Pjetri, Ferdinand v. Gonzales, Albert R. ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3871
FERDINAND PJETRI,
Petitioner,
v.
ALBERTO R. GONZALES,
Respondent.
____________
On Petition to Review an Order of the
Board of Immigration Appeals.
No. A 75-315-025
____________
ARGUED MAY 12, 2006—DECIDED NOVEMBER 13, 2006
____________
Before MANION, KANNE, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Petitioner Ferdinand Pjetri is
a citizen and national of Albania, who filed for asylum
in the United States in 1998. That request was denied, but
he was granted voluntary departure by the Immigration
Judge (IJ), and he departed the United States in 1998. In
December 1999, he re-entered the United States, and was
apprehended near the Mexican border by U.S. immigration
officials. He again sought asylum and withholding of
removal, and in addition requested protection under the
United Nations Convention Against Torture (CAT). The
IJ denied his claims for relief, and that decision was
affirmed without opinion by the Board of Immigration
Appeals (BIA). He now appeals that denial to this court.
2 No. 05-3871
Because this was his second asylum application, the issue
before the IJ was whether he had evidenced changed
circumstances which materially affect his eligibility for
asylum. 8 U.S.C. § 1158(a)(2)(C) & (D). For that claim, the
IJ therefore focused Pjetri’s testimony on events occurring
after the initial asylum determination. Because the CAT
claim was unavailable at the time of the initial hearing,
however, this was the first opportunity for Pjetri to present
it to an IJ. Accordingly, the issue for the CAT claim was
whether Pjetri had demonstrated by a clear probability that
he would face persecution if removed to Albania. Lhanzom
v. Gonzales, 430 F.3d 833, 842 (7th Cir. 2005). At the
hearing on the two claims, the IJ declared that she had
familiarized herself with the testimony at the initial asylum
hearing. Because the IJ in that initial hearing had made no
finding that Pjetri was incredible, the IJ in this hearing
assumed the validity of that prior testimony for purposes of
this hearing as well. The IJ focused testimony on events
subsequent to the initial asylum determination, but allowed
testimony regarding those past events as well where
necessary.
Before the IJ, Pjetri alleged that he faced persecution as a
member of the Association of Politically Persecuted Persons.
That group was formed on behalf of victims of political
repression under the communist rule between 1945 and
1990. The Albanian government had promised compensa-
tion to those individuals, but those promises remained
unrealized. As a result, the APPP held meetings and
sponsored demonstrations to pressure the government to
fulfill that commitment. Pjetri argues that his participation
in such APPP actions caused the government to take
adverse actions against him and his family. He pointed to
actions taken against him and his family prior to 1998—the
date of the initial adverse asylum determination—and to
actions taken against his family in Albania subsequent to
1998 (because he claims to have never returned to Albania,
No. 05-3871 3
that testimony did not include any actions against him
personally). The actions against his family included an
incident in which his son was accosted by classmates who
were children of former communists, at which time his
name was mentioned. He testified that he learned of the
attack by a letter sent to him. Although Pjetri testified that
his son was stabbed during that incident, the letter pro-
vided by Pjetri describing the incident contained no refer-
ence to a knife or any stab wounds. Pjetiri also testified as
to threats made to his wife and children, including threats
of physical harm and a threat to burn down their home.
Pjetri’s wife had subsequently fled to the United States, and
was herself seeking asylum for persecution based on her
membership and position of authority in the Democratic
Party in Albania. Pjetri, however, based his asylum claim
on his membership in the APPP, and claimed that he was
fearful of both the democrats and socialists in Albania.
Pjetri did not present his wife or daughter as witnesses, and
did not provide affidavits from them in support of his claim.
He bolstered his claim with documents including country
reports, although the IJ relied on those reports in part to
reject his claim.
Pjetri raises a number of challenges that he labels as “due
process” violations as well as procedural violations. First, he
argues that the IJ erred in failing to inform him of his
rights to counsel, to free legal services, to present evidence,
to cross-examine witnesses, and to appeal, as is required by
8 C.F.R. § 1240.10(a)(1). He asserts that the language of
that regulation is mandatory, declaring that “the immigra-
tion judge shall” provide such notification, and that the
failure to fulfill that requirement is a due process violation.
We note that Pjetri in fact was represented by counsel,
presented evidence, and appealed the decision (the right to
cross-examine did not come into play as Pjetri was the sole
witness), but Pjetri nonetheless argues that the failure to
inform him of those rights requires a new hearing.
4 No. 05-3871
Along the same lines, he argues that the IJ erred in
failing to inform him of his right to request voluntary
departure. That is a curious argument, in light of Pjetri’s
argument to the BIA that the IJ erred in denying voluntary
departure, thus indicating that Pjetri in fact sought that
relief before the IJ (and presumably establishing a lack of
prejudice, see Feto v. Gonzales, 433 F.3d 907, 912 (7th Cir.
2006)). As an added twist, the government argues that he
in fact was not eligible for voluntary departure, but that is
a claim that we ultimately need not decide.
Finally, Pjetri asserts that the IJ violated his right to due
process by failing to allow him an opportunity to present his
case for relief from removal. This due process claim stems
from the IJ’s alleged failure to allow him to present testi-
mony as to events that occurred prior to the initial asylum
determination. Pjetri argues that the IJ should have
considered the events in his life as a whole, determining
whether the cumulative effect demonstrated a CAT viola-
tion, particularly given that the CAT claim was unavailable
to him until this hearing. Pjetri also asserts that the IJ
should have had the benefit of the full panoply of events in
determining whether he was entitled to withholding of
removal.
We note initially that the record indicates that the IJ in
fact considered the full range of events in making those
determinations, declaring that she had familiarized her-
self with the testimony from the first hearing, and was
incorporating it into her decision. In imposing initial limits
on the testimony at the hearing, the IJ stated that she
would accept the facts as stated in the prior IJ’s decision,
and noted that the prior IJ did not find Pjetri to be in-
credible. Therefore, the IJ familiarized herself with Pjetri’s
past testimony and assumed the credibility of that testi-
mony. Moreover, despite her inclination to limit the testi-
mony to avoid repetition with the first hearing, the IJ in
fact allowed Pjetri to testify as to events that occurred prior
No. 05-3871 5
to that initial asylum determination during this second
asylum hearing. Therefore, the record does not support
Pjetri’s contentions.
That matters not, however, because none of these claim
of due process or evidentiary violations were presented
to the BIA. The failure to exhaust administrative remedies
precludes our review. See 8 U.S.C. § 1252(d)(1); Margos
v. Gonzales, 443 F.3d 593, 599 (7th Cir. 2006). Nor does it
help to characterize the alleged failures as “due process”
violations. As we noted in Feto v. Gonzales, 433 F.3d 907,
912 (7th Cir. 2006), the only exception to the requirement
that claims must be raised before the BIA is the situation in
which the BIA itself would be powerless to address the
problem, as might occur regarding some fundamental
constitutional violations. Id. Where, however, a due process
argument is based on procedural failings that the BIA is
capable of addressing, the petitioner must exhaust his or
her remedies at the BIA before bringing the claim in this
court. Id. Where a petitioner fails to exhaust administrative
remedies available to him or her, this court lacks jurisdic-
tion to consider the argument. Margos, 443 F.3d at 599; see
also Feto, 433 F.3d at 912 (discussing impact of REAL ID
Act on jurisdiction, and recognizing that an alien is re-
quired to raise most issues before the BIA before we can
reach them); Boakai v. Gonzales, 447 F.3d 1, 4 (1st Cir.
2006) (“Both before and after the REAL ID Act, this court
lacks jurisdiction over a claim if the alien has not exhausted
all administrative remedies as to that claim.”)
That is the case regarding the alleged due process
violations identified by Pjetri. Pjetri did not assert any of
those claims before the BIA. He acknowledges as much
regarding the alleged failure to notify him of his rights to
counsel, to free legal services, to present evidence, to cross-
examine witnesses, to appeal, and to request voluntary
departure. It is true as well regarding the IJ’s allegedly
improper limitation of testimony. In appealing the IJ’s
6 No. 05-3871
adverse determination of his CAT claim to the BIA, Pjetri
presented only a cursory argument that the evidence he
presented established a clear probability that he would
be tortured or killed at the instigation of public officials
should he return to Albania. He never asserted that the
IJ improperly restricted the testimony relevant to the
CAT claim, and he never argued that he was denied the
opportunity to fully present his CAT claim. Similarly, Pjetri
raised no argument before the BIA alleging that the IJ
failed to consider the full range of events in reaching her
conclusion. Accordingly, Pjetri has failed to exhaust his
administrative remedies concerning the claims he presents
to this court, and we lack jurisdiction to consider those
claims. The appeal is dismissed for lack of jurisdiction.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-13-06