[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
Nos. 09-15445 &10-12234 ELEVENTH CIRCUIT
Non-Argument Calendar FEBRUARY 2, 2011
________________________ JOHN LEY
CLERK
Agency Nos. A079-433-307,
A079-161-267
PAULIN GJERKAJ,
a.k.a. Manushan Alla,
MIMOZA GJERKAJ,
RENATA GJERKAJ,
lllllllllllllllllllll Petitioners,
versus
U.S. ATTORNEY GENERAL,
lllllllllllllllllllll Respondent.
________________________
Petitions for Review of a Decision of the
Board of Immigration Appeals
________________________
(February 2, 2011)
Before TJOFLAT, EDMONDSON and PRYOR, Circuit Judges.
PER CURIAM:
Petitioner Paulin Gjerkaj (“Gjerkaj”), his wife, Mimoza, and their daughter,
Renata, natives and citizens of Albania, petition this court to review two orders of
the Board of Immigration Appeals (“BIA”): (1) the BIA’s October 13, 2009 order
dismissing petitioners’ appeal of the decision of an Immigration Judge (“IJ”)
denying petitioners’ applications for asylum and withholding of removal under the
Immigration and Nationality Act (“INA”)1 and ordering petitioners’ removal, and
(2) the BIA’s May 10, 2010 order denying petitioners’ motion to reopen the
removal proceedings to allow the IJ to reconsider their applications for asylum.
Gjerkaj, as lead petitioner,2 presents three issues in briefing these
consolidated petitions for review: whether substantial evidence supports (1) the
IJ’s and the BIA’s adverse credibility findings regarding his testimony and (2) the
IJ’s and BIA’s alternative holding that petitioners failed to establish past
persecution or a well-founded fear of future persecution on account of political
1
Petitioners also seek review of the denial of their application for protection under the U.N.
Convention Against Torture (“CAT”). In their appeal of the IJ’s decision to the BIA, petitioners did
not challenge the IJ’s denial of CAT relief. Petitioners therefore failed to exhaust their
administrative remedies as to the IJ’s CAT ruling and precluded this court from considering the
ruling. Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1249-51 (11th Cir. 2006). We
accordingly dismiss the petition to the extent that it seeks review of the agency’s denial of CAT
relief.
2
The BIA treated Gjerkaj as lead petitioner; we do likewise.
2
opinion, and (3) whether the BIA abused its discretion in denying petitioners’
motion to reopen the removal proceedings.
I.
A.
The first two issues are presented in the petition to review the BIA’s
October 13, 2009 order dismissing petitioners’ appeal of the IJ’s removal order.
When the BIA issues a decision, we review only that decision, except to the extent
that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257 F.3d
1262, 1284 (11th Cir. 2001). Although the BIA in this case did not expressly
adopt the IJ’s decision, it did rely on the IJ’s finding that Paulin Gjerkaj’s
testimony was not credible in reaching its decision to dismiss petitioners’ appeal.
We accordingly review both the IJ’s and BIA’s decisions. Tang v. U.S. Att’y Gen.,
578 F.3d 1270, 1275 (11th Cir. 2009).
To the extent that these decisions were based on a legal determination, our
review is de novo. Mohammed v. Ashcroft, 261 F.3d 1244, 1247 (11th Cir. 2001).
The factual findings, including credibility and those underpinning asylum
eligibility, on which the agency’s legal determinations are based are reviewed
under the “substantial evidence test.” Kueviakoe v. U.S. Att’y Gen., 567 F.3d
1301, 1304 (11th Cir. 2009). We affirm the agency’s decisions if they are
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supported by reasonable, substantial, and probative evidence of record. Al Najjar,
257 F.3d at 1284. This standard is “highly deferential.” Thus, we reverse only “if
the evidence compels a reasonable fact finder to find otherwise.” Kueviakoe, 567
F.3d at 1304 (quotation omitted); Al Najjar, 257 F.3d at 1284. Under this test,
we “view the record evidence in the light most favorable to the agency’s decision
and draw all reasonable inferences in favor of that decision.” Adefemi v. Ashcroft,
386 F.3d 1022, 1027 (11th Cir. 2004) (en banc). The fact that evidence may
support a finding contrary to the agency’s finding is not enough to justify a
reversal. Id.
Adverse credibility determinations must be made explicitly. See Yang v.
U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir. 2005) (holding that the IJ must
make “clean determinations of credibility.”). “Once an adverse credibility finding
is made, the burden is on the applicant alien to show that the IJ’s credibility
decision was not supported by ‘specific, cogent reasons’ or was not based on
substantial evidence.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir.
2005) (citations omitted).
An alien’s testimony, if found to be credible, may be sufficient to establish
the alien’s eligibility to asylum. Kueviakoe, 567 F.3d at 1304. By the same token,
an alien’s testimony, if found to be not credible, may be sufficient to deny the
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alien’s eligibility to asylum. Id. at 1304-05.
An alien may qualify for asylum by presenting credible evidence showing
“(1) past persecution on account of her political opinion or any other protected
ground, or (2) a ‘well-founded fear’ that her political opinion or any other
protected ground will cause future persecution.” Sepulveda v. U.S. Att’y Gen., 401
F.3d 1226, 1230-31 (11th Cir. 2005). “[P]ersecution is an extreme concept,
requiring more than a few isolated incidents of verbal harassment or intimidation,
[and] mere harassment does not amount to persecution.” Sepulveda, 401 F.3d at
1231 (quotation marks and citations omitted); see also Djonda v. U.S. Att’y Gen.,
514 F.3d 1168 (11th Cir. 2008) (concluding that 36-hour detention, beating, and
threat of arrest did not amount to persecution); Silva v. U.S. Att’y Gen., 448 F.3d
1229, 1237-38 (11th Cir. 2006) (threatening note, anonymous threatening phone
calls, and being shot at by unknown assailants were insufficient to show past
persecution based on political opinion).
Moreover, “evidence that either is consistent with acts of private violence or
. . . that merely shows that a person has been the victim of criminal activity, does
not constitute evidence of persecution based on a statutorily protected ground.”
Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1259 (11th Cir. 2006). Protected grounds
are race, religion, nationality, membership in a particular social group, or political
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opinion. Sanchez v. U.S. Att’y Gen., 392 F.3d 434, 437 (11th Cir. 2004). If
substantial evidence supports the finding that an alien suffered particular harms
for reasons other than race, religion, nationality, etc., then the petition for review
will be denied. See, e.g., Scheerer v. U.S. Att’y Gen., 445 F.3d 1311, 1316
(11th Cir. 2006).
If the petitioner demonstrates past persecution, there is a rebuttable
presumption that he has a well-founded fear of future persecution. 8 C.F.R
§ 208.13(b)(1). If he cannot show past persecution, then the petitioner must
demonstrate a well-founded fear of future persecution that is both subjectively
genuine and objectively reasonable. Al Najjar, 257 F.3d at 1289.
An applicant may qualify for asylum even without establishing a well-
founded fear of future persecution if “(A) The applicant has demonstrated
compelling reasons for being unwilling or unable to return to the country arising
out of the severity of the past persecution; or (B) The applicant has established
that there is a reasonable probability that he or she may suffer other serious harm
upon removal to that country.” Mehmeti v. United States Att’y Gen., 572 F.3d
1196, 1200 (11th Cir. 2009) (quoting 8 C.F.R. § 1208.13(b)(1)(iii)). But, this
form of relief requires an applicant to show “severe harm” and “long-lasting
effects,” and is reserved “for the most extraordinary cases.” Id. at 1200-01
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(collecting cases from other Circuits).
An alien seeking withholding of removal under the INA similarly must
show that his “life or freedom would be threatened in that country because of the
alien’s race, religion, nationality, membership in a particular social group, or
political opinion.” See INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A); Ruiz, 440
at 1257. The burden of proof for withholding of removal, however, is “more
likely than not,” and, thus, is “more stringent” than the standard for granting
asylum. Sepulveda, 401 F.3d at 1232.
With the foregoing principles in hand, we turn to the two issues the petition
for review of the BIA’s October 13, 2009 order presents: they concern (1) the
credibility of Paulin Gjerkaj’s testimony, and (2) petitioner’s persecution on
account of political opinion.
B.
We begin by focusing on the three incidents that, according to Paulin
Gjerkaj’s testimony, supported petitioners’ applications for asylum and
withholding of removal. The first incident took place in 1985, after Gjerkaj asked,
at a public youth forum, why Albania didn’t “have religious places like everybody
else in the world.” The police came to his home, accused him of spreading
propaganda against the Communist Party, and arrested him. He was sentenced to
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prison without a trial; five years later he was released.
In 1992, he joined the Christian-Democratic Party due to his anti-
Communist political views; his wife and father also joined the Party. In 1997, two
masked men physically assaulted him and threatened to kill him if he continued
his political activities against the ruling Socialist Party. A second incident
occurred the same year; he was involved in an argument and fighting that occurred
at a newsstand. He described the incident in a statement appended to his asylum
application. At some point that year, he went into hiding fearing for his life.
In June 1998, Gjerkaj’s father was murdered “execution style” in front of
his house, and Gjerkaj came out of hiding to attend the funeral. He believed that
the members of the Socialist Party had committed the murder. Shortly after his
father’s death, he was detained for 78 hours. Someone told him that the Socialists
caused his detention because of his political activities. Following his release, he
again went into hiding, and stayed in hiding for nearly four years, until he came to
the United States in January 2002. He said that he left Albania due to his and his
family’s mistreatment on account of their membership in the Christian-Democratic
Party.
Mimoza Gjerkaj testified that she left Albania out of fear for her life. She
claimed that in April 2000, three masked men shoved her into a car and asked her
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for her husband’s whereabouts. When she refused to tell them, they struck her in
the face and threw her out of the car. Some relatives found her lying on the
ground unconscious. In November 2000, someone attempted to kidnap her
daughter, Renata, at a wedding reception. Gjerkaj’s cousin intervened and foiled
the attempt. She and Renata came to the United States in the next month.
In addition to his and his wife’s testimony, Gjerkaj presented several
documents, including State Department Country Reports for 2001, 2002, and
2006, and letters from the Christian-Democratic Party vouching for Gjerkaj and
his wife’s membership and experiences with the Party.
The IJ denied petitioners’ applications for asylum and withholding of
removal and ordered their removal because Paulin Gjerkaj failed to present
credible and consistent testimony relating to significant aspects of his claims of
persecution, and neither he nor Mimoza Gjerkaj established past persecution or a
well-founded fear of future persecution.
Addressing Paulin Gjerkaj’s testimony, the IJ made a clean credibility
determination, specifically citing material inconsistencies between the testimony
Paulin Gjerkaj gave on direct and cross-examination and statements he made in his
asylum application, especially as to the incidents that allegedly occurred in 1997.
For example, in his asylum application, he stated that in February 1997, someone
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hit him at a newsstand while he was reading a pro-Democratic Party newspaper,
but he listed no other incident of persecution occurring during that year. He did
not mention this newsstand event when he took the stand at the removal hearing,
however, but when questioned about it on cross-examination, he simply stated, “I
know it happened by the newsstand, but I don’t recall the details on that one.”
Focusing on 1997, he said that police grabbed him, beat him up, and “flat out” told
him that if he continued to participate in politics, they would kill him. Later that
year, two masked men jumped out of a car outside his house, beat him up, and
threatened to “eliminate” him if he continued to talk negatively about the Socialist
Party. He attempted to explain this inconsistency by stating that two incidents
occurred in 1997, one of which was the event at the newsstand, but this summary
was inconsistent with both his testimony on direct examination and what he stated
in his asylum application.
Referring to his father’s murder, the IJ noted that he was merely speculating
when he said that the culprits were Socialists. He believed this even though his
father had not been involved in politics and the Socialists had no reason to be
interested in him.
Turning to the testimony of Mimoza Gjerkaj, the IJ found that it failed to
show anything rising to the level of persecution. He credited her relation of the
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April 2000 encounter with the masked men, found that she did not suffer serious
harm, and that the experience did not arise to the level of persecution. As for the
attempted abduction of her daughter, she only speculated about why her daughter
would be a victim or who may have been behind the attempt.
After concluding that petitioners failed to make out a case for asylum, the IJ
found that they had not established a well-founded fear of persecution if removed
to Albania. Paulin Gjerkaj had remained there for nearly four years without harm
following his father’s death; Mimoza Gjerkaj had not been involved in politics;
the Socialist Party was no longer in control; the Democratic Party was in power;
and Albania was a parliamentary democracy.
We conclude that substantial evidence supports the IJ’s and BIA’s findings
that Paulin Gjerkaj’s testimony was not credible in significant respects, and the
agency’s conclusion that petitioners failed to establish past persecution or a well-
founded fear of future persecution. The IJ and the BIA did not err in concluding
that Paulin Gjerkaj was not entitled to humanitarian asylum because he did not
show that his imprisonment in 1985 was sufficiently severe or had long-lasting
effects, especially where he continued to oppose the Communist/Socialist Party
after being released from prison. See Mehmeti, 572 F.3d at 1200-01. He did not
establish that he suffered persecution beyond the time period of his original
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imprisonment. Assuming the accuracy of his testimony about the 1997 beatings,
the 1998 detention following his father’s death, and Mimoza’s account of her
alleged kidnapping, such mistreatment did not rise to the level of persecution,
especially where neither Paulin nor Mimoza Gjerkaj suffered major injuries. See
Djonda v. U.S. Att’y Gen., 514 F.3d 1168 (11th Cir. 2008) (concluding that 36-
hour detention, beating, and threat of arrest did not amount to persecution).
In sum, we deny the petition for review of the BIA’s October 13, 2009
removal order.
II.
Petitioners ask that we find an abuse of discretion in the BIA’s May 10,
2010 order denying their motion to reopen. See Abdi v. U.S. Att’y Gen., 430 F.3d
1148, 1149 (11th Cir. 2005). Motions to reopen may be filed before the BIA when
appropriate. See INA § 240(c)(7), 8 U.S.C. § 1229a(c)(7); 8 C.F.R. §§
103.5(a)(2), 1003.2(c), 1003.23(b)(3). Such motions are disfavored, especially in
a removal proceeding, “where, as a general matter, every delay works to the
advantage of the deportable alien who wishes merely to remain in the United
States.” Abdi, 430 F.3d at 1149 (quotation omitted). Our review is limited to
whether there has been an exercise of administrative discretion and whether the
exercise has been arbitrary or capricious. Abdi, 430 F.3d at 1149.
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A motion to reopen “shall state the new facts that will be proven at a
hearing to be held if the motion is granted, and shall be supported by affidavits or
other evidentiary material.” 8 U.S.C. § 1229a(c)(7)(B); Abdi, 430 F.3d at 1149.
Motions to reopen may be granted if there is new evidence that is material and was
not available and could not have been discovered or presented at the removal
hearing. See 8 C.F.R. § 1003.2(c)(1); see also Abdi, 430 F.3d at 1149. To make
such a showing, the alien “bears a ‘heavy burden,’ and must ‘present evidence of
such a nature that the [BIA] is satisfied that if proceedings before the [IJ] were
reopened, with all attendant delays, the new evidence offered would likely change
the result in the case.’” Ali v. U.S. Att’y Gen., 443 F.3d 804, 813 (11th Cir. 2006)
(quotation omitted).
We find no abuse of discretion in the BIA’s denial of petitioners’ motion to
reopen. The motion relied primarily upon evidence that petitioners could have
presented at their removal hearing. We therefore deny the petition to review the
BIA’s May 10, 2010 order.
PETITIONS FOR REVIEW DISMISSED, IN PART;3 DENIED IN PART.
3
See note 1 supra.
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