Selimi v. Gonzales , 222 F. App'x 511 ( 2007 )


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  •                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
    File Name: 07a0389n.06
    Filed: June 12, 2007
    No. 06-3646
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    Arsen Selimi,                                             )
    )
    Petitioner,                                        )
    )        ON PETITION FOR REVIEW
    v.                                                        )        OF DECISION OF BOARD OF
    )        IMMIGRATION APPEALS
    Alberto Gonzales, Attorney General,                       )
    )
    Respondent.                                        )
    BEFORE:         GIBBONS and McKEAGUE, Circuit Judges; and BERTELSMAN, District
    Judge.*
    McKeague, Circuit Judge. Petitioner Arsen Selimi seeks review of a decision of the Board
    of Immigration Appeals (“BIA”) affirming an immigration judge’s denial of Petitioner’s asylum
    claim and other relief from removal. On appeal, Petitioner claims that the Immigration Judge (“IJ”)
    erred in concluding (1) that Petitioner was not credible and that his application was not sufficiently
    corroborated and (2) that Petitioner did not meet his burden of demonstrating that he had suffered
    past persecution and that he has a well-founded fear of future persecution. For the reasons stated
    below, we AFFIRM the order of the BIA.
    I. BACKGROUND
    *
    The Honorable William O. Bertelsman, Senior Judge, United States District Court for the
    Eastern District of Kentucky, sitting by designation.
    No. 06-3646
    Selimi v. Gonzales
    Petitioner was born in 1963, and he is a native and citizen of Albania. He first entered the
    United States as an immigrant in December 1997. He has apparently traveled between Albania
    and the United States several times since his initial entry, as he reports having returned to
    Albania six times between 1997 and 2004. In February 2001, he was convicted in Michigan state
    court of domestic violence and stalking. He committed these crimes against his wife. On
    September 22, 2002, the former Immigration and Naturalization Service began removal
    proceedings against him, issuing a Notice to Appear (“Notice”) in which he was charged with
    being removable pursuant to 8 U.S.C. § 1227(a)(2)(E)(i), which renders aliens deportable if they
    are convicted of a crime of domestic violence, stalking, child abuse, child neglect, or child
    abandonment. He was served with the Notice on October 16, 2002. On January 31, 2004, he
    filed an application for asylum, withholding of removal, and protection under the Convention
    Against Torture.
    On January 14, 2005, a merits hearing was held in Petitioner’s removal proceedings. At
    the hearing, Petitioner testified as his only witness. He conceded removability, and the IJ found
    him removable. He testified that he had been a member of the Democratic Party since 1991, in
    which he “had duties like secretary” and that he had suffered various instances of ill treatment
    due to this membership. J.A. at 99. He claimed that in March 1997, approximately 200 people
    attacked him in a produce warehouse where he worked, taking fruits and vegetables. He also
    testified that in August 1997, he was awakened by the firing of a machine gun, and he and his
    brother later found that shots had been fired at his car and house. He testified that he was
    celebrating inside his house in January 2004 when he again heard bullets being fired, and he later
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    found “that there were actually signs of bullets in the walls.” J.A. at 109-10. A few days prior to
    that incident, he received a letter “stat[ing] that you have to leave Albania at once or otherwise
    we’re going to kidnap you and we’re going to kill him.” J.A. at 110-13. Finally, he testified on
    cross-examination that he was twice detained in jail and beaten.
    Petitioner’s requests for relief were denied. First, the IJ held that Petitioner’s asylum
    application must be denied because he did not demonstrate by clear and convincing evidence that
    his application was filed within one year of his last arrival in the United States. Even if it had
    been filed on time, the IJ concluded that he would have denied the application on the merits. The
    IJ stated that “in the Court’s view, [Petitioner] made up this complete story and nothing of it is
    true,” J.A. at 158, and that Petitioner “has corroborated nothing,” J.A. at 163. In so concluding,
    the IJ noted that (1) Petitioner used different names despite stating in his application that he
    never did so; (2) although Petitioner testified that he recounted “all the bad things” that happened
    to him in Albania during the hearing, other incidents were listed in his application; (3) Petitioner
    did not “keep his story straight” about his military involvement; and (4) Petitioner failed to
    provide any reasonable explanation for the lack of corroborating evidence. J.A. at 162-76.
    Finally, the IJ noted that Petitioner’s testimony was unsupported by State Department reports on
    Albania.
    Petitioner appealed to the BIA on February 3, 2005. The BIA affirmed in a per curiam
    decision dated April 20, 2006. The BIA first stated that it agreed that Petitioner failed to
    establish by clear and convincing evidence that his asylum application was timely filed. The BIA
    then noted that even if Petitioner had met his burden regarding timeliness, the application still
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    would have been denied because he “should have provided reasonably available corroborative
    evidence in light of the discrepancies in his claim.” J.A. at 207. Yet even if he had produced
    such evidence, the BIA stated that “the events described by [Petitioner] do not establish an
    objectively reasonable fear of future persecution.” J.A. at 207. Accordingly, his withholding of
    removal claim, which requires a higher burden of proof, also failed; furthermore, Petitioner failed
    to demonstrate a clear probability of torture upon removal to Albania.
    On May 12, 2006, Petitioner filed a timely petition for review with this Court. On appeal,
    Petitioner only assigns error with respect to the asylum and withholding of removal claims.
    II. ANALYSIS
    A. Standard of Review
    “When the Board summarily affirms a portion of the decision of an immigration judge
    without discussing the relevant issues in-depth, we review the immigration judge’s decision as
    the final agency decision.” Sarr v. Gonzales, ___ F.3d ___, 
    2007 WL 1146465
    , at *3 (6th Cir.
    2007). The findings of fact, including credibility determinations, of an IJ only need be supported
    by substantial evidence. Hassan v. Gonzales, 
    403 F.3d 429
    , 434 (6th Cir. 2005). The substantial
    evidence standard requires this Court to uphold the IJ’s decision so long as it is “supported by
    reasonable, substantial, and probative evidence on the record considered as a whole,” and to
    reverse only if it determines that the evidence compels a different result. Ramaj v. Gonzales, 
    466 F.3d 520
    , 527 (6th Cir. 2006) (quoting INS v. Elias-Zacarias, 
    502 U.S. 478
    , 481 (1992)). The
    substantial evidence standards is a deferential one. Dashi v. Gonzales, No. 06-3006, 2007 WL
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    177915, at *2 (6th Cir. Jan. 24, 2007) (citing Mikhailevitch v. INS, 
    146 F.3d 384
    , 388 (6th Cir.
    1998)).
    B. Asylum
    This Court has held that it is barred from reviewing asylum applications denied for
    untimeliness when the appeal seeks review of discretionary or factual questions, yet it will
    review constitutional claims or matters of statutory interpretation. Almuhtaseb v. Gonzales, 
    453 F.3d 743
    , 748 (6th Cir. 2006). This case falls into the former category. Indeed, Petitioner
    devotes his entire brief on appeal to contending that the IJ and BIA erred in their credibility
    determinations and that he has demonstrated both past persecution and a well-founded fear of
    persecution. Accordingly, he does not even bother to mention the finding of lack of timeliness,
    and he certainly does not raise a constitutional or statutory interpretation claim with respect to
    timeliness. Thus, we are barred from reviewing the denial of Petitioner’s asylum application.
    C. Withholding of Removal
    An applicant will be granted withholding of removal if he demonstrates a “clear
    probability that his [] life would be threatened on account of race, religion, nationality,
    membership in a particular social group, or political opinion” should he return to his native
    country. Ben Hamida v. Gonzales, 
    478 F.3d 734
    , 741 (6th Cir. 2007).
    On appeal, Petitioner claims that his asylum application and trial testimony were credible
    and sufficiently corroborated. He asserts that he “submitted all of the exhibits and documents
    that he could under the circumstances” and that the IJ and BIA “based their decisions largely
    upon irrelevant and immaterial inconsistencies.” Petitioner’s Br. 18. He also claims that he has
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    demonstrated past persecution and a well-founded fear of future persecution should he be forced
    to return to Albania, relying on his Democratic Party membership and various instances of
    alleged persecution, including the 1991 beatings and jail confinements, the 1997 attack on his
    place of employment, the 1997 and 2004 attacks on his house and car, and the 2004 threatening
    letter that he received. Although Petitioner only contends that these incidents establish past
    persecution and a well-founded fear of future persecution, he apparently also believes that they
    constitute the proof necessary to establish his withholding of removal claim.
    Substantial evidence supports the IJ’s finding that Petitioner was not credible. First,
    Petitioner claimed during cross-examination that he had testified as to “all the problems that [he]
    had in Albania.” J.A. at 115-16. Yet during his direct testimony, he never testified regarding the
    two overnight jail detentions and beatings that he reported in his asylum application.
    Additionally, he omitted from his asylum application that he served in the Communist-controlled
    military, something he only admitted during cross-examination, notwithstanding the fact that he
    earlier testified that (1) he knew everything that was in his asylum application and (2) there was
    nothing in the application that needed to be corrected, as all of its contents were true.
    Furthermore, he stated in his asylum application that he never used any other names, a contention
    that he reiterated while under oath at the merits hearing. Yet after an extended exchange on
    cross-examination that included the production of records showing that he changed his last name,
    he finally admitted that he used the name Arsen Mydini from 1992 to 1996.
    These examples, which, respectively, (1) undermine Petitioner’s claims that mistreatment
    ever occurred, (2) create a question as to whether he was actually a political target, due to his
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    prior military service, and (3) demonstrate a willingness to lie under oath, are certainly not
    merely “irrelevant and immaterial inconsistencies”; rather, they are central to Petitioner’s claims
    for relief. Furthermore, the adverse credibility determination is supported by the fact that he, as
    discussed below, did not provide reasonably available corroborating evidence. See Pilica v.
    Ashcroft, 
    388 F.3d 941
    , 954 (6th Cir. 2004). Accordingly, it cannot be said that the evidence
    regarding credibility compels a different result. 
    Ramaj, 466 F.3d at 527
    .
    This Court has held that although corroboration is not required for a credible asylum
    applicant, the absence of reasonably available corroborating evidence can lead to the finding that
    the petitioner has failed to meet his burden of proof, even if the petitioner is credible. Liti v.
    Gonzales, 
    411 F.3d 631
    , 640 (6th Cir. 2005). “The alien’s own testimony can be sufficient to
    support an application for asylum where the testimony is believable, consistent, and sufficiently
    detailed to provide a plausible and coherent account on the basis for his fear.” 
    Pilica, 388 F.3d at 954
    (emphasis added). Furthermore, this Court has emphasized that where it is reasonable to
    expect corroborating evidence, such evidence should be provided, and the absence of it can lead
    to a finding that an applicant has failed to meet his burden of proof. Dorosh v. Ashcroft, 
    398 F.3d 379
    , 382 (6th Cir. 2004).
    The above authority compels the result that the IJ did not err in concluding that Petitioner
    should have provided reasonably available corroborative evidence and that he failed to meet his
    burden in the absence of that evidence. Indeed, corroborating evidence was necessary in the
    instant case because he was not a credible asylum applicant and because, as noted by the IJ, his
    testimony was inconsistent with the State Department reports on Albania. Petitioner complained
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    that corroborating evidence was not reasonably available because although he admitted that he
    had family in Albania, “it’s really hard [for them] to bring me these documents,” and that “[i]f
    [my brother] mails these documents he’s still scared because the police might obtain these
    documents.” J.A. at 102. Petitioner also testified that in Albania only the government has access
    to fax machines.
    The IJ properly rejected these explanations and concluded that corroborating evidence
    was reasonably available. Indeed, Petitioner admitted that both a “little blue membership book”
    proving his Democratic Party affiliation and the threatening letter he claims to have received in
    2004 are currently located in Albania. J.A. at 102. Also, Petitioner offered nothing but his bare
    assertions with respect to the police controlling the mails, the government having exclusive
    access to fax machines in Albania, and the difficulty of his family bringing the documents to the
    United States. Moreover, when asked on cross-examination why he did not ask his family living
    in Albania to mail the documents or otherwise send them to him, he admitted that “[t]o say the
    truth I never thought of it.” J.A. at 138. Additionally, he admitted that the testimony of his
    family could have been taken from the embassy or that sensitive documents could have been
    included in a diplomatic pouch and sent to the United States to be given to the Immigration
    Court. Accordingly, it is reasonable to expect corroborating evidence, and the absence of it in
    this case compels the conclusion that the court did not err in concluding that Petitioner failed to
    meet his burden of proof. 
    Dorosh, 398 F.3d at 382
    .1
    1
    Although Petitioner relies heavily on In re Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987),
    that case is unhelpful to his appeal. Indeed, he cites that case for the proposition that “[t]he alien’s
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    III. CONCLUSION
    For the foregoing reasons, we AFFIRM the order of the BIA.
    own testimony may in some cases be the only evidence available, and it can suffice where the
    testimony is believable, consistent and sufficiently detailed to provide a plausible and coherent
    account of the basis of his fear.” 
    Id. at 445.
    In light of the foregoing discussion, Mogharrabi is
    inapplicable to the instant case. Indeed, not only has Petitioner admitted that corroborating evidence
    was available, but his testimony is neither believable nor consistent.
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