Therefore, because Mardusha is not eligible for asylum, it necessarily follows that she is not eligible
for withholding of removal under the INA. Ndrecaj, 522 F.3d at 677.
We must “uphold the BIA’s determination against withholding the removal of an alien,
unless it is manifestly contrary to the law. Furthermore, any administrative findings of fact are
conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.”
Ndrecaj, 522 F.3d at 677 (internal quotation marks omitted). As discussed above, because the IJ
described inconsistencies that go to the heart of Mardusha’s claims, we cannot say that denial of
withholding of removal under the INA is manifestly contrary to law. Given this deferential standard
of review, we must deny Mardusha’s petition for review of the BIA’s decision to deny withholding
of removal.
III. CONCLUSION
For the foregoing reasons, we DENY Mardusha’s petition seeking review of the BIA’s denial
of her application for asylum and withholding of removal under the INA.
unexhausted, and we cannot consider them. Ramani, 378 F.3d at 560.
10