United States Court of Appeals
For the First Circuit
No. 05-1412
AGRON MEHILLI; SONILA MEHILLI; XHESIKA MEHILLI; XHONATHAN
MEHILLI; SERXHI MEHILLI;
Petitioners,
v.
ALBERTO GONZALES, Attorney General of the United States,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
Walter J. Gleason on brief for petitioners.
John M. Lynch, Attorney, Office of Immigration Litigation,
Civil Division, United States Department of Justice, Peter D.
Keisler, Assistant Attorney General, and Terri J. Scadron,
Assistant Director, Office of Immigration Litigation, on brief for
respondent.
December 22, 2005
LYNCH, Circuit Judge. Petitioners in this immigration
case sought asylum relief, withholding of removal, and protection
under the Convention Against Torture (CAT). The Immigration Judge
and Board of Immigration Appeals denied relief, finding the asylum
application time-barred and the other claims meritless.
Petitioners did not timely seek judicial review of that decision;
instead, they moved for reconsideration before the BIA, were
denied, and then sought judicial review of that latter denial.
Their petition presents a question of first impression in
this circuit as to limits on jurisdiction: whether 8 U.S.C.
§ 1158(a), which forbids direct review of the decision that an
asylum application is time-barred, applies equally to review of the
BIA's denial of reconsideration on the same issue. We hold that it
does, and therefore that we have no jurisdiction as to denial of
asylum to the petitioners.
We do have jurisdiction over the denial of
reconsideration as to withholding of removal and CAT protection.
Since we find that the BIA did not abuse its discretion in denying
reconsideration of these claims, we deny the petition for review.
I.
Petitioners are a married couple, Agron and Sonila
Mehilli, and their three children, Xhesika, Xhonathan, and Serxhi
Mehilli. All rely on the application for relief of the father,
Agron Mehilli ("Mehilli").
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A. Mehilli's Application and Testimony
Mehilli, a native of Albania, arrived in the United
States on a date which is the subject of some dispute. Mehilli
applied for asylum, withholding of removal, and CAT relief on June
23, 2001; in that application, he stated that he entered the United
States on December 5, 2000. He later changed that date of entry,
as we explain below. On January 14, 2002, the former Immigration
and Naturalization Service (INS)1 instituted removal proceedings
against him.
On May 9, 2003, Mehilli appeared before an initial
Immigration Judge. He testified that he left Albania in late
November of 2000 and traveled to Athens, then Milan, and finally
Los Angeles, arriving on December 5, 2000. Mehilli told the
initial IJ that he entered the United States using a false passport
bearing the name Fatmir Gjata. The initial IJ immediately asked
the government to check whether a Fatmir Gjata entered the country
on that date; the government ran a computer check and found no
matches. When this was relayed to Mehilli, he said, "I don't
believe it, because I came, that's the way I came from
Albania . . . that's the name." He added: "I cannot lie."
1
On March 1, 2003, the relevant functions of the INS were
transferred to the Department of Homeland Security, and the INS
subsequently ceased to exist. See Homeland Security Act of 2002,
Pub. L. No. 107-296, § 471, 116 Stat. 2135, 2205 (codified as
amended at 6 U.S.C. § 291(a)).
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Mehilli later appeared before a second IJ on three
different dates in 2003 to offer further testimony. At the first
of these hearings, the IJ said he would "start the case de novo"
and would take testimony even on issues covered by the initial IJ,
because he needed to make credibility determinations himself.
Mehilli then testified to a version of events that
differed substantially from both his earlier testimony and his
asylum application: he stated that he had traveled from Athens to
Milan using the name Fatmir Gjata, but that he had then traveled
from Milan to Los Angeles with a Slovenian passport bearing the
name Marko Brezar. He also stated that he arrived on May 4, 2001,
not December 5, 2000. Mehilli submitted as evidence a passport
bearing the name Marko Brezar; he also submitted a plane ticket
bearing the same name, which he said he had used to fly to Los
Angeles. Asked why he was changing his testimony, he testified
that "the person that gave me these passports and tickets" told him
"not to show the name and date that I arrived here."
During the same hearing, the second IJ addressed
Mehilli's motion for a new trial, in which he argued that the
initial IJ had behaved improperly by discounting Mehilli's
credibility and trying to impeach his testimony on peripheral
issues. The second IJ denied this motion, stating:
Your client has admitted to us that he was
lying to the Immigration Judge at the last
hearing. So I'm finding your motion here less
than convincing where . . . you seem to be
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complaining that the Judge was impugning your
client's credibility at the last hearing
unfairly, when, in fact, it turns out that
your client was lying to the Judge.
The IJ went on to find that, since Mehilli offered little proof
other than his own testimony as to his arrival date, and since he
was not credible given his false testimony under oath, he had not
proved that he arrived in the United States within a year before
filing his asylum application; this failure rendered him ineligible
for asylum.
The IJ stated that despite this ruling, he would hear
Mehilli's testimony as to the merits of all three claims for
relief.2 Mehilli testified as follows: He became a member of
Albania's Democratic Party in 1992 and played an active role in the
party. Beginning in 1993, he owned a bakery in Tirana, the
Albanian capital. In 1997, the rival Socialist Party came to
power, and Mehilli began to feel pressure from government
officials. In February 1997, members of the Socialist Party came
to Mehilli's bakery and told him to close it down; they told him
they were closing bakeries like his because they wanted to "take
the Democratic Party off the power." Mehilli refused. When
Socialist officials started paying return visits to bakeries,
asking them why they had not closed as ordered, Mehilli moved to a
2
The IJ noted that this would permit him to make an alternative
finding as to asylum, which would be necessary should the
determination of ineligibility be reversed on appeal.
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new space elsewhere in Tirana; the bakery occupied the first floor,
while Mehilli and his family lived upstairs. The bakery kept
running even after Mehilli left Albania, and Mehilli was still
receiving money from its operation, even up to the time of the
hearing.
In the summer of 2000, Mehilli testified, he received a
letter purporting to levy a $20,000 fine against his bakery; the
letter stated that if Mehilli did not pay, he would be killed. He
offered no evidence as to who might have sent the letter. However,
he testified that several days later, he went to pick up his voting
card and discovered that his and his wife's names were misspelled
on their cards; at this point, he testified, he realized the
incidents were connected -- Socialists had altered his card so he
could not vote, and the fine was being levied for political
reasons. He admitted on cross-examination, however, that many
voters experienced problems with the voter registration lists.
Several days after the voting card incident, Mehilli
testified, police officers came to his home at 5 a.m. and searched
it. He testified that the officers pushed him against a wall and
said, "we came to pick up the guns that you have illegally, because
you're a member of the Democratic Party, you have guns." Finally,
Mehilli testified that in November 2000, unknown assailants tried
to kidnap his younger son. He stated that one day, as his wife,
her brother, and his son were leaving the brother's home, three
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people "tried to grab" his wife and take her son from her arms. He
could not identify the assailants; he said they must have been
Socialists because the kidnapping attempt "was a continuance . . .
of their actions" against him.
Mehilli's wife, Sonila, also testified. As to the
attempted kidnapping, she testified that an armed man tried to grab
her son and she pushed him away; as she did so, her brother opened
fire, frightening the man off. She stated that she did not fall to
the ground at any time during the incident. As to the search,
Sonila Mehilli said she saw an officer push her husband, and that
no one else was pushed.
B. The IJ's Decision and Subsequent Appeals
The second IJ's oral decision of September 5, 2003
rejected Mehilli's application on numerous grounds. The IJ
reaffirmed his finding that Mehilli was time-barred from seeking
asylum. He noted that Mehilli's application was dated June 23,
2001, and that on the application Mehilli wrote that he had entered
the United States on December 5, 2000. However, he also noted that
Mehilli admitted testifying falsely under oath to the initial IJ.
The IJ found, based on these facts and his observations of
Mehilli's demeanor, that Mehilli was not credible. Since Mehilli
had relied largely3 on his own testimony to prove his date of
3
Mehilli also relied implicitly on several Albanian documents he
submitted, one of which appeared to be dated December 2000; his
claim (though never made clear on the record) seemed to be that the
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entry, the IJ found that Mehilli had not established an arrival
date and thus had not established that his application was filed
within one year of arrival.4 The IJ also rejected Mehilli's claim
that he should be exempted from the deadline due to extraordinary
circumstances -- specifically, ineffective assistance of counsel --
because Mehilli had not complied with the regulatory requirements
for making such a claim.
Nonetheless, the IJ proceeded, in the alternative, to
consider Mehilli's asylum claim, and other claims for relief, on
their merits.5 The IJ pointed to a number of inconsistencies in
Mehilli's story. These included, inter alia, (1) that Mehilli's
documents' existence demonstrated that he was still in Albania in
late 2000. However, the IJ explicitly found that the documents
were "not genuine"; he noted that the documents were not properly
authenticated and that someone apparently had attempted to alter
one of the documents by writing over the printed date with a pen.
4
The IJ found Mehilli's explanation for his false testimony --
that he had been told not to reveal the existence of the "Marko
Brezar" documents -- not credible.
5
An asylum applicant bears the burden of establishing
eligibility by proving he or she is a "refugee" -- that is, by
proving past persecution or a well-founded fear of future
persecution "on account of race, religion, nationality, membership
in a particular social group, or political opinion." 8 U.S.C.
§ 1101(a)(42)(A). "[I]n order to establish refugee status, an
alien must support his claim of persecution through credible
testimony." Nikijuluw v. Gonzales, 427 F.3d 115, 121 (1st Cir.
2005). Because withholding of removal places a higher burden of
proof on the applicant than does asylum, failure to carry the
burden for asylum necessarily dooms a withholding claim. See,
e.g., Palma-Mazariegos v. Gonzales, 428 F.3d 30, 37 (1st Cir.
2005). As to CAT protection, an applicant must show that he or she
"more likely than not . . . would be tortured if removed." 8
C.F.R. § 208.16(c)(2).
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testimony as to the search was at sharp variance with affidavits in
which he said twenty soldiers tore his house apart and pushed him,
his wife, and his children; and (2) that his wife's testimony that
she never fell during the kidnapping attempt contradicted Mehilli's
statement in an affidavit that she was pushed to the ground. Based
on the inconsistencies and on Mehilli's initial false testimony,
the IJ again found Mehilli not credible.
Further, the IJ found that even assuming Mehilli was
credible, Mehilli had not proved persecution. He found that the
harms Mehilli described were not serious enough to constitute past
persecution, and that even if they were, Mehilli had not
established a nexus with a protected ground. As to fear of future
persecution, the IJ found that Mehilli had offered no proof; he
noted that Mehilli's family continued to live safely in Albania and
that his bakery continued to operate without apparent problems. As
to withholding of removal and CAT protection, the IJ found that
Mehilli's inability to meet the burden for asylum doomed his
withholding claim and that Mehilli had failed to adduce any
evidence of torture.
Mehilli appealed to the BIA, arguing that the IJ's
findings had been erroneous and that his consideration of Mehilli's
false testimony constituted a denial of fundamental fairness. On
December 17, 2004, the BIA affirmed using its "adoption and
affirmance" procedure. It noted that Mehilli's fundamental
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fairness argument was meritless because the IJ did not err in
considering Mehilli's "admittedly false testimony."
Mehilli did not seek judicial review of that decision.
Instead, he moved for reconsideration. On February 24, 2005, the
BIA denied the motion. Mehilli timely petitioned for review of
this denial.
II.
On appeal, Mehilli makes two primary arguments. First,
he says the BIA should have reconsidered his case because the
second IJ improperly characterized his false testimony before the
initial IJ as perjury; he argues that that characterization "so
impermissibly burdened the evaluation of [his] credibility and the
authentication of his documents so as to implicate fundamental
fairness principles."6 Second, he argues that the IJ relied
heavily on State Department reports concerning improving conditions
in Albania and that this reliance "precluded discrete consideration
of the Petitioners' particular circumstances of persecution." The
6
Mehilli also argues that he was denied fundamental fairness
because the IJ incorrectly found that his documents had to meet the
authentication requirements of 8 C.F.R. § 287.6(b), which applies
to documents from nations not signatory to the Hague Convention on
Abolishing the Requirement of Legalization for Foreign Public
Documents, Oct. 5, 1961, 33 U.S.T. 883, 527 U.N.T.S. 189.
Mehilli's argument is that while it is true that Albania was not a
signatory at the time of his hearings before the IJ, "in practice"
the U.S. Embassy in Tirana treated Albania as if it were. This
argument has no merit: 8 C.F.R. § 287.6 contains no such exception
for Albanian documents, and Mehilli presents no evidence that such
an exception exists.
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government, meanwhile, argues that under 8 U.S.C. § 1158(a)(3),
this court lacks subject matter jurisdiction to review the BIA's
refusal to reconsider its decision that Mehilli's asylum claim was
time-barred; as to the other relief, the government argues there
was no abuse of discretion in denying reconsideration.
A. Jurisdiction Over Denial of Motion to Reconsider as to Asylum
Two jurisdiction-limiting statutes are at play. The
first, 8 U.S.C. § 1158(a)(3), enacted in 1996,7 provides that "[n]o
court shall have jurisdiction to review any determination of the
Attorney General under paragraph (2)." This limitation refers,
inter alia, to determinations as to whether the applicant complied
with the one-year filing deadline for asylum, id. § 1158(a)(2)(B),
and as to whether extraordinary circumstances excuse an alien's
belated filing, id. § 1158(a)(2)(D).
The second provision was added in 2005. As part of the
REAL ID Act, Congress reframed the limits on jurisdiction to
provide an exception:
Nothing in subparagraph (B) or ©, or in any
other provision of [the Immigration and
Nationality Act] (other than this section)
which limits or eliminates judicial review,
shall be construed as precluding review of
constitutional claims or questions of law
raised upon a petition for review filed with
an appropriate court of appeals in accordance
with this section.
7
See Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 (IIRIRA), Pub. L. No. 104-208, § 604, 110 Stat. 3009-691.
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REAL ID Act of 2005, Pub. L. No. 109-13, § 106(a)(1)(A)(iii), 119
Stat. 231-310 (codified at 8 U.S.C. § 1252(a)(2)(D)); see also Sena
v. Gonzales, 428 F.3d 50, 52 (1st Cir. 2005) (per curiam) (citing
§ 106(a)(1)(A)(iii) and concluding that the court had jurisdiction
because constitutional and legal questions were presented).
These provisions present two questions. The first is
whether a denial of reconsideration -- as opposed to the initial
BIA decision on appeal from the IJ -- is a decision "under
paragraph (2)" of § 1158(a) such as to strip this court of
jurisdiction. Second, if we answer that question in the
affirmative, we must examine whether jurisdiction has been restored
by § 1252(a)(2)(D).
1. Section 1158(a)(3) and Motions for Reconsideration
As to the first question, we hold that Mehilli has not
gained a right to judicial review of the BIA's timeliness
determination that he would not have had on a petition from an
initial rejection by waiting and then attacking a denial of
reconsideration of the same issue. Recognition of jurisdiction in
these circumstances would circumvent both the purposes of the
jurisdictional limitation and the purposes of reconsideration.
This is also the conclusion reached by other circuit courts that
have addressed the issue under related statutory provisions. See
Rodriguez v. Ashcroft, 253 F.3d 797, 800 (5th Cir. 2001) ("[I]f we
are divested of jurisdiction to review an original determination by
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the Board . . . we must also be divested of jurisdiction to review
the Board's denial of a motion to reopen [on the same grounds.]");
see also Mariuta v. Gonzales, 411 F.3d 361, 364-65 (2d Cir. 2005)
(where an order denying a motion to reopen is based on an
evaluation of the right to the underlying relief sought, the order
is "under" the statute controlling the underlying relief); Durant
v. U.S. INS, 393 F.3d 113, 115 (2d Cir. 2004) (orders of removal
and denials of motions to reopen "are sufficiently connected" that
permitting review of the latter when the INA bars review of the
former "would provide an improper backdoor method of challenging a
removal order"); Pilch v. Ashcroft, 353 F.3d 585, 587 (7th Cir.
2003) (applying an INA jurisdictional bar to denial of a motion to
reopen where petitioners' "principal claim" rested on a decision
entrusted to the discretion of the Attorney General).8 This leaves
8
The government suggests in its brief that the Ninth Circuit took
a contrary position in Medina-Morales v. Ashcroft, 371 F.3d 520
(9th Cir. 2004). It is true that Medina-Morales held that a
judicial review bar imposed by the INA –- specifically, 8 U.S.C.
§ 1252(a)(2)(B)(I) -- did not apply to review of a BIA denial of a
motion to reopen. 371 F.3d at 527. Nonetheless, we doubt Medina-
Morales is in conflict. There, petitioner initially applied for
adjustment of status, then abandoned the claim, and later moved to
reopen to reassert it. Id. at 524. The BIA denied his motion to
reopen. Id. The Ninth Circuit concluded that it had jurisdiction
despite the general statutory bar on review of adjustment-of-status
determinations. It reasoned that since petitioner had abandoned
his adjustment-of-status claim, the IJ had never ruled on
adjustment of status at all. Id. at 527. Therefore, the denial of
reopening was not a decision "under" the adjustment-of-status
provision, but instead a decision "under" the provision that had
provided grounds for petitioner's removal -- a provision over which
the court had jurisdiction. Id. Medina-Morales thus is compatible
with the proposition that when an order denying reconsideration
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the question of the effect of the REAL ID Act's redefinition of the
jurisdictional limitation.
2. The Effect of Section 1252(a)(2)(D)
The relevant provision, 8 U.S.C. § 1252(a)(2)(D),9 states
in relevant part that "[n]othing in subparagraph (B) or ©, or in
any other provision of [the INA] (other than this section) which
limits or eliminates judicial review, shall be construed as
precluding review of constitutional claims or questions of law."
Under the terms of this limited jurisdictional grant,
"discretionary or factual determinations continue to fall outside
the jurisdiction of the courts of appeals," Vasile v. Gonzales, 417
F.3d 766, 768 (7th Cir. 2005), and BIA findings as to timeliness
and changed circumstances are usually factual determinations, see
Chacon-Botero v. U.S. Att'y Gen., 427 F.3d 954, 957 (11th Cir.
2005); Ramadan v. Gonzales, 427 F.3d 1218, 1222 (9th Cir. 2005).
Here the untimeliness finding was a factual one, based on Mehilli's
lack of credibility.
Mehilli, however, makes what he purports to be a
constitutional argument as to the timeliness finding. He argues
that (1) the second IJ's characterization of Mehilli's false
engages a previous decision "under" a given provision, the order is
also a decision "under" that underlying provision.
9
The subsection took effect immediately upon enactment in May
2005 and "appl[ies] to cases in which the final administrative
order of removal . . . was issued before, on, or after the date of
the enactment." REAL ID Act § 106(b).
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statements before the first IJ as "perjury" was incorrect because
Mehilli withdrew the false statements, and therefore they did not
constitute perjury as a legal matter, and (2) the perjury
characterization so infected the second IJ's credibility
determination as to render the decision as to timeliness, and the
proceedings in general, fundamentally unfair and a violation of due
process requirements.
The argument fails to bring Mehilli's asylum claim within
the REAL ID Act exception. A claim would at least have to be
colorable for the exception to apply. As the Ninth Circuit has
said in a related context:
[A] petitioner may not create the jurisdiction
that Congress chose to remove simply by
cloaking an . . . argument in constitutional
garb. . . . [T]o invoke our jurisdiction, a
petitioner must allege at least a colorable
constitutional violation. To be colorable in
this context, the alleged violation need not
be substantial, but the claim must have some
possible validity.
Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir. 2001)
(citations omitted) (quoting Flores-Miramontes v. INS, 212 F.3d
1133, 1135 n.3 (9th Cir. 2000); and United States v. Sarkisian, 197
F.3d 966, 983 (9th Cir. 1999)) (internal quotation marks omitted).
Torres-Aguilar noted that any other outcome "would allow [aliens]
to circumvent clear congressional intent to eliminate judicial
review." Id. We do not have to decide now how strong a showing of
a constitutional claim is needed to give us jurisdiction.
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Mehilli's argument is not even colorable: a routine credibility
finding by an IJ reasonably based on false statements by an
applicant cannot possibly raise a due process "fundamental
fairness" argument. The argument is frivolous.10
Further, to the extent Mehilli's brief may be read as
arguing (1) that, as to credibility, the IJ incorrectly weighed the
evidence, failed to explicitly consider certain evidence, or simply
reached the wrong outcome, and (2) that that purported error
constituted a due process violation, Mehilli still fails to state
a colorable constitutional claim within the ambit of
§ 1252(a)(2)(D). As we have held, such arguments are not properly
viewed as constitutional challenges at all, but instead as simple
claims that substantial evidence did not support the IJ's
credibility finding. See Albathani v. INS, 318 F.3d 365, 372 (1st
Cir. 2001) (stating that petitioner's argument that the IJ
"improperly overlooked evidence" and in so doing violated
petitioner's due process rights "is, in our view, just a variation
on a substantial evidence challenge, and so we apply the usual
substantial evidence standard"); see also Kalitani v. Ashcroft, 340
F.3d 1, 5 (1st Cir. 2003) ("Kalitani's [due process] argument boils
down to an assertion that the IJ should have believed her. But the
10
The argument would still fail for this reason even if it had
been presented on a direct petition for review. Mehilli gains no
further rights to review by making the argument on a motion for
reconsideration.
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IJ was not compelled to believe her, and substantial evidence . .
. supports his decision not to do so.").
B. Withholding of Removal and CAT Protection
There is no question that we have jurisdiction over the
denial of reconsideration as it relates to the withholding of
removal and CAT claims. We review BIA decisions on motions to
reconsider solely for abuse of discretion. Hossain v. Ashcroft,
381 F.3d 29, 31 (1st Cir. 2004). "In the reconsideration context,
we will find an abuse of discretion if the denial was made without
a 'rational explanation, inexplicably departed from established
policies, or rested on an impermissible basis' (such as race)."
Zhang v. INS, 348 F.3d 289, 293 (1st Cir. 2003) (quoting Nascimento
v. INS, 274 F.3d 26, 28 (1st Cir. 2001)).
In its denial of reconsideration, the BIA stated that it
was "not persuaded" that the BIA relied too heavily on country
condition reports about Albania prepared by the State Department.
It also stated that (1) the IJ properly found that Mehilli was not
credible, (2) the IJ properly found that even if Mehilli were
credible the incidents he described did not constitute persecution,
(3) it saw "no basis" to disturb its finding that Mehilli's hearing
was fundamentally fair, and (4) Mehilli had demonstrated no error
of fact or law in the BIA's prior decision.
There was no abuse of discretion. In the end, Mehilli's
own testimony was supportably found not credible. His two
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arguments on reconsideration -- fundamental fairness and over-
reliance on country condition reports -- do not undercut that
finding. That ends the matter. See Settenda v. Ashcroft, 377 F.3d
89, 93 (1st Cir. 2004) ("The IJ's well documented finding that
Settenda failed to support his application for asylum and
withholding with credible testimony dooms his claim on appeal.").
III.
The petition for review is denied.
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