Nikis v. Gonzales , 126 F. App'x 731 ( 2005 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 05a0243n.06
Filed: April 1, 2005
NO. 03-4642
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MIRALA NIKIS, )
Petitioner-Appellant, )
) ON APPEAL from the Board
v. ) of Immigration
) Appeals
JOHN ASHCROFT, )
Attorney General of the United States, )
Respondent-Appellee, )
Before: MERRITT and ROGERS, Circuit Judges; HOOD, District Judge.*
HOOD, District Judge. This is an appeal from a decision of the Board of Immigration
Appeals (“BIA”) affirming the immigration judge’s decision to deny asylum, relief under the
Convention Against Torture, and withholding of removal. As the petitioner only appealed the issue
of denial of asylum, we only review that aspect of the decision. The BIA held that the immigration
judge was correct in denying asylum because the petitioner’s testimony was not credible and
because the petitioner failed to connect alleged past persecution to an enumerated ground for
asylum. Because we find that the BIA’s decision was supported by substantial evidence, we
AFFIRM.
I. BACKGROUND
*
The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
On March 10, 2001, the petitioner/appellant, Mirala Nikis, a native of Albania, was stopped
at the San Francisco airport because she sought admittance into the United States with the use of a
fraudulent passport. The petitioner was fourteen at the time. Agents of the former Immigration and
Naturalization Service (“INS”)1 interviewed the petitioner at the airport and consequently issued a
Notice to Appear for two Immigration and Naturalization Act (“INA”) violations.2
During the airport interview, the petitioner stated that she was sixteen, when in actuality her
birth certificate said that she was fourteen. When asked why she sought admittance into the United
States, the petitioner said, “I want to see and meet my family.” (J.A. at 174.) The agents asked the
petitioner if she had any fear of returning to Albania, to which the petitioner stated that she did not.
(Id. at 175.) The petitioner admitted she used a fraudulent passport to enter the United States. (Id.
at 174.)
On February 26, 2002, the petitioner filed an application for asylum. In the application, the
petitioner alleged that she had suffered political persecution in the past because of her family’s
participation in democratic movements in Albania. She stated that it was clear that she was targeted
to be kidnapped and forced into prostitution by the secret police, their “gangsters,” and officials of
the Socialist part, as punishment for her family’s political activities. (Id. at 177-91.)
On July 22, 2002, the petitioner appeared with counsel in front of Immigration Judge Teofilo
Chapa (“IJ”). At the hearing, the petitioner testified that she was born in 1987, even though in the
1
The Homeland Security Act of 2002 abolished the INS and transferred its functions to the
Department of Homeland Security. Pub. L. No. 107-296, 116 Stat. 2135 (2002).
2
The Notice to Appear included violations for seeking admission into the United States
through fraud and for being an alien likely to become a public charge. (J.A. at 193-94.) These
violations are not at issue in the appeal because the petitioner stipulated that she was removable.
(Id. at 174 & 46.)
2
airport interview she testified she was born in 1985. (Id. at 81 & 173.) The petitioner testified that
she sought admittance into the United States because unidentified “gangsters” twice attempted to
kidnap her. She stated that the first attempted kidnapping occurred in January 2001 as she walked
home from school. The petitioner recalled that three men wearing masks called her to “come over”
and that the kidnappers wanted to send her to Italy. She testified that when she yelled, a family
nearby took her into their house and the men left. (Id. at 93.) The petitioner stated she thought the
kidnappers wanted to force her into prostitution because she had known many girls who had been
kidnapped and sent to Italy. (Id. at 113.)
The second incident occurred on February 10, 2001. The petitioner testified that she was
walking home from school and noticed three masked men in a black Jeep fifty yards away. She
stated she was frightened and “went away.” (Id. at 101.) When the respondent asked the petitioner
why she was targeted by the gangsters, she answered, “Not only me, they have done it to all the
Albanian girls.” (Id. at 123.) She stated her father wanted her to come to the United States because
the elders of the city would not provide any assistance.
The petitioner furthertestified that after her father obtained the fraudulent passport, he made
arrangements for her to take a bus to Tirane, Albania. Her father told her that once in Tirane, two
strangers would take her to the airport. The strangers took her to the airport where she first flew to
Italy, staying for one night. The petitioner did not seek asylum in Italy.
The petitioner’s father then testified. The father stated that many girls in Tirane were
kidnapped and forced into prostitution in Italy. Specifically, he said, “[t]hey wanted to kidnap my
daughter to send her as a prostitute in Italy so that they could obtain money.” (Id. at 143.) The
father stated that after the two incidents, he went to Tirane and met a group of people who were
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selling passports. He purchased the passport for $5,000. He then placed the petitioner on a public
bus to Tirane and told her to meet two unknown people who would take her to the airport.
The father mentioned his political ties to the democratic party and that it was possible his
entire family could die if they stayed in Albania. He said, “I’ve been persecuted for years and years,
well, what to say about it, it’s a long story, and it’s really that girls get kidnapped there.” When
asked if the picture on the passport was his daughter’s, he said that he was not sure and that he did
not know from where the photograph came. (Id. at 161.)
The IJ held that the petitioner and her father’s testimony was incredible and that the evidence
did not connect any of the alleged past persecutions to the enumerated ground of relief alleged,
persecution on account of political opinion. The judge specifically noted the inconsistencies in the
airport interview and the petitioner’s testimony at the hearing. The judge also commented on the
vague testimony concerning the travel plans for her departure from Albania. The judge found it
incredible that a father would place his daughter on a public bus to meet two strangers in a large city,
especially when the father was aware of two alleged attempted kidnappings.3 (Id. at 50-60.)
The petitioner appealed to the BIA, which affirmed the IJ’s decision denying the application
for asylum. After the BIA’s adverse ruling, the petitioner timely appealed to this Court, arguing
only that the BIA was in error in denying her application for asylum.
II. STANDARD OF REVIEW
The petitioner argues that the BIA’s decision to deny eligibility for asylum was in error. This
Court has jurisdiction to review the final decision of the BIA “affirming the IJ’s denial of asylum.”
3
The judge also held that the petitioner failed to show a right to withholding of removal or
relief pursuant to the Convention Against Torture. (Id. at 60.) The BIA affirmed, but the petitioner
did not appeal these decisions.
4
Singh v. Ashcroft, 398 F.3d 396, 400 (6th Cir. 2005); 8 U.S.C. § 1252 (1999).
The INA provides that “administrative findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). This
statute replaced former § 1105a (a)(4) that provided that the agency’s determinations must be upheld
if “supported by reasonable, substantial, and probative evidence on the record considered as a
whole.” Prior to the enactment of § 1252, the Supreme Court stated the standard of review pursuant
to § 1105a was “substantial evidence.” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). The Court
went on to state that the BIA’s determination can only be reversed “if the evidence presented ... [is]
such that a reasonable factfinder would have to conclude that the requisite fear of persecution
existed.” Id. Further, the Court stated that in order to reverse, the court “must find that the evidence
not only supports that conclusion, but compels it.” Id. at n.1.
Even though § 1105a has been repealed, this Circuit held that § 1252(b)(4)(B) merely
codifies the substantial evidence standard of review announced in Elias-Zacarias.4 Yu v. Ashcroft,
364 F.3d 700, 702 (6th Cir. 2004) (stating that “our jurisprudence, except for reiteration of the
repealed ‘supported by reasonable, substantial, and probative evidence’ language, remains good
law”). Credibility determinations, likewise, are reviewed under the substantial evidence standard.
Id.
4
A panel of the Sixth Circuit held that the substantial evidence standard no longer applies.
Pilica v. Ashcroft, 388 F.3d 941, 951 n.9 (6th Cir. 2004) (stating that “cases such as Elias-Zacarias
are not valid precedent regarding the standard of review to be applied here” but still holding that the
court may not reverse unless the evidence compels a different conclusion).
Pilica was decided seven months after Yu, but six months before Singh. Singh, the most
recent asylum case that mentions the standard of review, follows Yu and applies the substantial
evidence test announced in Elias-Zacarias and followed by Yu. Singh, 398 F.3d at 400-01.
5
Thus, “[w]e review administrative findings of fact, such as whether an alien qualifies as a
refugee, under the substantial evidence standard, keeping in mind that such findings are ‘conclusive
unless any reasonable adjudicator would be compelled to conclude to the contrary.’” Singh, 398
F.3d at 400 (quoting Yu, 364 F.3d at 702); Klawitter v. INS, 970 F.2d 149, 152 (6th Cir. 1992)
(holding that “in order to reverse the BIA’s factual determinations, the reviewing court must find
that the evidence not only supports a contrary conclusion, but indeed compels it”). The appropriate
question, then, “is whether the evidence ‘was such that a reasonable factfinder would have to
conclude that the requisite fear of persecution existed.’” Koliada v. INS, 259 F.3d 482, 486 (6th Cir.
2001) (quoting Elias-Zacarias, 502 U.S. at 481).
III. DISCUSSION
A. Applicable Law on Asylum
The Attorney General has discretion to grant asylum upon determining “that such alien is
a refugee.” 8 U.S.C. § 1158(b)(1); Yu, 364 F.3d at 702; Klawitter, 970 F.2d at 151. A “refugee” is
defined as any person “who is unable or unwilling to return to” the person’s country of nationality
“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 two-part inquiry is utilized to determine whether to grant asylum. First, the petitioner has
the burden to show that she has a well-founded fear of future persecution. Next, the petitioner must
show that the situation “merits a favorable exercise of discretion” by the immigration judge. Yu,
364 F.3d at 702 (quoting Ouda v. INS, 324 F.3d 445, 451 (6th Cir. 2003)) (internal quotations
omitted); Klawitter, 970 F.2d at 151.
In order to establish the first part of the inquiry, a well-founded fear of future persecution,
6
the petitioner must show:
(1) that [she] has a fear of persecution in [her] home country on account of race,
religion, nationality, membership in a particular social group, or political opinion;
(2) that there is a reasonable possibility of suffering such persecution if [she] were
to return to that country; and (3) that [she] is unable or unwilling to return to that
country because of such fear.
Pilica, 388 F.3d at 950. Thus, a well-founded fear of future persecution has both an objective and
subjective component in that “an alien must actually fear that [she] will be persecuted upon return
to [her] country, and [she] must present evidence establishing an ‘objective situation’ under which
[her] fear can be deemed reasonable.” Id.
In lieu of the above, the petitioner may establish that she has suffered past persecution. If
the petitioner proves past persecution, then she is
presumed to have a well-founded fear of future persecution, but this presumption
may be rebutted by the government if it shows by a preponderance of the evidence
that conditions in the country have changed so fundamentally that the applicant no
longer has a well–founded fear of persecution.
Singh, 398 F.3d at 401.
The petitioner’s own testimony, “if credible, ‘may be sufficient to sustain the burden of proof
without corroboration.’” Koliada, 259 F.3d at 487 (quoting 8 C.F.R. § 208.13(a) (2001)); Perkovic
v. INS, 33 F.3d 615, 621 (6th Cir. 1994) (stating that the petitioner can sustain the burden of proof
by her testimony alone, if “the testimony is believable, consistent, and sufficiently detailed to
provide a plausible and coherent account of the basis for [her] fear”). Proving “persecution ...
requires more than a few isolated incidents of verbal harassment or intimidation, unaccompanied
by any physical punishment, infliction of harm, or significant deprivation of liberty.” Pilica, 388
F.3d at 950 (internal citations and quotations omitted).
If the petitioner proves either past persecution or a well-founded fear of future persecution,
7
then the petitioner must show that the situation warrants an exercise of judicial discretion to grant
asylum. Yu, 364 F.3d at 702.
B. The BIA Did Not Err in Denying Asylum
The BIA held that the petitioner failed to establish eligibility for asylum because of the
petitioner’s credibility issues and her lack of proof tying the alleged instances of persecution to her
political opinion. Because the BIA declared the petitioner ineligible for asylum, the Board did not
have to reach the second part of the inquiry.
The petitioner argues that the BIA erred in not granting asylum because she testified to
several instances of past persecution and was entitled to a presumption of well-founded fear of future
persecution.5 The respondent argues that the BIA’s decision should be affirmed because there is
substantial evidence to support the BIA’s adverse credibility determination. (Resp’t Br. at 17-19,
24.) The respondent also argues that the panel should affirm the BIA’s decision that the petitioner
failed to prove that the instances of alleged past persecution were “on account of” her political
opinion. (Id. at 25-28.)
1. Credibility Determination
It is permissible to deny an application for asylum based largely on credibility, as long as
specific reasons are included that explain why a credibility determination is made. Singh, 398 F.3d
at 402 ; Sylla v. INS, 388 F.3d 924, 926 (6th Cir. 2004). Further, an “adverse credibility finding
must be based on issues that go to the heart of the applicant’s claim. They ‘cannot be based on an
5
The petitioner also states that the IJ erred because the judge found the petitioner credible,
but still did not utilize the presumption for past persecution. (Pet’r Br. at 9.) This argument is
wholly without merit because the decision of the IJ was clearly based on an adverse credibility
determination. (J.A. at 54) (“This Court, though, does not find either [the petitioner] or her father
credible.”).
8
irrelevant inconsistency.’” Sylla, 388 F.3d at 926 (quoting Daneshvar v. Ashcroft, 355 F.3d 615,
619 n.2 (6th Cir. 2004)). In fact, the discrepancies must be viewed as “attempts by the applicant to
enhance [the] claims of persecution” or, otherwise, they have no relevancy. Id.
As the BIA did not summarily affirm or adopt the reasoning of the IJ, this Court reviews the
decision of the BIA. Compare Yu, 364 F.3d at 702. For the credibility determination, the BIA only
stated that “[t]he direct contradictions between her airport statements and her asylum claim raise
questions concerning the [petitioner’s] credibility.” (J.A. at 4.) The BIA mentioned that the
petitioner claimed she was targeted for her family’s participation in democratic activism, but at the
hearing testified that “all girls in Albania are at risk of abduction for prostitution” and further that
“the gangsters were interested in her because they believed that she might have money because she
has a sister in the United States.”6 (Id.) The IJ specifically noted many of the inconsistencies, and
therefore those inconsistencies will be discussed below.
For example, the IJ noted that in the airport interview, the petitioner stated she entered the
United States to see her family, but at the hearing, she testified she feared being kidnapped and
forced into prostitution. (Compare id. at 174 with 105.) In the airport interview, the petitioner
stated she was not afraid of returning to Albania and that she obtained the fraudulent passport from
a man her relatives knew. (Id. at 175.) At the hearing, the petitioner testified that her father just
happened to be in Tirane and purchased the fraudulent passport.
The inconsistencies specifically mentioned by the IJ go to the heart of the claim for asylum
6
This Circuit held that inconsistencies between an asylum application and an immigration
hearing impact credibility when the applicant fails to prove what she alleges in the application for
asylum because such failure it casts grave doubt upon the applicant’s testimony. Pilica, 388 F.3d
at 953 (holding that “even at its most favorable, [the applicant’s] live testimony did not measure up
to the claims made in [the] asylum requests”).
9
because the petitioner’s reasoning for entering the United States is central to whether the petitioner
has suffered past persecution or has a well-founded fear of future persecution.7
Other examples of credibility problems include the details the petitioner provided
surrounding the second kidnapping attempt. The IJ noted that it was hard to believe that the
petitioner saw a black Jeep, recognized the men were wearing masks, and that the license plate was
missing, from over fifty yards away.
The IJ also found incredible the father’s vague testimony about the events surrounding her
departure. As the IJ stated, it is unbelievable that a father, who fears his daughter will be
kidnapped, would send her on a public bus to meet two strangers in the middle of Tirane, without
telling his daughter what the men looked like or providing more information. Based on the
administrative record as a whole, a reasonable adjudicator would not be compelled to find the
petitioner or her father credible.
2. Persecution Not Connected to Enumerated Grounds
There is also substantial evidence supporting the BIA’s finding that the petitioner’s “sketchy
testimony failed to persuasively tie the purported kidnapping attempts to a protected ground for
purposes of a claim for asylum.” (Id.) In the application for asylum, the petitioner claimed she was
targeted for her family’s participation in democratic activism, but testified at the hearing that “all
girls in Albania are at risk of abduction for prostitution” and further that “the gangsters were
7
This Circuit noted in dicta that other circuits have held that airport interviews should not
be the sole impeachment source because the interviews are unreliable due to translation and other
problems. Yu, 364 F.3d at 703 n. 4 (avoiding the issue because the immigration judge did not make
the credibility determination solely on statements made at the airport interview). The case at hand
is similar to Yu because the airport interview was not the sole source of the IJ’s credibility
determination.
10
interested in her because they believed that she might have money because she has a sister in the
United States.” (Id.)
The father similarly testified about “gangsters” who tried to kidnap his daughter, but did not
state that the particular “gangsters” had political motivations. Thus, even if the testimony of the
petitioner and her father was credible, neither testified that the gangsters were motivated by an
enumerated ground for asylum. See Elias-Zacarias, 502 U.S. at 482 (holding that the statute
requires the alleged past persecution to be “on account of” one of the enumerated grounds).
IV. CONCLUSION
For the reasons stated above, we AFFIRM the decision of the BIA.
11
MERRITT, Circuit Judge, concurring. I would rest our judgment on the simple fact that
petitioner Nikis’s statements at the airport were directly contrary to her later claim for asylum. In
her airport interview, Nikis responded to the question, “Do you have any fear of returning to
Albania?” by answering, “No.” Furthermore, she described her reason for traveling to the U.S. as
“I want to see and meet my family.” Only in her written application for asylum, prepared later, did
Nikis attempt to present a connection between the attempted kidnappings and her political activities.
Considering these inconsistent accounts, the Immigration Judge was entitled to believe that her real
motivation for seeking entry to the United States did not involve “a well founded fear of
persecution,” but rather a desire to see her sister. The judge was entitled to take her at her word
when she said she did not have any fear of returning to Albania.
For these reasons I concur in the judgment affirming the decision of the Board of Immigration
Appeals.
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